Aboriginal Law Bulletin
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by Noel Pearson
“We have to make a harsh decision, we have to decide if we are part of Australian society”.
Michael Mansell
“We have to make peace with the Aboriginal people”.
Prime Minister Paul Keating
Are we Aboriginal Australians or Australian Aborigines? This question was posed by Michael Mansell at the Aboriginal Peoples and Treaties Seminar hosted by the Aboriginal Law Centre at the University of New South Wales in February 1989.1 Are the indigenous people of this country citizens of the predominantly non-indigenous nation of Australia, or are they citizens unto themselves? In surveying the four options which were considered in the Makarratta Report: by the Senate Committee on Constitutional and Legal Affairs for the establishment of some form of agreement between Aborigines and non-Aborigines, Mansell argued that there was a fifth option. This was full sovereignty inhering in Aboriginal people who would be an independent nation as understood in international law.
Whilst the proposal caused a universal furore amongst apoplectic white politicians and media, the fact remains that the ideological chord struck by Mansell found widespread resonance in the Aboriginal community. On one level Mansell's claim to Aboriginal sovereignty is based on the questionableness in international law of the validity of the British acquisition of sovereignty over Australia, and the implied extinguishment of any pre-existing Aboriginal sovereignty.
However the High Court's judgment in Mabo & Ors v The State of Queensland3 unanimously confirmed that the validity of the acquisition of sovereignty by the Crown is not justiciable in municipal courts. The acquisition of sovereignty is an Act of State which cannot be reviewed. The decision in Mabo confirmed the position in Coe v The Commonwealth 4, and it is now settled law that no challenges to the validity of Australian sovereignty will be entertained before an Australian court. Which leaves the question of whether the issue could be aired before international fora. Aboriginal leaders supportive of the Mansell position look to the International Court of justice as a means of determining the issue. However Frank Brennan SJ expresses the following view:
"Such an assertion [of sovereignty] is unarguable in Australian courts. Neither will it be put by any party with standing before the International Court of Justice. The claim to Aboriginal sovereignty is a political claim, not a justiciable legal claim in either international or domestic courts. It will be sterile ground to continue the debate on categorisation as to whether sovereignty was asserted by settlement, conquest, cession or prescription."5
At another level Mansell's ideology articulates the stark alienation of Aboriginal people from the Australian nation, something with which Aboriginal people from throughout the continent can identify. He also holds out no hope for any successful reconciliation which would see Aboriginal people count themselves as Aboriginal Australians. At the Treaty Seminar he said it was fantasy to expect Aboriginal people to live side by side with the redneck police sergeant down the road as fellow citizens of the one nation. There is an emotional truth in Mansell's treatise which is readily apparent from history and the daily experience of Aboriginal people throughout the continent.
Presumably the reconciliation initiative established by the Hawke Government is aimed at changing the fundamental antipathy to indigenous people in the social, political and economic landscape so that they can occupy a place in Australian society as citizens who feel they belong. Mansell and many others in the Aboriginal community will not be holding their breath.
Mansell clearly believes that any compromise from Aboriginal people asserting full-blown sovereignty, would be to sell ourselves short and would be conceding legitimacy to the colonial invasion that has left indigenous people dispossessed, destitute and pariahs in their own country. Therefore he has pursued a strategy of political actions which are consistent with his clearly expressed ideological position. The Aboriginal Provisional Government (APG) is a manifestation of this strategy.
But how effective is this strategy and how realistic is the hope that recognition of separate nationhood can be achieved?
It has become an article of faith in the Aboriginal land rights movement that, given the fact that Aboriginal people never ceded their lands or their sovereignty to the British colonisers, Aboriginal people were a sovereign people and sovereignty still inheres in them. The restoration of that sovereignty or its recognition is a fundamental long term goal of the movement. Arguments to this effect are commonplace in Aboriginal meetings and conferences from Perth to Cairns.
To question the feasibility of this claim is tantamount to heresy and adherence to the idea of sovereignty by Aboriginal leaders is frequently a badge of credibility; anything else, and one risks being labelled an antipodean Uncle Tom and accused of compromising the realistic expectations of indigenous people.
Despite the fact that notions of sovereignty are widespread through the Aboriginal community, Mansell remains the only advocate who has undertaken the formidable task of setting out some strategies for the achievement of Aboriginal nationhood, and who has attempted to develop a cogent concept of how an Aboriginal nation of circa 230,000 people spread throughout a vast continent occupied by 17 million members of another nation, might look and work. The details are unclear and the schema thus far uncompelling. There are a vast number of fundamental problems and questions which need to be addressed: Does sovereignty inhere in Aboriginal groups at the national level or does it exist at the local level (and at which level)? Does the concept of an Aboriginal Nation have roots in the pre-European past?
