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Ban, Paul --- "Would a Formal Treaty Help Torres Strait Islanders Achieve Legal Recognition of their Customary Adoption Practice?" [2006] IndigLawB 33; (2006) 6(19) Indigenous Law Bulletin 17


Would a Formal Treaty Help Torres Strait Islanders Achieve Legal Recognition of their Customary Adoption Practice?

by Paul Ban

Introduction

This article discusses whether the formal recognition of Australia’s history and the negotiation of a treaty or agreement between Indigenous and non-Indigenous Australians are central to reconciliation and the achievement of Indigenous self-determination and equality. It uses examples from New Zealand and Canada as reference points when discussing treaty agreements in the Australian context. The article will focus on the practical example of how a treaty or agreement might help Torres Strait Islanders achieve legal recognition of their customary adoption practice. I have worked with Torres Strait Islanders for over fifteen years to try and help them gain legal recognition of their widespread family custom of sharing the care of children within the extended family.[1]

Treatment of Indigenous Australians during the Early Period of Colonisation

In a discourse on sovereignty, self-determination and treaties, McGlade[2] states that Australia is unique to other countries settled by Britain as its Indigenous people were not recognised as being capable of engagement with treaties. Despite Captain Cook being instructed by Britain to negotiate with the original inhabitants to take possession of land with their consent, this did not occur due to a belief that Aboriginal Australians did not want anything from the settlers in exchange for land and resources. Langton and Palmer[3] also comment on the failure of the colonial government in Australia to recognise Aboriginal Australians as being worthy of treaty-like arrangements. They state that Aboriginal leaders were considered not capable of legally making such agreements and simply ignored.

The contact experience Torres Strait Islanders have had with Europeans has been significantly different to that of Aboriginal Australians. As they live on a series of small islands in the Torres Strait, which is situated between the tip of Australia and Papua New Guinea, their remoteness allowed them to remain on their homelands at the same time that Aboriginal Australians were being dispossessed of their traditional lands. Nakata[4] identifies the three spheres of European interest that have affected Torres Strait Islanders as being:

1. the marine industry;
2. missionaries and the church; and
3. the Queensland Government.

Beckett[5] identifies these same three influences by naming them ‘pearlers, pastors and protectors’. In the mid 1800s Islanders had frequent interaction with non-Islander fisherman who wanted to exploit the marine resources of the area rather than dispossess Islanders of the land. In 1871 the London Missionary Society began to establish missions in the Strait and in 1872 and 1879 the Queensland Government annexed all of the Islands in the Strait. Although the Government wanted to gain control of the Torres Strait to regulate the marine industry, its presence also led to the regulation of the lives of the Islanders.

Nakata[6] points out that the intersection of these three groups gave Islanders limited participation in the running of their day-to-day lives despite the government allowing them to manage their own affairs through having elected councils. However Torres Strait Islanders were able to combine aspects of their lives so that elected councillors were recognised traditional leaders, and church leaders were also community spiritual leaders. Nakata believes that as the three areas worked to tighten the control over Islanders, there was little room for them to express their own identity. The government officials and church were both interested in ‘civilising’ Islanders while the desire of the marine industry for cheap Islander labour fitted with the Protestant work ethic. However, both church and government saw it as their respective duties to protect Islanders from the excesses and abuse of Europeans involved in the fishing industry. Torres Strait Islanders came under greater control of the Queensland Government in 1904 when they were deemed ‘Aborigines’ and in need of protection.[7] Although some Islanders were considered capable of managing their own affairs, as others had difficulty coping with European interaction the Government declared the Torres Strait Islands as ‘reserves.’

Current Issues in Canada and New Zealand regarding the Success of Treaty History in Ensuring Self-Determination

As both Canada and New Zealand recognised the sovereignty of their original inhabitants through treaties, I intend to consider the current issues facing self-determination for both countries’ Indigenous people and later compare their situations with that of Australia’s Indigenous population, where sovereignty was not and is still not recognised. Morse[8] states that the modern treaty era in Canada began in 1975 following a landmark Court decision in Calder v Attorney-General of British Columbia [1973] SCR 313. The Court found that the Nisga’a nation of north-west British Columbia had never surrendered title to their land by treaty or conquest. This led to the Federal Government accepting that Aboriginal title was likely to still exist in large parts of Canada where no treaties had been negotiated in the past. Since that time, agreements have been negotiated between the Federal Government, Provincial governments and Aboriginal title-holders, with many settlements not only confirming exclusive land rights but also self-government jurisdiction.

