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[2] Achieving justice for Indigenous peoples therefore requires fundamental change at every level. As Australia moves into its second century as an independent state, an examination of the vestiges of Australia’s colonial origins should move us toward rectifying the fundamental injustices that continue to undermine the foundations of Australian nationhood. Nation-building is an ongoing process. It requires constant reinforcement of values and identity. It is not sufficient to relegate the failure to respect Indigenous peoples as equals to the vagaries of history, because that history constantly informs Australia’s identity, values and governance.
[3] This paper looks back at those foundations but also at recent
public policy debates concerning Indigenous peoples’ rights.
We identify
the shortcomings of recent policies as stemming from the failure to approach
Indigenous issues within the context of
the structural relationship between
Indigenous peoples and the colonial state. We suggest that Indigenous policy can
no longer suffer
the absence of a process that has the capacity to tear at the
institutionalised racism and discrimination of the Australian state
and build
respect for Indigenous peoples as the first peoples of this land.
[5] The ‘settlement’ of Australia was an extreme application of the notions of European superiority that fuelled imperial expansion. The law of nations, the international law of the era, while positing the equality of nations as a central tenet, was also formulated to justify colonisation and limit recognition of Indigenous peoples.[4] In 1539, Vitoria acknowledged that the Indigenous peoples of the new world should be allowed to govern themselves ‘in both public and private matters’.[5] However, like the domestic doctrine, recognition was dependent upon a Eurocentric evaluation of the social and political development of Indigenous peoples and was dismissive of the governmental structures that were in place.[6]
[6] Treaties negotiated with Native American Nations and Canadian Aboriginal peoples expressed the notion that these Indigenous groups constituted separate and sovereign peoples who had their own laws and were capable, as nations and tribes, of forming and breaking their own alliances with others, including colonial powers, and who had national or tribal territories under their control. The treaty process acknowledged that there is or was a distinct relationship between the two groups that were defined in those agreements. These treaties had the international character of agreement making – nation to nation.
[7] Canada and the United States ‘de-internationalised’ these arrangements. The common law no longer regarded these treaties as having any of the characteristics of international legally binding instruments.[7] In a recent report to the United Nations Working Group on Indigenous Populations, Special Rapporteur Miguel Alfonso Martinez describes this jurisprudence as ‘the process of domesticating relations with Indigenous peoples’.[8] In short, respect for the equality of peoples was disregarded in the face of absolute power. While Indigenous peoples continued to exercise sovereignty over their remaining lands and peoples, the law no longer recognised their independence.
[8] In Australia, the unique approach to settlement, which
denied even the fact of occupation by Indigenous peoples, led to even greater
human rights abuses. The colonisers did not merely reject the rights of
Indigenous societies to govern themselves, but also denigrated
their rights
within the new colonial societies. The exploitation of labour, the denial of
effective participation in social and political
life, the denial of protection
under the law and the legalised or condoned violence and genocide against
Indigenous peoples were
an integral part of Australia’s colonial identity.
The ideology of racial superiority justified the denial of individual rights
of
Indigenous peoples to manage their own affairs as individuals and as groups.
These are not innocent legal myths but are part of
the practical operation of
colonial government that has operated to deny Indigenous rights and
self-government for over two centuries.
Moreover, they are based on ideals that
are central to the philosophies of governance upon which Australian institutions
and systems
of government are
founded.[9]
[10] It is not surprising that when the colonial governments negotiated the federal settlement, they wanted to retain their discretion to exploit Indigenous peoples, their wealth and resources, without interference from a federal government. The still burgeoning economies were dependent upon continued expansion into Indigenous territories. The treatment of Indigenous people as non-citizens, divorced from any identity as self-governing polities with wealth or resources, was reinforced in the text of the new Constitution. Indigenous peoples were considered to be a resource to be managed as each colonial government saw fit, their civilisation and welfare, too, were matters considered settled by the principles of governance in place in each of the colonies.
