Aboriginal Law Bulletin
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by Henry Reynolds
Reviewed by Jonathan Fulcher[*]
It may perhaps be fruitful, before commencing an analysis of Henry Reynolds' latest book, Aboriginal Sovereignty: Three Nations, One Australia?, to briefly explore some of the attitudes of key British colonists to Indigenous sovereignty-related questions during the nineteenth century.
In 1844, the Select Committee of the House of Commons on the state of the Colony of New Zealand met to address the difficulties arising from administration in New Zealand (including the establishment of the origin of title to land). The Committee was chaired by the most senior colonial policy maker in the period 1846 to 1852, Viscount Howick (after 1845 the third Earl Grey, and Secretary of State for War and the Colonies from 1846 to 1852), and included Benjamin Hawes, later Parliamentary Under-Secretary for War and the Colonies. In their report, the Committee was quite clear that usual colonial policy practice had not been followed properly by the colonial officials in New Zealand:
'It appears to Your Committee that the difficulties now experienced in New Zealand are mainly to be attributed to the fact, that in the measures which have been taken for establishing a British Colony in these islands, those rules as to the mode in which colonization ought to be conducted, which have been drawn from reason and from experience, have not been sufficiently attended to.' (Report from the Select Committee on New Zealand, with the Minutes of Proceedings, Account and papers [of the] House of Commons 1844 (9), Vol XIII, p3, Irish University Press Series of British Parliamentary Papers, Colonies: New Zealand, 3. All subsequent references in this section are from this Report unless otherwise stated.)
The Committee then set out to make clear what established practice was for colonial administration. In this sense, while the Committee was confined in its deliberations to affairs in New Zealand, it was consciously stating what colonial practice was, and ought to be, in other places and scenarios.
The Committee considered the Treaty of Waitangi to be a wrong step - 'though a natural consequence of previous errors of policy' (p5)-as it was the Committee's belief that:
'It would have been much better if no formal treaty whatever had-been made, since if is clear that the natives were incapable of comprehending the real force and meaning of such a transaction; and it therefore amounted to little more than a legal fiction' (p5).
Ambiguity abounded in the Treaty, the Committee argued, but nowhere more so than in 'the stipulations it contains with respect to the right of property in land' (p5). The Committee then articulated its understanding of British colonial policy and practice over Indigenous rights to land. Perhaps surprisingly, given Reynolds' repeated assertions in Aboriginal Sovereignty about the policy intentions of the Colonial Office, it is a vision which cuts across Reynolds' view of British Colonial Office policy and intentions. The Committee argued strongly against the idea that the Aboriginal people of New Zealand had a proprietary interest in land. Maori had had ideas:
'firmly established in [their] minds ... notions which they had then but very recently been taught to entertain, of their having a proprietary title of very great value to land not actually occupied; ... it would not have been difficult to have made the natives understand that, while they were to be secured in the undisturbed enjoyment of the land they actually occupied, and whatever further quantity they may really want for their own use, all the unoccupied territory of the islands was to vest in the Crown by virtue of the sovereignty that had been assumed.
'... [I]t is one of the fundamental principles of colonial law and policy ... correctly laid down by Sir G Gipps, that "the uncivilized inhabitants of any country have but a qualified dominion over it or a right of occupancy only; and that until they establish amongst themselves a settled form of government, and subjugate the ground to their own uses by the cultivation of it, they cannot grant to individuals not of their own tribe any portion of it, for the simple reason that they have not themselves any individual property in it" '(p7).
Governor Hobson of New Zealand's instructions, the Committee asserted, should have:
'clearly [laid] down the rule that sovereignty being established, all unoccupied lands would forthwith vest in the Crown, and that, except in virtue of grants from the Crown no valid title to land could be established by Europeans. [Had this] mode of framing ... been so, this treaty would probably been attended with less injurious consequences than it actually has been since in that case there can be little doubt that it would have been at once disallowed by Her Majesty's Government; at least it is clear that the treaty could not have been understood ... by ... the then Secretary of State, Lord John Russell, after he had received and approved of the treaty adopted in the most formal and authentic manner the views of Sir George Gipps (p7).