When giving the Fifth Vincent Lingiari Memorial Lecture, Malcolm Fraser[9] used Canada as an example of a country that has not been alarmed by their Indigenous people using terms such as ‘self-determination’, ‘self-government’ and ‘treaty’. He believes Canadians do not view their society as being fragmented after having come to terms with the aspirations and needs of their First Nations people.

Morse states that since the rights of First Nations people were enshrined in the Constitution Act 1982,[10] the Supreme Court of Canada found that the Crown has a responsibility to consider the best interests of First Nations people through its fiduciary relationship with them.[11] As ongoing treaty negotiations have been heavily affected by Court decisions, the Crown has been challenged by First Nations people from time to time who believe their interests and well-being have not been properly taken into account. Morse believes that although all levels of non-Aboriginal government in Canada tend to make decisions without considering the implications for First Nations people, treaty- and agreement-making still forms the cornerstone of Indigenous-settler relations in Canada.[12]

De Costa takes a commonsense approach to the rapid increase in treaty negotiations during the past twenty years by acknowledging the value of people simply talking to each other. He believes change takes place through an incremental approach and considers Canadian society to be engaged in a permanent culture of negotiation.[13]

When considering the issues in New Zealand regarding the effect of the Treaty of Waitangi, the Australian Council for Aboriginal Reconciliation acknowledged the inherent problem of having two different versions of the Treaty, one in Maori and one in English. Despite the ongoing conflict over interpretation and intention, the Council stated that the concept of Maori traditional law is tied to the Treaty and the Treaty has an influence on all aspects of Maori affairs. The Council noted that in recent years negotiations have replaced litigation as a major way of settling Maori grievances.[14] Havemann stated that although Maori rights were not in the New Zealand constitution, they were enshrined in the Treaty of Waitangi in 1840 and further recognised in the Waitangi Act 1975 (NZ).[15]

David Williams considers that the Maori Land March and the passing of the Treaty of Waitangi Act[16] in 1975 have developed out of a Maori cultural renaissance that challenged white hegemony over social and legal institutions.[17] In Honour Among Nations? Treaties and Agreements with Indigenous People,[18] Judge Joe Williams of the Waitangi Tribunal states that the Tribunal was also created in 1975, in response to the growing dissent from Maori, as New Zealand is a small country with a large Indigenous minority.[19] The Tribunal was given the power of investigating Indigenous grievances and reporting them to government. Following reformist measures by the fourth New Zealand Labor Government, politicians and bureaucrats were instructed to take into account implications resulting from the Treaty of Waitangi when going about their business.

Williams believes that treaty issues have been ‘vertically integrated’ into systems of government via the requirement on the New Zealand bureaucracy to have in place Treaty responsiveness programs or policies.[20] He states that while Treaty and Maori protection mechanisms are in place across a range of legislative areas, the bureaucratic process must address these issues in all new legislative proposals. The intention of Government is for attempts to be made to be responsive to the rights and interests of Maori people under the Treaty. Williams states that although the Treaty ‘shadows’ all pieces of legislation and is relevant to statutory interpretation, its legal status is ambiguous.[21] However, New Zealand is not in favour of entrenching the Treaty in their constitution, as in Canada, and there is a reluctance to give determining power to the judiciary. They are also reluctant to incorporate the Treaty in the legislative process through a Bill of Rights. Consequently the issues raised by the present system have to be examined and negotiated on a case-by-case and program-by-program basis, mainly by bureaucrats.

Current Issues for Torres Strait Islanders Regarding the Value of a Treaty to Achieve Self-Determination

Reynolds believes that most Aboriginal and Islander spokespeople do not consider Indigenous people as simply another ethnic group in multicultural Australia and want their unique status to be acknowledged by the Australian Government.[22] A progressive discussion paper, ‘Towards Self Government’,[23] on the relationship between Aboriginal and Islander people and the Queensland Government, stated that it favoured Indigenous Australians having ‘inherent jurisdiction’, similar to the First Nations people of Canada.[24] Legislation was proposed to recognise the pre-existing rights of Aboriginal and Torres Strait Islander people to self-government, along with their choice to progressively assume responsibility for a range of government powers. The paper recommended Aboriginal and Islander communities take on the power of existing local authorities and many of the State and Commonwealth government powers.

