Aboriginal Law Bulletin
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by Justin Malbon
In an off the cuff speech to his advisers the night before the last election, the Prime Minister mused that Mabo offers a unique opportunity for the Australian community to "do something with Aboriginal reconciliation".[1]
The decision does offer that opportunity - but how is a resolution to be achieved? And more to the point, how do the indigenous people avoid being screwed in the process?
One response is to pursue further claims through the courts. Court action is a very useful mechanism for gaining legal recognition of rights and prompting the political process, as Mabo demonstrates. It is also useful for preventing any unilateral disregard of rights by the use, for example, of injunctions.
The courts, however, have their limitations. Apart from the demand of time and money, the courts cannot always be relied upon for a positive outcome, as shown by experience in the United States.[2] Another limitation is the range of remedies courts can provide. The payment of compensation, for example, may be an unsatisfactory outcome if a community desires the return of land. Also, in some cases compensation may benefit only a limited number of people or may not benefit future generations.
The alternative is a settlement achieved through the political process. This would involve a negotiated settlement or a settlement arrived at after examination by an independent tribunal. The settlement would in most cases be given legal force by statute.
In this article I will briefly discuss possible settlement processes that could be adopted and issues that could be negotiated.
There are at least three settlement processes that could be used. The first is the grand resolution between government and representatives of indigenous people. The second is essentially a contract based model in which a written agreement is reached between the government and an indigenous community. The third, is a tribunal based model.
Underlying any process should be the determination of the parties to achieve an outcome that empowers indigenous communities to determine their destiny and not one that simply suits the convenience of the non-indigenous community. As will be discussed later, a resolution that is fundamentally unjust would be susceptible to a successful legal challenge.
It is unlikely that much will be achieved by a grand resolution spelt out in a single document negotiated between the government and a group of representatives of indigenous people. A statement of the rationale and principles that are to guide a negotiation process would be useful, but would not, by definition, constitute a resolution of indigenous claims.
The urge for the grand resolution probably arises from two sources. The first is the desire of the non-indigenous community to neatly resolve the long and bloody colonisation of indigenous Australians without really having to confront the full extent and implications of what happened. This is the Pollyanna response. The second is the desire by those proposing large development projects, particularly mining, to minimise legal uncertainty for the projects. The response to Mabo by these groups is to seek legislation that will validate non-indigenous titles and give monetary compensation for indigenous groups that can prove an uncompensated extinguishment of title since the operation of the Commonwealth Racial Discrimination Act 1975.
The grand resolution could not accommodate the diverse demands of Aboriginal and Torres Strait Islander communities. Instead it risks a universal 'solution' that wishes away the rich complexity of indigenous societies by reducing them to a bland homogenised mass. It encourages banal assumptions about indigenous communities. It ignores their dynamism and the fact that the term 'community' is itself complex, dynamic and not readily definable. The outcome of a grand resolution would at best, for example, suit the Murray Island community while making little sense to the Aboriginal and Torres Strait Islander communities in Redfern.
The contract model involves agreements negotiated between the government (probably state and federal) and representatives of each indigenous community. This model is based on the Canadian approach of comprehensive land claims agreements. This in turn has its origins in the treaty process that was employed in the United States as well as Canada.
This model has the advantage of allowing a community to put forward its demands and seek to have them set out in an agreement. The problem with this approach is that, on Canadian experience, the process can descend to a lawyers' picnic. After a number of years of haggling, an enormous and complex document is created that is riddled with compliance provisions about matters such as hunting and fishing. This process can often leave no-one satisfied.
In other situations a broad well intentioned agreement is arrived at that leaves the parties disagreeing after the event as to what they had agreed on. An example of this outcome is the Torres Strait treaty. Although it is an international treaty between Australia and Papua New Guinea, and not a settlement between the government and indigenous people, it sets out broad terms purporting to protect the traditional fishing rights of Torres Strait Islanders and Papua New Guineans. In practice the treaty provides little or no such protection to Torres Strait Islanders. It has provided no assistance in relation to apparent build ups of dangerous chemicals in the Torres Strait from mining operations that are killing the fish.
Indigenous groups may also find the contract model unsatisfactory as it can presuppose the exchange of contingent rights for defined benefits. In Canada an indigenous community agrees to surrender any native rights it may have in exchange for benefits set out in the agreement. The risk is the courts will later find that the native title rights had been surrendered despite claims of the indigenous community that the government's side of the bargain has not fully or properly been met.
Despite the shortcomings of the contract model, at least Canadian comprehensive land claim agreements gain constitutional status through s35 of the Constitution. Such protection of an agreement does not exist, and is unlikely to exist, in Australia.
Another possibility, loosely based on the New Zealand approach (another analogy being the Northern Territory Aboriginal Land Commissioners), is to have a tribunal examine the claims put to it by an indigenous community and hear any objections to the claims. The advantage would be that, unlike the contact model, there is less need to haggle over important issues. The tribunal would, of course, also take account of other competing interests such as those of pastoralists and other actual or potential interest holders. After making its inquiry the tribunal would make a recommendation to the government.
