Sweeney, Desmond --- "Book Review -- Treaties and Indigenous Peoples" [1992] AboriginalLawB 55; (1992) 1(59) Aboriginal Law Bulletin 15

• Book Review – Treaties And Indigenous Peoples

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Book Review –

Treaties and Indigenous Peoples

Ian Brownlie (edited by F. M. Brookfield)

Clarendon Press, Oxford, 1992,105 pp.

Reviewed by Desmond Sweeney

Treaties and Indigenous Peoples comprises the text of the 1990 Robb Lectures, given at the University of Auckland by Ian Brownlie QC, Chichele Professor of Public International Law at the University of Oxford, as subsequently edited, with additional reference material by Professor Brookfield of Auckland University.

The book considers the Treaty of Waitangi from the perspective of international law and human rights standards. While the principal focus is New Zealand and the Treaty of Waitangi, it provides a wealth of material and references in relation to indigenous peoples in the international context.

Chapter One considers the notion of equity between early (or first) and subsequent arrivals in a country. It outlines the history of the Treaty of Waitangi 1840, the establishment of the Waitangi Tribunal under the Treaty of Waitangi Act 1975 and summarises the major claims heard by the Waitangi Tribunal and the principles propounded by the Tribunal for the interpretation of the Treaty.

Chapter Two explores the concept of group rights in the context of public international law. Brownlie observes that while the concept of group rights may incorporate individual rights which tend to be exercised as a group, (e.g. the right to freedom of religion and to non-discriminatory treatment) in many circumstances the concept extends further and recognises the cultural or other identity of the group in a manner which is not guaranteed by the collective exercise of individual rights. He argues that the collective exercise of individual rights is insufficient to protect group rights in three situations: to maintain claims for positive action to protect the cultural or linguistic identity of a group (particularly where the group is physically interspersed amongst a wider community); to recognise the special nature of the traditional links between certain indigenous peoples and land; and to support the principles of self-determination.

Chapter Three explores the relevance of the concept of indigenous peoples. A brief look is taken at the work of the United Nations Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities and its Working Group on Indigenous Populations, including the draft Universal Declaration on the Rights of Indigenous Peoples and ILO Conventions 107 and 169.

The final chapter - entitled, 'Waitangi: More a Problem than a Solution?' - addresses whether the Treaty of Waitangi is an appropriate vehicle for the advancement and protection of Maori interests. Given the legal and political significance of the Treaty, Brownlie states that its role cannot be ignored, and concludes that, despite its limitations, the Treaty combined with the application of general international human rights standards does provide a satisfactory vehicle. He notes that some of the problems in adjudicating disputes under the Treaty have been overcome by the mechanisms in the Treaty of Waitangi Act 1975 and, in particular, that the approach of applying 'the principles of the Treaty of Waitangi rather than interpreting the texts has circumvented, to a degree, questions of interpretation of the different texts and historical arguments surrounding the Treaty itself. Nevertheless, he observes that the piecemeal approach of the Treaty of Waitangi Act and limitations on the powers and role of the Waitangi Tribunal give rise to numerous problems, which he then goes on to discuss.

In relation to traditional land rights, Brownlie observes that "... the principle of common-law aboriginal title appears to be complementary to the operation of the Treaty, and compatible with public international law."(p.83) As a result he is critical of the reasoning of the High Court of Australia in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 in that it held that the Pitjantjatjara Land Rights Act 1978 (SA) was discriminatory and was only saved from invalidity by being classified as a special measure under Article 1, para 4, of the International Convention on the Elimination of All Forms of Racial Discrimination. In relation to the recognition of the traditional ownership rights of the Pitjantjatjara, he argues:

"The fact that traditional ownership is peculiar to aborigines does not make recognition of such land rights discriminatory in law. The legal recognition has an objective basis; it is not arbitrary and is discriminatory only in the sense that a reasonable and legitimate policy coincides with racial origin, in the same way as pregnancy coincides with womanhood. Thus the first principle to apply is to ask whether the differentiation in the legal sense has a reasonable cause and relates to a legally relevant basis for different treatment [pp.44-45] ... It is only when the reference to race lacks a reasonable cause and is arbitrary that the rule concerned becomes discriminatory in the legal sense. [p44]"

Brownlie argues against the invoking of the concept of indigenous peoples in New Zealand law, other than to the extent already recognised by the Treaty, stating that.,

'The presence of these elements of flexibility [in human rights instruments] and controlled affirmative action strongly suggests that the stock of human rights conventions, together with principles derived from general international law, provide very adequate means for the management of intercommunal relations and associated issues [i.e. for the advancement and protection of indigenous people].' (p.94)

He argues that the concept of indigenous peoples (as opposed to general human rights standards including group rights to the maintenance of one's culture) should not be resorted to other than when the "special vulnerability"(p.94) of the group requires the adoption of special measures beyond those encompassed in general human rights concepts. While noting that international conventions do not relate to the problem of historical equity between indigenous peoples and subsequent arrivals, he argues that it is more appropriate to treat land rights on the basis of dispossession of traditional owners, rather than by attaching special status to indigenous peoples. However, this argument fails to be convincing, at least in so far as previous dispossession is concerned, where the statute of limitations has extinguished common law remedies.

A major shortcoming of the book as a research tool, is the omission of an index of cases and bibliography. This is unfortunate as the footnotes to the text provide extensive references to New Zealand and overseas cases, international human rights declarations and commentaries.

The book is a useful commentary on the potential role and limitations of a treaty between indigenous people and subsequent settlers. While focusing on New Zealand, it nevertheless provides much material relevant to the wider context of protection of rights of indigenous peoples. The discussion is relevant to the role of the Council of Reconciliation and the ongoing discussions about a compact - or 'makarrata' - between Aboriginal peoples and the wider Australian community.