Among the followers of the sovereignty agenda there is an assumption that an Aboriginal Nation existed prior to European invasion - which may be a difficult proposition to support, even for Aboriginal people who would insist that the local groups which occupied and owned land under their own laws and institutions possessed sovereignty at the local level.
The fact is that our advocates for full nationhood status have failed to clarify these issues and apart from bare assertions, witt few exceptions we have avoided grappling with the huge problems which face out claims. It is clear that there is considerable confusion over many of these ideas in the Aboriginal community, and the absence of effective debate or development of these ideas by the Aboriginal community mean: that for the most part the ideology of nationhood remains retarded,, having failed to progress beyond 1970s style rhetoric and sloganeering. As a consequence the sovereignty concept faces huge problems within the Aboriginal community and the realpolitik of jealous Aboriginal localism, lei alone the realpolitik context of the colonial state. The onus lies with those who insist or this agenda to provoke energetic debate and thought regarding the concept and then tc suggest an accompanying strategy. That the failure to deal with these difficult problems, and the continual assertion of ill-conceived slogans on sovereignty, will embarrass the Aboriginal rights cause, is clear.
Having said that, let me make the following points. Firstly, as a matter of international legal theory, the validity of the acquisition of sovereignty over Australia by the British Crown is a moot point. Aboriginal people are perfectly entitled to agitate the issue where they can. However even if the unlikely happened and the issue was aired before the International Court of Justice, it is by no means an iron-clad case that international law would not confirm the validity of Commonwealth sovereignty in Australia. In any case all of the evidence appears to support Brennan's assessment that there is no way that the issue will ever be entertained at the international level.
Secondly, a concept of sovereignty inhered in Aboriginal groups prior to European invasion insofar as people have concepts of having laws, land and institutions without interference from outside of their society. .(This must be a necessary implication of the decision in Mabo against terra nullius.) However I would question whether the concept of sovereignty as understood in international law is an appropriate expression of this concept. Indeed we need to consider whether at all it is even necessary for these Aboriginal concepts to be expressed as full-blown sovereignty of the nation-state variety. The Wik peoples or the Guugu Yimithirr of Cape York who met James Cook in 1770 possessed concepts of 'sovereignty' or jurisdiction prior to the coming of Europeans and these still remain. In the traditional domain this concept was probably what justice Blackburn attempted to describe in that famous passage from Millirrpum when he said:
"The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called 'a government of laws, and not of men', it is that shown in the evidence before me."6
Indeed it seems to me that the concept of sovereignty developed in western legal tradition to describe nation states is artificial if applied to the Aboriginal relationship to land which is at the core of the indigenous domain. A more appropriate concept is reflected in the judgment of Judge Amoun in the Western Sahara Case,7 cited by the Court in Mabo, which stated:
"Mr Bayona-Ba-Meya, goes on to dismiss the materialistic concept of terra nullius, which led to this dismemberment of Africa following the Berlin Conference of 1885. Mr Bayona-Ba-Meya substitutes for this a spiritual notion: the ancestral tie between the land, or 'mother nature', and the man who was born therefrom, remains attached thereto, and must one day return thither to be united with his ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty."(emphasis added)
Now whether the recognition of this spiritual relationship to land is best reflected in the recognition of Aboriginal reoples constituting a fully-fledged nation or nations, is still for us to consider. My own initial view is that, apart from :being unachievable, it may not be necessary. However it may be that we can reserve judgment on this question.
Recognition of this 'local indigenous sovereignty' could exist internally within a nation-state, provided that the fullest rights of self-determination are accorded.
And here we have the problem. The Australian State has consistently failed to understand and to accept the right of its indigenous peoples to be allowed the fullest rights of self-determination. It is little wonder that calls for a separate nation find ready adherents in the Aboriginal community.
Brennan is not hopeful of the possibilities which may emerge from the strugglee for indigenous rights at the international level, and he makes this clear in a chapter in his book Sharing the Country8 tellingly titled "The Clouds of Geneva". Whilst indigenous groups are agitating Their rights to sovereignty at the international level, the best outcome which could result from this process is not the recognition of fourth world peoples as sovereign nations, but rather it will be confined to setting higher standards for the recognition by States of indigenous rights to self-determination within the nation. And the quality of these standards, and the timing of their acceptance by nation-states jealously guarding their integrity against internal agitation by indigenous peoples, is not assured.
