Indigenous Law Bulletin
by Robynne Quiggin
On 10 September 2002 a seminar entitled ‘A National Treaty with Indigenous Australians – the International Law Perspective’ was hosted by the Aboriginal and Torres Strait Islander Social Justice Commissioner Dr Bill Jonas, and the Australian Branch of the International Law Association. Papers were delivered by Margaret Donaldson, Director of the Native Title Unit on behalf of Dr Jonas, and Professor Ivan Shearer, Challis Professor of International Law, and Australian delegate to the United Nations Human Rights Committee. This article is a brief overview of the papers written by Dr Jonas and Professor Shearer.
Dr Jonas’ paper discussed the clear failure of native title to deliver the new relationship between Indigenous and non-Indigenous Australians, promised by the rejection of terra nullius in Mabo v Queensland (No 2) (‘Mabo’). This failure is partly based on the construction of native title in Mabo. Terra nullius was overturned ‘because it failed to recognise the social and political constitution of Indigenous people. Yet the recognition of native title was premised on the supreme power of the state to the exclusion of any other sovereign people’. There are two effects of this construction. First, the ‘characteristics of Indigenous sovereignty, the political, social and economic systems that unite and distinguish Indigenous people, have been erased from native title. Second...the state’s power to extinguish native title is supreme.’ Native title, therefore, ‘is premised on this relationship of inequality, it does not transcend it’.
Dr Jonas stated that ‘[t]he failure to conceive of native title in terms of sovereign rights recognised at international law was postulated in Mabo as the result of an inherent limitation of the common law itself’. This common law construction consigns Indigenous people’s relationship with land to a ‘domestic property right, rather than political, cultural or sovereign rights’. This is problematic for both the recognition of Indigenous people as sovereign entities with an ‘international personality’ capable of treaty making at international law, and for the characterisation of native title itself.
Given the impasse created by the construction of native title, Commissioner Jonas posited a different set of assumptions about sovereignty and power in order to further the dialogue about treaty making. He noted that so far Aboriginal sovereignty has been constructed as something analogous to state sovereignty, and as such has been seen as something which must be pitted against the existing system. This promotes an inaccurate concept of power as ‘static and monolithic; only able to reside in the state – the government’. Historically, the evolving nature of Australian sovereignty is demonstrated by the federation of the colonies in 1900, the creation of the Australian Capital Territory and the Northern Territory, and the passage of the Australia Act in 1986, when ‘for the first time Australia became autonomous from the British legal system’. Further evidence is provided at an international level, with the increasing activity of NGOs, now a significant international force.
The concept that power resides only in the state is also challenged by the development of rights discourse, which sees rights as inherent, rather than at the discretion of the state. ‘For Indigenous people, the international system has begun to acknowledge their collective rights to self-determination and to protection of culture – that is, that rights reside in a peoples’ systems of organisation, governance and ultimately, sovereignty.’ However, this recognition is heavily resisted by many states based on the argument that conceding these rights would endanger state’s territorial integrity and sovereignty. This resistance is based on an assumption that state sovereignty and territorial integrity are privileged over the rights of Indigenous peoples to be self-determining.
Dr Jonas posits an alternative construction, whereby international law does not prioritise a state’s organisational form over the rights of its constituent members. In fact he argued that ‘the sanctity of the state’s integrity is dependent on it remaining representative and being truly of the people’ and that ‘increasingly the credibility and legitimacy of a State’s foundations, its sovereignty, depends on its inclusivity and the way it treats Indigenous peoples’.
Professor Shearer provided an international law background for his preferred treaty model between Indigenous and non-Indigenous Australians, based on ‘the model of a framework agreement, the achievement of reconciliation through an ongoing process, gradual and measured progress in particular fields, confidence building, and good faith’.
Professor Shearer provided the international law definition of a treaty as ‘an international agreement concluded between states in written form and governed by international law’. Professor Shearer described state reluctance to recognise non-state parties in international agreements. The small numbers of such non-state parties granted international personality is evidence of this reluctance, which is based on the perceived danger to territorial integrity. Professor Shearer explained that past treaties between colonial powers and Indigenous people are no exception. ‘[O]nce the territory had passed to the acquiring state, continuing relations between the conqueror and the subject peoples came to be regarded as subject only to domestic law.’
Professor Shearer stated that he could not envisage an Australian government willing to make an agreement which embodied the concepts implied in a ‘treaty’ including:
(a) an intention to create legal relations between the parties governed by international law; and
(b) the parties each possessing a separate international personality.
Professor Shearer turned to possible alternative constructions of an agreement between Indigenous Australians and the Australian government. He envisaged an agreement with ‘political, preferably constitutional, status in the Australian legal order’, perhaps called a Makaratta. The term was preferred because it is ‘free from associations that give rise to the twin bogeys of sovereignty and international law’.
Professor Shearer suggested the form be a ‘short and simple instrument that creates a framework’ rather than a ‘lengthy and comprehensive text that would settle all questions. In my opinion that road will lead to inevitable frustration.’ The framework would include:
(a) a statement of reconciliation and of the desire to make a new start in black-white relations;
(b) a statement of agreed general principles;
(c) an identification of the areas in which future negotiations will take place with a view to the conclusion, from time to time, of particular subsidiary instruments or mechanisms; and
(d) provision for the creation of a body to implement the treaty.
Professor Shearer argued that a useful international model is the ‘framework convention’. The model sets out the objectives and common resolve of the parties to work towards resolution. The parties commit to co-operate to achieve the objectives, but do not commit to precise and binding obligations. He argued that while the only legal obligation that may arise from such conventions is the obligation to demonstrate good faith, this is an important principle of both international law and national law in its own right.
Examples of these agreements are the Helsinki Final Act on Security and Co-operation in Europe 1975, and the Framework Convention on Climate Change 1992. The specific standards aspired to in the Framework Convention on Climate Change are found in subsequent protocols, such as the 1998 Kyoto Protocol. Professor Shearer stated that critics who see these instruments as ‘soft law’ underestimate the outstanding results produced by the Helsinki Final Act on Security and Co-operation in Europe. While outcomes from the Framework Convention on Climate Change are less successful, he argued that even the states which shy away from commitment to specific targets ‘dare not disengage themselves from the process. In the end an accommodation will be reached.’
For those wishing to follow discussions on a treaty, the two papers discussed in this article contain interesting perspectives. For a full appreciation of the ideas, the papers are available on the Australian Branch of the International Law Association’s website at www.ila.org.au and the Human Rights and Equal Opportunity’s website at www.humanrights.gov.au.
Robynne Quiggin is an Indigenous lawyer currently working as a consultant.
  HCA 23; (1992) 175 CLR 1.
 Vienna Convention on the Law of Treaties, art 2(1)(a).
 The author notes that the cession of territory and other matters asserted under these treaties are disputed by the relevant Indigenous peoples.
 Professor Shearer gives several examples including the decisions of the Privy Council in In re Southern Rhodesia  AC 211, and in Hoani Te Heu Heu Tukino v Aotea District Maori Land Board  AC 308. Even the Treaty of Waitangi in New Zealand is regarded as having status under national law only.