The Committee understood that land unoccupied by the Maori was vested in the Crown immediately upon the acquisition of sovereignty. That is, to use the language of Brennan J in Mabo (No. 2) (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1), those lands not 'in actual occupation and use' by the Aborigines were held by the Crown radically and as beneficial owner. Purchase from the Maori did not have to occur on unoccupied lands before the Crown could alienate land. The Committee asserted: 'To have proceeded in this manner, and to have assumed at once all unoccopied lands to belong to the Crown as a right inherent in the sovereignty, would have been attended with no sort of injustice to the natives and would have been conducive to their interests' (p7).
The argument of the Committee was very dear. It was a Committee chaired by the future Earl Grey. It at least suggests that the Colonial Office policy intentions in relation to Indigenous rights to land were somewhat more complicated than Reynolds continues to assert.
In his article 'Pastoral leases in their historical context' (Vol 3, 81 Aboriginal Law Bulletin 10), Reynolds asserts that the British Colonial Office concern for native title in Australia extended beyond the granting of responsible Government to the Australian Colonies, despite the somewhat presumptuous (according to Reynolds) declarations of recent Federal Court rulings by Drummond and French JJ. Reynolds argues that there is 'absolutely no evidence' that it was 'ever the intention of the Imperial Government' to 'abandon' the Aborigines of Australia to their fate at the hands of the settlers. There is, however, some evidence in relation to this matter.
Frederic Rogers, Commissioner of Colonial Land and Emigration at the time of the granting of responsible government to New South Wales in 1855, set out those subjects on which it would be competent for the Imperial government to have a say after the granting to the Colonies of 'responsible' powers. They were the allegiance of the Colonists, the naturalization of aliens, treaties of Colonies with foreign powers, intercourse with officers of foreign powers, the employment and discipline of sea or land forces, high treason, and divorce (in Victoria only). Rogers was quite clear that an 'acquiescence ... in these enactments would appear to be a total abandonment by the Home Government of any right to interfere directly or indirectly with any Colonial Legislation whatever except with the narrow circle of subjects above enumerated'. Rogers believed that the Home Government had to consider whether it wished to retain the 'power of disallowing any Act which is palpably immoral, especially in relation to the unrepresented Aborigines or immigrants of colour'.
By the New South Wales Constitution Act 1855 (Imp) (18 & 19 Vic c54) and the Sale of Waste Lands Act 1855 (Imp) (18 & 19 Vic c56), the Imperial Parliament had transferred to the New South Wales legislature responsibility for all matters relating to land, and so had effectively transferred to the colonial authorities any power it might have had to protect Aboriginal interests. The subsequent history of colonial and State Aboriginal protection legislation, while anything but illustrious, bears this out, being as it was a matter for the colonies and not the Imperial Parliament. By the two 1855 Acts, the Aborigines were effectively abandoned to indifferent or hostile colonial legislatures, due largely to the change of ministry from Grey to Pakington and Newcastle as Secretaries of State for War and the Colonies (see Herman Merivale, Lectures, Vol 2, London, 1841 [1865], p521). Fatally for Australian Aborigines, their rights and interests in land were no longer protected by policy initiatives from the Colonial Office.
Herman Merivale, Under Secretary of State for the Colonies for eleven years from 1848, examined the move to responsible government and its effects on Aboriginal policy. He felt continued management by the mother country of Aboriginal affairs was 'impractical' after responsible government had been granted. The real problem for Merivale was the process of constitutional government itself:
'[I]t cannot be doubted that a consistent and regulated system of management of the natives by the home executive would be better, as regards justice towards the natives, than the arbitrary will of the settlers. Unfortunately, no such system has ever been established by us, or seriously attempted. The truth is, that the establishment definitively and on a solid basis of either system, that of home control, or that of abandonment to the settlers ... is difficult to secure under constitutional government. No colonial minister can venture to oppose, with deliberate steadiness, the supporters of any prevalent and popular doctrine' (Merivale, Lectures, pp518-520).