[11] As a result, s 51(xxvi) of the Constitution, which provides that the Commonwealth can legislate for ‘the people of any race’, specifically reserved the power to legislate for Indigenous peoples to the States. Moreover, proposals for an equal protection clause that may have guaranteed the equal application of laws to all people regardless of gender, race, or ethnicity were rejected because they may have impinged on the ability of the States to discriminate on the basis of colour and race.[11] Similarly, the right to vote at federal elections was framed in a way that would accommodate the States that chose to deny the fundamental right of political participation to Indigenous peoples and other people of colour.[12]
[12] Despite their deference to colonial governments in relation to managing their Indigenous populations, even at the federal level, the principles of government were made consistent. Certain classes of people, identified by their race or colour, were subordinated and excluded and it was considered appropriate government policy to ‘regulate the affairs of people of coloured or inferior races’.[13]
[13] This principle has continued to play an important role in the
interpretation of s 51(xxvi) in recent times. While overt references to
Indigenous peoples in the
Constitution were successfully removed as a result of the 1967
referendum, it appears from recent cases that the 1967 amendments did not
overcome
the history of the framing of the
Constitution.[14] The
impetus for the amendments was to remove the obvious discrimination on the face
of the text and place greater responsibility
for Indigenous policy and rights
protection with the federal government. It was one of the most successful
referendums in Australia’s
constitutional history. The amendments,
however, did not recognise Indigenous peoples within the Constitution so much as
make the text completely silent on the place of Indigenous peoples in Australian
legal and political structures. It has
merely ensured that the power to
discriminate against Indigenous peoples has been entrenched and
centralised.
[15] However, successive federal governments have been reticent to
champion the promotion, recognition and protection of Indigenous
rights where it
would require a challenge to the racism at the core of Australia’s
societal values. Instead, a tolerance for
racism has been nurtured. Allowing
those values to direct policy development has resulted in the fragmentation of
issues and the
isolation of the impacts of the colonial relationship. This year,
while reflecting on the centenary of Federation, Indigenous peoples
have called
for a renegotiation of the relationship between Indigenous peoples and the state
that diverges from the policies of the
past and reconverges to form a new
approach. An examination of the key debates on reconciliation and native title
illustrates the
need to approach Indigenous policy at a more fundamental
structural level.
[17] As part of an ongoing campaign, the Barunga Statement was delivered to Prime Minister Hawke during the Bicentennial celebrations in 1988. It again stated Indigenous demands for the recognition and protection of Indigenous rights within the legal and political structures of the Australian state. Arguably, this precipitated the development of a process to address Indigenous disadvantage and produce reform in the lead up to the centenary of Federation. In 1991, the Commonwealth Parliament enacted the Council for Aboriginal Reconciliation Act 1991 (Cth), which provided for the establishment of the Council for Aboriginal Reconciliation.