Reynolds acknowledged that Indigenous communities have begun to enter into regional agreements to negotiate with government and industry about issues concerning them. However he believes that mainly large and sophisticated organisations, in clearly defined localities such as the Central Land Council, Northern Land Council and the Torres Strait, are able to enter into such agreements.[25] Reynolds considers that advances in Indigenous authority and influence will come from the local level and that sovereignty will return to Indigenous society more quickly from the bottom up than from the top down. He believes that specific regions such as the Torres Strait will achieve regional autonomy similar to the Cook Islanders in New Zealand long before legislation, litigation or Constitutional change would assist them.[26]

Nakata states that Torres Strait Islanders in the Torres Strait are further along the road to self-government than any other Indigenous group, and believes they have achieved their current position without creating any controversy or backlash within white Australia.[27] Their cause has been helped by their cultural distinctiveness, geographic isolation and minority numbers. In addition, they have always remained on their homeland islands despite the majority of their total population choosing to live on mainland Australia, primarily Queensland.

Torres Strait Islanders have maintained a long and slow process of negotiating by increment toward their goal of self-determination. In August 1997, ninety-three years after Islanders came under the Aborigines Protection Act 1904 (Qld), a Queensland Government House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs outlined the benefits of the region gaining regional autonomy. They included:

1. The returning of a right to the original inhabitants;
2. The development of a link between local customs (Ailan Kastom) and formal decision-making;
3. the need for Islanders to make decisions about matters that affect their lives through finding their own solutions to their problems; and
4. more effective use of resources available from the different levels of government funding through better program coordination.[28]

Nakata noted that although Islanders are committed to the path of autonomy, they have proceeded slowly in trying to reach agreement about the type of governance structure they want for the Torres Strait. He acknowledged that the slow pace is due to their extensive community consultation undertaken in order to build a model of self-governance from the ground up. In addition they have had to deal with the additional problem of how to include the aspirations of mainland Torres Strait Islanders who are unsure what benefits regional autonomy would bring to them. Nakata believes mainland Torres Strait Islanders should negotiate their own issues separate to those in the Torres Strait, as they have the potential to undermine the strong position of Islanders in the homelands.[29]

Nakata believes the concept of a treaty needs to be articulated clearly to help Indigenous people consider the practical improvements it can make to their lives on communities by connecting practical agendas with the stronger symbolic ones. He agrees with Reynolds that if a national framework approach is taken regarding reaching agreements between government and Indigenous people, it needs to work from the ground up and respond to regional and local issues.[30]

Relevance of a Treaty to help Torres Strait Islanders Achieve Legal Recognition of their Customary Adoption Practice

I have argued that despite the different histories of settler–Indigenous contact and resultant legal status given to the Indigenous people, the outcome regarding contemporary issues of self-determination and self-governance for those in Canada, New Zealand and Australia are remarkably similar. Although Canada and New Zealand both have symbolic measures to ensure recognition of the traditions, customs and connection to land of Indigenous people, they also need the more practical act of incremental negotiations and agreements to ensure outcomes. Despite Australia having no formal symbolic reference point for government–Indigenous negotiations, they have continued to occur in a similar manner to New Zealand and Canada.

However I believe a reference point that is both legal and symbolic is necessary to force government authorities to have to negotiate matters relevant to Indigenous people. My experience is that governments will usually only enter into protracted negotiations if there is something to be gained or lost if they do not do so. The complicating factor with the recognition of Torres Strait Islanders’ customary adoption practice is that it is not confined to the Torres Strait where it could be dealt with under a regional agreement. Although the majority of mainland Islanders live in Queensland, they also live in all states and territories of Australia and are subject to the various state laws that impact on recognition of their customary adoption practice. While it is understandable for the Commonwealth and state governments to support regional autonomy in the Torres Strait, (as they would consider that the distribution of government resources could be undertaken more efficiently by those who have a vested interest in the outcome), mainland Torres Strait Islanders are excluded from these negotiations.

In 1999 the Queensland Government appeared set to consider draft legislation before Cabinet to formally give legal recognition to the custom in a special piece of adoption legislation. However at the eleventh hour Cabinet decided there may be a backlash from the wider community for passing such legislation for a specific group and queried whether the practice was in the best interests of the children concerned.

The matter was to be referred to the Queensland Law Reform Commission for consideration along with the recognition of other Indigenous customary law practices in Queensland in 1999. In October 2005, members of the Torres Strait Islander Working Party on customary adoption were finally informed that the matter did not go to the Queensland Law Reform Commission due to financial constraints and that the Queensland Department of Aboriginal and Torres Strait Islander Policy Development was unsure how to proceed as the legal recognition of customary adoption practices was not a Government priority.