So where does this leave us? Our position is not substantiallydifferent from that of indigenous peoples in New Zealand, Canada and the United States. Indigenous groups in these jurisdictions are variously engaged in carving out the fullest rights of self-determination for their people within the existing State, and there are those within all jurisdictions who advocate the recognition of full sovereign status for indigenous groups.
At the New South Wales Land Council's Mabo Conference in March 1993, the visiting Indian lawyer from the United States, Robert Williams, who has been involved in political and legal activism with native groups in the United States, unequivocally dismissed the sovereign nation agenda as 'rhetoric'. For a long-time political and legal activist who was clearly determined to achieve maximum rights of self-government and self-determination, Williams was surprisingly forthright in his view that the sovereignty agenda was a futile diversion. There was no way that the United States, or for that matter, Australia, is going to abandon its sovereignty in favour of indigenous claims to absolute sovereignty - and anyway, he argued, of what relevance and importance to indigenous people is the power to control defence and other typical state responsibilities, when their aims for selfdetermination and self-governance can be accommodated within the nation so that they could control their own resources, service delivery, local judicial systems, educational, cultural and economic institutions? Particularly where they could be free from local and provincial legislative control and subject only to the control at the federal level, and where their rights are entrenched at law and not subject to political whim?
Williams' bottom-line on sovereignty was that it is not merely a legal condition, but it is foremost a highly political one where might is ultimately right. Mansell is not wrong when he states that so far as sovereignty is concerned, the unstated conclusion in Mabo is that the only means by which indigenous peoples may recover their sovereignty is by the means which they lost it.9 But this is a rhetorical position because when we try to identify the strategy to accompany this conclusion, we are left sitting on our hands. And this is largely the condition into which our advocacy of the full-blown sovereignty agenda has led us, a condition of haplessness, where rhetorical flourishes at the next gathering of the faithful are the most that we can look forward to. And this is the sum total of our strategy.
Obviously the struggle for indigenous rights will always take place at different levels, and there is no single strategy which is going to advance the cause 10 The Mansell agenda is often interpreted as a deliberate strategy to set the extreme position, with a view to settling for the best compromise at some stage when the adoption of this strategy has extracted maximum concessions from the State. It takes time and a host of other strategies before it can be judged that the best position has been achieved. And clearly there will be those who will assert that the struggle will never end until absolute independence is achieved. But who can hold their breath for this?
Whilst the notion of perpetual struggle and no compromise until absolute independence is achieved is understood, there are problems with this approach which we need to consider. Firstly we must assess the overall impact which an all-or-nothing sovereignty strategy might have on other strategies which we are also pursuing. And the key strategy in our case is that of land rights.
How much is the sovereignty strategy impeding our case for greater control and ownership of our traditional lands? A fundamental lesson to be drawn from Professor Henry Reynolds seminal history The Law of the Land11 is that the colonial invaders denied Aboriginal land rights by conflating land ownership with sovereignty. For to concede land ownership to Aboriginal people would be to concede sovereignty, and the logical result would be for the British to abandon their claim and presence in Australia. Reynolds shows how effectively colonial landowners and politicians used this argument to deny Aboriginal people their land rights under the very laws which were supposed to govern colonial 'settlement'. Reynolds argued that the Aboriginal land rights cause had more to gain from pursuing their legal claim to land within the context of colonial sovereignty, than by seeking to displace that sovereignty and playing into the hands of those who most benefit from this scaremongering. Indeed the current opponents of Aboriginal land rights, by invoking notions of a 'black state, are using the very same arguments as their ideological forebears to defeat our claims to land rights within the white political system.
Time is also a factor. The colonisation process, whilst having wrought a devastating loss of life and land throughout the continent, is still not over. There are people whose lands and societies are still at the frontier off exploitation, and their position needs to be preserved. They need land rights recognition immediately, before the colonisation process not only totally dispossesses them, but makes the prospect of subsequent restoration of land impossible. The traditional owner in Cape York does not want to wait another few years for her land to be alienated by mining development. The prospects for getting land back, when one's traditional lands are covered by sugar cane fields, becomes very dim. When it comes to political strategy time is not as pressing an issue for those who have lost everything - they can holdout for the day that the comprehensive and perfect settlement is struck. Simply, some cannot afford to wait for the perfect settlement, intermediate compromises may be necessary to preserve their positions.