Possible disadvantages are that there would be a great reliance on the capacity of the tribunal to act efficiently and creatively while taking full account of the community claims and competing interests. There would, of course, like the contract model, be no guarantee that the government would implement the recommendations of the tribunal. This problem lies at the heart of all options, unless there is at least some form of constitutional protection given to the arrangement.
Although negotiating settlements between indigenous communities and the non-indigenous community is likely to be time consuming, that does not deny its urgency. The negotiations should be motivated by the desire to achieve a just resolution and not simply one that is convenient for the non-indigenous community. Unsurprisingly, some members of the non-indigenous community have not responded positively to the Mabo decision. They have denounced the High Court and have sought 'validating' legislation to effectively restore the pre-Mabo status quo.
If governments respond in a way that sets out to deliver the minimum possible degree of justice to the indigenous people, it may well provoke indigenous people to seek further remedy from the courts. The fiduciary duty referred to by Toohey J. in his judgment in Mabo[3] offers scope for the courts to ensure that equitable principles of fair dealing apply between the government and the indigenous people. If a trust like duty is found to apply, as is the case in the United States, the time bar that usually inhibits an applicant from launching an action may well not apply. The Statute of Limitations generally does not apply as between trustee and beneficiary.[4]
Underlying any process should be the determination of the parties to achieve a just outcome that empowers the indigenous community to determine its own destiny. Issues that may be the subject of negotiation include:
(i) providing secure title to land to which the community has traditional or historical association; and
(ii) enabling a secure economic base for the community to flourish; and
(iii) enabling a degree of self determination that allows the community to deal with its issues and priorities in the way it considers appropriate.
There were significant advances in delivering justice to some indigenous groups before Mabo was decided. Successes have been achieved in the area of land rights and the achievement of a relative degree of economic self sufficiency by some communities. Less has been achieved with regard to enabling communities to determine their own destiny. Most communities suffer from the stranglehold that governments maintain in determining funding and other priorities within communities.
Land rights have to an extent been addressed by the Commonwealth and some state governments that have enacted land rights legislation. The legislation has allowed for the identification of those with a right to land based on traditional or historic affiliation with the land and grants inalienable freehold title to those with the right.
The Mabo decision highlights the need for traditional title to be confirmed in a consistent way throughout Australia. There is no coherent reason for one community in Northern Australia to be able to gain some redress because they are on the eastern side of the Northern Territory border and another community to be deprived of that redress because they are on the western side of that border. Any imagined coherence of that state of affairs quickly dissipates when put to the international community. The adherence to moral standards that Australia demands of the rest of the international community is becoming increasingly hypocritical when judged against the inconsistent grant of rights being provided to Australia's indigenous people.
There is a range of possible options that exist in relation to attaining economic self sufficiency. Existing mechanisms that could be extended and improved upon are the application of royalty equivalent payments from mining operations and the payment of a fixed percentage of land tax income to trust funds for indigenous communities. Other mechanisms are used by ATSIC with the aim of promoting economic self sufficiency.
Community self determination has not been provided for by Australian governments. This failure of government policy was criticised by the Royal Commission into Aboriginal Deaths in Custody. Proposals to rectify this have been made in a report by a committee of Aboriginal and Torres Strait Islander members appointed by the Queensland Government.[5] In their report to the Queensland Government the committee emphasised the need for legislation enabling communities to create their own governing structures. They proposed a flexible approach that allows a community to develop culturally appropriate governing structures. For example, a community may propose a constitution in which certain powers are distributed amongst a council of elders, outstation groups and women's groups. An elected council may maintain responsibility for administration matters while the council of elders and the outstation and women s groups maintain veto or other powers on certain issues.
A community could exercise a range of powers including powers in relation to education, housing, health, employment and training, the maintenance of peace, order and safety and the regulation of alcohol. A community may not wish to exercise all of these powers as it may consider it inappropriate. But the report does make a number of specific recommendations aimed at enabling a community to determine the role of government agencies in their community and not the other way around.
Mabo provides a unique opportunity to initiate a process for a lasting and just reconciliation between indigenous and non-indigenous Australians. A number of options exist in establishing an appropriate process for reconciliation. Obviously indigenous community groups need proper resources to effectively advance their claims. Perhaps the land council model is an appropriate mechanism for providing those resources.
Underlying the process should be a determination to empower indigenous communities to determine their own destiny. This will most likely be achieved if communities are uninhibited in the issues they can reasonably have accommodated by the settlement process.
* The views expressed in this article are those of the author and do not necessarily reflect those of the Queensland Government.
[1] The Independent Monthly, April 1993 at pp.13 and 14.
[2] See for example Tee-Hit-Ton v US [1955] USSC 24; (1955) 348 US 272.
[3] Mabo v Queensland (No. 2)(1992)175 CLR I at 199-205.
[4] See County of Oneida vOneida Indian Nation (1985) 470 US 266.
[5] Report of the Legislation Review Committees Inquiry into the Legislation Relating to the Management of Aboriginal and Torres Strait Islander Communities in Queensland, Queensland Department of Family Services and Aboriginal and Islander Affairs, November 1991.
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