[18] While one of the purposes of the Council was to consider a document or documents of reconciliation, such as a treaty, the main focus of the Council’s work over its ten year life was to improve relations between Indigenous and non-Indigenous people at the community level.[16] In particular, the Council sought to raise awareness about Indigenous peoples’ history and distinctive place within Australian society. This emphasis was clearly aimed at addressing the individual racism and discrimination experienced by Indigenous people, as well as the lack of national acceptance of Indigenous culture and Indigenous peoples’ view of Australian history. It was thought that fundamental change would come from a people’s movement. The philosophy was based on an individual understanding of the principles of equal participation and appreciation of cultural difference, even embracing Indigenous culture and traditions as part of Australian identity. However, it did not extend to political autonomy. Indeed, when the Chairperson of the Aboriginal and Torres Strait Islander Commission, Mr Geoff Clark, at Corroboree 2000, spoke of a treaty as a component of ‘true’ reconciliation which goes beyond merely a show of public support, members of the Council were concerned that support for the less confronting values of tolerance and cultural diversity would not survive the introduction of this political element.[17]
[19] Toward
the end of its time, the Council became more focused on the need to publicly
address the lack of recognition of Indigenous
peoples’ rights within the
broader community and encouraged public education and awareness. While
maintaining its commitment
to community-based initiatives in promoting respect
for Indigenous rights, the Council, in its Final Report, acknowledged that there
are some issues that must be dealt with between Indigenous peoples and the
state:
Reconciliation also requires a formal resolution of issues that were never addressed when this land and its waters were settled as colonies without treaty or consent.[18]
[21] Former
Prime Minister, Malcolm Fraser, in the 2000 Vincent Lingiari Lecture, argued
that it is the government that has the resources,
authority and power to achieve
reconciliation:
[I]t is the government that must ... persuade all Australians that we must act with greater expedition and greater generosity. Government, if not this, another, will set the pace.[20]
[24] These policy objectives seek to address Indigenous disadvantage as an issue of individual rights. This does not exclude issues of cultural appropriateness and involvement of Indigenous peoples in some levels of decision-making with regard to service delivery in order to achieve the full enjoyment of citizenship. However, it does not admit Indigenous peoples’ autonomy to address these issues collectively, especially where that is expressed as a right to be self-governing in regions or over jurisdictions for which they have the capacity and desire to assert control. It certainly does not admit an underlying constitutional issue.
[25] As with any liberal legal concept, there is a danger of individualising the concept of equality. Practical reconciliation does not envisage Indigenous peoples’ claims as the collective rights of peoples, which transcend the ending of discrimination. The policy reflects a view of rights in which, for example, the prohibition of discrimination and support for ‘special measures’ are seen as embracing the idea of equality as a formal sameness of treatment.[21] This remedial rights framework is an extension of the ‘civilising’ of the Indigenous population to enjoy the ‘superior’ way of life and enjoy equal participation in the uniform structures of colonial government, where individual rights can be accommodated.[22] To confuse the concept of equality with sameness in this way is to use equality and freedom from discrimination as a ‘guise for assimilation’.[23]
[26] This philosophy has underpinned the recent approach to Indigenous policy generally, replacing the concept of self-determination that had been the stated policy of Australian governments since the Whitlam Labor Government of the early 1970s. The self-determination policy in Australia sought to address discrimination by ensuring that Indigenous peoples were directly involved in decisions about legislative and policy changes and not merely consulted as another minority interest group. However, this occurred predominantly within existing or imposed structures, with the Aboriginal and Torres Strait Islander Commission most often held up as the pinnacle of Australia’s policy of self-determination.
[27] Self-determination is understood in international
legal theory as the right of a people to participate in decisions that directly
affect their rights and interests. Self-determination is often understood as a
process right that respects a people’s autonomy
and authority in
decision-making. Therefore, it also has the character of a right of
self-government, whereby the institutions that
govern Indigenous peoples,
whatever they may be, are freely chosen by them. International bodies have
recognised that this may require
‘positive measures’ to allow
Indigenous peoples to exercise the responsibility for their own
decisions.[24] However,
this first requires an acknowledgment of Indigenous peoples’ distinct
constitutional identity. This had been a conceptual
difficulty for previous
governments, despite the rhetoric of self-determination, but is clearly rejected
by the most recent policy
of practical reconciliation.
[29] The form of title recognised by the High Court in the Mabo case is not merely recognition of private or individual rights to land. Moreover, in Western Australia v Commonwealth (‘Native Title Act Case’), the High Court rejected the view that a law protecting Indigenous peoples’ unique rights over land was merely a ‘special measure’ to overcome disadvantage.[29] It was not discriminatory, they argued, because the distinct identity and status of Indigenous peoples were relevant in distinguishing the way in which Indigenous peoples’ relationship with land was recognised and protected.[30]
[30] Native title affirmed a communal title that arose from, and carried with it, the power to determine the law and custom applicable to land. The native title doctrine is therefore an acknowledgment of the continuation of Aboriginal law and Indigenous society as a source of authority. The rights of Indigenous peoples are recognised by virtue of their existence as distinct peoples and a distinct constitutional entity, and not merely as a cultural minority within an otherwise homogenous Australian polity.[31] For these reasons, the Mabo case is seen as a high watermark in the relationship between Indigenous peoples and the state.