What we must think seriously about is the extent to which our advocacy of the sovereignty agenda reduces the gains that people could otherwise make via appropriate pragmatism. Without totally dismissing the sovereignty agenda we must become more sophisticated in the way in which we combine various strategies. Sometimes it may be more appropriate to pursue different arguments in different contexts, and to reduce and turn up the volume in accordance with what will produce the maximum result for our people. Opportunities are being lost due to a failure of Aboriginal leadership to be more pragmatic and calculating in determining appropriate strategies. Instead of tying themselves to an ideologically pure approach which drowns out alternative approaches, survival necessitates opportunism and flexibility. Frank Brennan's forthright view is that:
"For too long Aborigines have missed out on their entitlements because there has been insufficient hard-headed political analysis by them of what is achievable whether in Brisbane, Sydney, Canberra or Geneva."12
The Chairman of our Land Council, Robert Holroyd, once likened our cause to that of guerilla war, sometimes we might have a front-on fight, but most of the time we have to 'sneak up on them'. Our comparative power leaves us with no choice, unless someone can identify an alternative strategy.
As a matter of law the decision of the High Court in Mabo has established that the conflation of sovereignty with land ownership is wrong. And therefore Aboriginal ownership of land survived the acquisition of sovereignty by the British Crown in Australia. Secondly the law now recognises Aboriginal law as a source of law, and as the basis for the indigenous right to land. Mabo now compels the non-Aboriginal Nation to negotiate and settle with the indigenous people of Australia the following issues:
In his Redfern Park Statement (see this issue p.4) the Prime Minister asserted that "Mabo establishes a fundamental truth and lays the basis for justice."13 Furthermore, the Prime Minister's expressed desire to make ‘peace’14 with Aboriginal people, gives some hope that perhaps the Commonwealth may be prepared to take the strides necessary before a genuinely new partnership can be created between the colonisers and the colonised. Given the deep sense of alienation from the life of the Nation felt by indigenous people, the notion of 'peace' could not be more apt.
.If the Commonwealth is genuine in its desire to secure reconciliation with Aboriginal people then full and uncompromising respect for those legal rights and the historical truths established by Mabo is not negotiable. For a people to have been denied their legal rights under the laws of the colonisers for the past 200 years, to face the prospect of further denial and extinguishment of rights - after the country's highest institution has declared their existence - would be tantamount to declaring war against them. There will never be peace and reconciliation if legal rights under Mabo are denied or rendered impotent, and never again will there be an opportunity for a genuine accommodation of indigenous people within this nation.
Whilst Mansell made it clear that the choice was ours to make as to our place inside or outside of the Australian Nation, this choice is also one which non-Aboriginal Australians must make. The Commonwealth must decide whether it wants to effect a reconciliation with indigenous people, and if so, then the erosion of legal rights and the denial of self-determination and self-government, will be a sure means of driving indigenous people inexorably towards absolute alienation.
The first step towards reconciliation in the wake of Mabo must be for Commonwealth legislative protection of native title and the assumption of primacy for Aboriginal Affairs by the Commonwealth. As the country moves towards a rearrangement of its institutions and constitutional structure, the opportunity is there for a new partnership to be forged where a direct relationship between Aboriginal people and the Federal Government is established, unencumbered by State and local interference, and where the fullest self-determination is acknowledged as inhering in the country's original people.
If this is to happen then a new meaning to the concept of self-determination must be embraced by the nation. Brennan identifies a common problem when dealing with concepts such as self-determination, sovereignty and nationhood, for these terms have particular technical meanings in international law which may be different from their domestic use. To compound the difficulty, different jurisdictions such as Canada, the United States and New Zealand employ these terms in different ways when referring to indigenous rights. Treaties in North American law, recognition of 'first nations' in Canada and of 'domestic dependent nationhood' in the United States, do not imply that these concepts are the same as understood in international law. They are primarily domestic concepts.
The confusion over the concept of the 'Treaty' promised by former Prime Minister Bob Hawke in the Barunga Statement, and the subsequent retreat from that concept which implied an international rather than a purely domestic agreement, illustrates the confusion which surrounds the use of terms which have specific legal meanings. Self-determination for Aboriginal people in Australia is not the same as is understood in international law, however the term has been expressed to be the policy of the Commonwealth Government on Aboriginal Affairs since the 1970s. The problem with this policy is as Brennan notes "[t]he political term has no guaranteed legal content",15 and therefore self-determination has frequently been replaced with the lesser concept of self-management. Brennan provides a sound argument as to why a definite legal concept of self-determination for Aboriginal people within the Australian Nation should result from Mabo, when he states:
"If the common law is to recognise Aboriginal land law, there is a strengthened argument for recognition by statutory or other means of other aspects of traditional Aboriginal law. An indigenous community living within the nation state and enjoying recognition of its legal system by the legal system of the nation is a community entitled to more than self-management. It is entitled to self-determination within the life of the nation."16
If Brennan is striking an unacceptably conservative position for Aboriginal people, then the onus is on us to put forward alternative arguments. Despite the fears in the Aboriginal community for betrayal at the hands of the Commonwealth, the Prime Minister's characterisation of Mabo as an opportunity is undeniable. It is the bitter experience of unfulfilled promises and intransigence by Governments, including the Commonwealth Labor Government's abandonment of national land rights in the 1980s, that led Mansell to the conclusion in 1989 that "[t]he promises on land rights legislation have gone and it is my opinion that no more will we see land rights legislation in this country".17 That Mansell was correct in his analysis that the well-spring of sympathy and support for legislative justice had long since dried up, was borne out in the Queensland experience in 1991, where the Coss Labor Government betrayed Aboriginal people and their own policies on land rights.