The consequence of the 'opposing political tendencies' relating to Aboriginal interests was, Merivale argued, 'a vacillation of purpose greatly to be regretted' (Merivale, Lectures, pp518-520).
It appears from this brief recourse to other evidence not previously brought to bear in the debate over the recognition of native title in Australia that it may not be possible to find some historical foundation for a moral position from which we may move forward to address customary law recognition and sovereignty. We must be driven by another logic. It is a logic based on an honest and frank appraisal of contemporary Indigenous-settler relations. This appraisal and the accompanying debate cannot take place in a climate of intolerance. Impatience with other views is detectable at different times in all contributors to the national native title debate. Intolerance is clear in those opposed to native title, to the right to negotiate provisions of the Native Title Act 1993 (Cth), and to the level of funding alleged to be allotted to Aboriginal people across Australia. Conversely, a certain impatience emanates from prominent Aboriginal leaders and their supporters over the (at times) obvious incapacity of non-Indigenous Australia to acknowledge the moral rectitude of their cause, and recognise an inherent right of Aboriginal people to govern their own lives.
This debate and its accompanying intolerances are rooted in Australia's past. Reynolds is right enough about that. But recourse to the study of the past will only help us to understand the dimensions of the issues, to identify the discursive jigsaw which helps to structure the current arguments, and to map the topography of race relations in this country. History will not help us to adjudicate as to the better argument or the best way forward. No study of the past will provide lessons for the present or the future. Nor will it enable the righting of so many wrongs. How is it possible even to address that which can never be adequately redressed?
This assessment of the role of historical study as a part of the national debate over Indigenous issues includes the study of other 'pasts', for instance in Canada or the USA. Any options which these jurisdictions offer as means for addressing the issues which face us in Australia deserve close scrutiny, and Aboriginal Sovereignty is helpful in this regard. But Australia has only just embarked on this debate. Analogies with America like those offered by Reynolds are ultimately unhelpful. Such an analogy is both ahistorical and ignores the contemporary political and legal terrain which is the result of Australia's unique development. An informed debate requires the widest possible parameters. The full range of options for future ways of proceeding needs to be canvassed.
Reynolds gives us little clue in Aboriginal Sovereignty as to the range of matters for debate. Driven by his overriding concern with the 'fundamental moral problem which arose from the European settlement of Australia' (p ix), and the perpetuation of 'historical injustice' (p11), Reynolds argument does not help us, in social policy terms, to understand the full gamut and nature of contemporary Indigenous-settler relations in Australia. These relations are fragile, true, but the recognition of native title by the Courts and the Commonwealth Parliament has fundamentally reoriented those relations. As of right, Aboriginal people have been able to take their place at the negotiating table on a range of matters vital to Indigenous cultural regeneration and development. Political, economic and social conflict has resulted, and it ought not to be underestimated. It can be addressed in a variety of ways, and we need to be at our most flexible as a society in doing that. We need a more mature debate, one that is conducted by all sides with a recognition of past injustices, with tolerance on all sides, and with parties to the debate remaining flexible and provisional about their positions.
But before we can precipitate a move in any one direction, we must understand (better than can be gleaned from Aboriginal Sovereignty) what the range of options is which would be considered by Indigenous people. As Dr HC Coombs has indicated, the issues to be addressed 'should emerge slowly from local meetings all over the country' (p147). Aboriginal people often complain with a great deal of justification that they are one of the most studied peoples on earth. There is a danger that they will become the most solicited, the most put upon, as well. Many Aboriginal people, like other Australians, have a limited amount of time for formal politics, particularly the extensive meetings which might be required to obtain some consensus view on autonomy and self-government. The usual range of opinion on such matters will subsist as in any diverse community, from those who 'don't care much', to the committed secessionists. In the end it is a matter for Aboriginal people to decide.