I believe that if Torres Strait Islanders lived in Canada the government would be required to consider the implications for the survival of the practice under Section 35 of the Constitution Act 1982.[31] As the government has a fiduciary relationship with Indigenous people, the Islanders could pursue the matter through the Courts if the government ignored their request for legal recognition. If Torres Strait Islanders lived in New Zealand they could go to the Waitangi Tribunal to complain that the government was not acting within the spirit of the Treaty. They could argue that their long-standing traditional custom was in need of legal recognition due to problems they were having exercising the custom within the white legal system. However, as Torres Strait Islanders are Australians they have no other recourse than to continually lobby to have the custom legally recognised.

Paul Ban is a Fellow of the Department of Social Work, University of Melbourne.


[1] Paul Ban, ‘The Quest for Legal Recognition of Torres Strait Islander Customary Adoption Practice’ [1993] AboriginalLawB 2; (1993) 2(60) Aboriginal Law Bulletin 4; Paul Ban, ‘Customary “Adoption” in the Torres Strait Islands: Towards Legal Recognition’ [1994] AboriginalLawB 5; (1994) 3(66) Aboriginal Law Bulletin 8; Paul Ban, ‘Developments in the Legal Recognition of Torres Strait Islander Customary Adoption’ (1996) 3(78) Aboriginal Law Bulletin 14.

[2] Hannah McGlade, ‘Native Title, “Tides of History” and Our Continuing Claims for Justice – Sovereignty, Self-Determination and Treaty’ in Australian Institute of Aboriginal and Torres Strait Islander Studies (ed), Treaty: Let’s Get it Right! (2003) 118, 123.

[3] Marcia Langton and Lisa Palmer, ‘Treaties, Agreement Making and the Recognition of Indigenous Customary Polities’ in Marcia Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004) 34, 41.

[4] Martin Nakata, ‘Commonsense, Colonialism and Government’ in Richard Davis (ed), Woven Histories, Dancing Lives: Torres Strait Islander Identity, Culture and History (2003) 155.

[5] Jeremy Beckett, Torres Strait Islanders: Custom and Colonialism (1987) 24.

[6] Nakata, above n 4, 157.

[7] Aborigines Protection Act 1904 (Qld).

[8] Bradford W Morse, ‘Indigenous–Settler Treaty Making in Canada’ in Marcia Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004) 50, 61.

[9] Malcolm Fraser, ‘The Past We Need to Understand’ (Speech delivered at the Fifth Vincent Lingiari Memorial Lecture, Darwin, 24 August 2000) <http://www.abc.net.au/specials/lingiari/default.htm> at 6 June 2006.

[10] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11.

[11] Morse, above n 8, 61.

[12] Ibid 63.

[13] Ravi de Costa, ‘Treaties in British Columbia: Comprehensive Agreement Making in a Democratic Context’ in Marcia Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004) 133, 146.

[14] Council for Aboriginal Reconciliation, Walking Together: The First Steps – Report of the Council for Aboriginal Reconciliation to Federal Parliament 1991-1994 (1994), 76.

[15] ‘Comparing Indigenous People’s Rights in Australia, Canada and New Zealand: Some Signposts’ in Paul Havemann (ed), Indigenous Peoples’ Rights in Australia, Canada and New Zealand (1999), 9.

[16] Treaty of Waitangi Act 1975 (NZ).

[17] David V Williams, ‘Te Tiriti o Waitangi – Unique Relationship Between Crown and Tangata Whenua?’ in Sir Hugh Kawharu (ed), Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (1989) 64, 84.

[18] Marcia Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004).

[19] Joe Williams, ‘Treaty Making in New Zealand/Te Hanga Tiriti ki Aotearoa’ in Marcia Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (2004) 163, 164.

[20] Ibid 168.

[21] Ibid 169.

[22] Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State and Nation (1996) 136, 136.

[23] Aboriginal and Islander Review Committee, Queensland Government, Towards Self-Government (1991).

[24] Aboriginal and Islander Review Committee, Queensland Government, Towards Self-Government (1991) cited in Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State and Nation (1996) 136, 139.

[25] Ibid 145.

[26] Ibid 146.

[27] Martin Nakata, ‘Treaty and Self-Determination Agendas of Torres Strait Islanders: A Common Struggle’ in Australian Institute of Aboriginal and Torres Strait Islander Studies (ed), Treaty: Let’s Get it Right! (2003) 166, 167.

[28] Ibid 168.

[29] Ibid 176-177.

[30] Ibid 183.

[31] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11.


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