However, contrary to Mansell's dismissal of Mabo as potentially providing the stimulus for progress,18 it seems that there is at least a chance that working within the concept of one nation could result in a settlement which redresses land rights to a far greater degree than at presently forseeable and which affords maximum rights to self-determination. There is always the danger of losing the opportunity by betrayal or by Aboriginal leaders losing their nerve and winding up sitting on their hands, rather than trying to secure the best results they can for their people whilst the opportunities are available. It will take a singularly unified Aboriginal leadership with a firm agenda, to have any chance of succeeding in post-Mabo negotiations with the Commonwealth. This unity could be achieved if those who urge the full-blown sovereignty agenda could be persuaded to take part in negotiations where the validity of Australian sovereignty is not negotiable, but where land rights, self-determination and self-government, are. These people could reserve their position on Aboriginal sovereignty pending the outcome of the process of negotiations with the Commonwealth.
The negotiating position of Aboriginal people post-Mabo would be elevated tremendously if Michael Mansell played a leading role in advocating the Aboriginal' position, on the understanding that the strategy was to forge a unique place where Aboriginal people have guaranteed rights within one nation. An impossible proposal? Not if one looks at what Mansell has previously said. Mansell said that there were two choices available tc Aboriginal people, one involving separate Aboriginal nationhood and the other involving Aboriginal rights within the Australian nation, and given his political assessment and his experience, he had decided that the former choice would yield more hope for Aboriginal people. But it is argued here that the circumstances have changed dramatically, and an opportunity has arisen. Consider Mansell's closing statements at the Treaty Seminar in 1989:
"We have to make a harsh decision; we have to decide if we are part of Australian society. If we are, then we need to get the lawyers and determine what powers the federal government will be prepared to enact and what we want them to enact. If we are not part of the Australian nation but a separate nation of people unto ourselves, then we have to get our act together."19
Mansell left us with a choice, and he was persuaded by one of them. Imagine the possibilities if Mansell reserved his position on that choice and led the forthcoming negotiations with the Commonwealth towards trying to locate a domestic settlement which might effect a real reconciliation.
1. Mansell,M.,Treaty Proposal' Aboriginal Law Bulletin, Volume 2, No.37, April 1989.
2. Two Hundred Years Later, Report by the Senate Standing Committee on Constitutional and Legal Affairs, ALPS, 1983.
3. [1992] HCA 23; (1992) 66 ALJR 408; (1992)175 CLR 1.
4. [1979] HCA 68; (1979) 53 ALJR 403
5. Brennan, F.,'Mabo and its implications for Aborigines and Islanders in Ratnapala, S., and Stephenson. M., (eds), Mabo: Ajudicial Revolution, University of Queensland Press, 1993, at pp.26-27.
6. Millinpum v Nabalco Pry Ltd (1971)17 FLR 141 at267
7. [1975] ICJR at 95-86
8. Brennan, F., Sharing the Country, Penguin, 1991.
9. Mansell, M., The Court gives an inch but takes another mile' Aboriginal Law Bulletin Vol.2, No57, August, 1992.
10. Jull,P., Political strategies for indigenous peoples: Levels of practical action, North Australia Research Unit, February 1993 (unpublished).
11. Reynolds, H., The Law of the Land, Penguin, 1987.
12 Brennan, F., Sharing the Country, op. cit., p.15.
13. Keating, Hon P.J., (MP) The Redfem Park Statement, Australian Launch of the International Year of Indigenous People, Redfern, 10 December 1992.
14. Reported in The Independent Monthly, April, 1993.
15. Brennan, F., 'Mabo and its implications for Aborigines and Islanders in Ratnapala,S., and Stephenson, M., (ads), op. cit., p.28.
16. Ilaid, p27.
17. Mansell, M.,Treaty Proposal' Aboriginal Law Bulletin, op cit.
18. Mansell, M., 'The Court gives an inch but takes another mile" Aboriginal Law Bulletin, op cit.
19. Ibid.
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