In the mean time, the non-Indigenous part of the Australian community ought to vigorously debate its response to the various scenarios which are possible, without, as far as possible prejudging the views of the Indigenous community. By basing his book on only one particular reading of the past and its effect on one understanding of settler law, Reynolds limits the parameters of the debate unnecessarily. While never losing sight of the fundamental moral problems stressed by Reynolds, we need to move outwards to address the decision-making role and responsibilities of Aboriginal people on the contemporary political, economic and social terrain.
The recent debate about the Hasluck model of dealing with Indigenous affairs versus the Coombs model - or, at risk of caricaturing the debate, the assimilationist versus the self-determination model - has to go beyond these positions of thesis and antithesis to a new synthesis. Many Aboriginal people are reconciled in certain key ways to settler society, without compromising their cultural beliefs and practices in too fatal a fashion. The Keating Government's reforms have attempted to graft self-determination onto Aboriginal communities in an undifferentiated fashion, without sufficient flexibility where there was already the healing evident in an adaptable and vibrant contemporary Australian Aboriginal culture. The new synthesis might not so much steer a middle course between assimilation and self-determination, but understand these as two poles on a continuum of policy which it might be possible to apply as the circumstances dictate in different places, as the Aboriginal communities identify their different needs and aspirations. Thus new synthesis will be a continuum of different possibilities for different communities as they assess the issues, decide what is important for them, and what path it is they wish to follow. Some Aboriginal communities may decide that there is as much justice for them in the provision of jobs, health and education as in a declaration of independence from Commonwealth and State control.
In the final analysis, Aboriginal Sovereignty is unfortunately a not particularly good book about issues of fundamental importance to the future of Australian society. Reynolds asks the logical question after Mabo (No. 2): what about the recognition of customary law and sovereignty now that native title is recognised? But like the history on which the book is based, there is an insufficient sense of a wide-ranging enquiry and contest in the book to provide the reader with an adequate understanding of the key issues in the social policy debate we have to have. From the nearly two pages of rhetorical questions in the Introduction, through repetition of quotations from key sources, to a final substantive chapter which meanders through the last fifty or so years of international law on Indigenous issues in a fairly superficial manner, Aboriginal Sovereignty fails to capture the reader's imagination in the way that The Law of the Land does, and the issue raised by the book ought perhaps to do.
There are several reasons for making this judgment. First, The Law of the Land contained an interesting argument, which only on subsequent dose scrutiny began to unravel. Second, there is simply not enough substance to Aboriginal Sovereignty, partly because Reynolds appears unsure what the book is: neither a fully-realised history, nor social policy, nor legal treatise. For instance, Chapter 7, 'Self-government, Autonomy and Treaties', is strangely non-committal in conclusion. Reynolds mentions only in passing the fundamental change in the distribution of resources represented by the establishment of ATSIC. Third, Reynolds also makes little mention of the fact that Aboriginal people all over Australia are sitting down with each other and with other members of the wider community to work in partnership and do business, over developments, over the management of pastoral properties, about the protection of their cultural heritage, about community development, and over native title claims.
We need people like Professor Reynolds to drive the debate, to ensure that we do not become complacent. But we need more than continual pricks to our conscience: we need to be fully educated about the contemporary terrain in Indigenous affairs, so that we can carry on a mature and fruitful debate about this most important area of contemporary national life. We need to listen very carefully to what various Aboriginal communities say about the directions in which they wish to go, and be ready to work with them, without being prescriptive or inflexible in policy development or service delivery. It is now time to widen the parameters of debate and achieve a new synthesis. Reynolds offers only one alternative, yet to respond to Aboriginal community needs and aspirations we need a range of options. Reconciliation demands that we go beyond Hasluck and Coombs, and have a new synthesis which responds to the needs of the diverse range of Aboriginal communities. The weight of history and the rule of law have worked out differently in different places. There is no one solution when dealing with diversity.
[*] The views expressed in this article are those of the author solely and are not necessarily those of the Queensland Government.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1996/57.html