[31] However, at the same time that the courts recognised Indigenous peoples’ distinct constitutional identity, they asserted that the state has the power to divest those rights unilaterally, without consent or recompense.[32] The majority of the judges in Mabo held that such ‘acts of state’, though adverse to the rights of Indigenous peoples, could not be legally wrongful.[33] The court relied on the irresistibility of power as a source of sovereign authority.
[32] Native title, they argued, can be extinguished by a valid exercise of governmental power that demonstrates a clear and plain intention.[34] The basis for this is the claim that the underlying title of the state may be perfected by the exercise of complete dominion. Thus, the native title doctrine establishes a hierarchical relationship between Indigenous interests and the interests of others and re-introduces an element of dependency of Indigenous rights on the goodwill of the state.[35] The Court determined that native title did not enjoy the same protection as other interests and was, therefore, a much more vulnerable title than any non-Indigenous title.
[33] The High Court, as a matter of policy and expediency, chose to subordinate the rights of Indigenous peoples to other interests, even limiting the availability of compensation for the damage caused by past acts and policies. They have placed native title so low in the hierarchy of rights and interests in land that Indigenous peoples do not have the power to determine development on their lands. Rather than aim to reflect, to the fullest extent, the rights of Indigenous peoples to own, develop and control their land, the courts have relied on the of the rights, as emerging from Indigenous society, as a source of vulnerability.[36]
[34] The doctrine of extinguishment replaced terra nullius, with a basis for dispossession no less reliant on a conception of Indigenous society as a relic of ‘prior sovereignty’. While acknowledging Indigenous rights as unique, the doctrine does not see Indigenous society as an equal source of rights and obligations.
[35] The Court constrained the arbitrary treatment of Indigenous rights by holding that the introduction of the Racial Discrimination Act 1975 (Cth) (‘RDA’) ensured that, at minimum, the same protection – such as the constitutional guarantee of just terms for compulsory acquisition of property – that applies to non-Indigenous interests must also apply to Indigenous titles.[37] In the absence of constitutional entrenchment of the principle of non-discrimination, however, the paramountcy of the Australian legislature makes it possible for the Commonwealth Parliament to pass laws that are inconsistent with the RDA. The Commonwealth Parliament exercised this power in s 7 of the Native Title Act 1993 (Cth) (‘Native Title Act’) in order to validate non-Indigenous interests that may have been affected by the recognition of native title.
[36] The Native Title Amendment Act 1998 (Cth) further circumscribed native title rights and interests and again validated non-Indigenous titles. The amendments were based on the same philosophy underpinning practical reconciliation, to treat all interests the same without differentiation. The federal government had embraced the idea of ‘balancing’ rights and interests so that native title would not unduly interfere with the interests of others.[38]
[37] The
Mabo decision did not deliver a just settlement either through the
decision itself or through the Native Title Act
and its amending Act. It did not address the legitimate historical grievances of
Aboriginal and Torres Strait Islander peoples. Despite
these significant
limitations, the recognition of native title has forced a fundamental change in
attitude toward the right of Indigenous
peoples to assert their distinct
political identity. In recognising collective rights to traditional lands, the
courts have provided
a more secure base from which to argue for a greater role
in decision-making over those lands and greater respect for Indigenous
peoples’ claims more generally.
[39] After a decade of separation between native title and reconciliation and the removal of treaty questions from the agenda, there is now an unavoidable overlapping of these processes. One can no longer be considered without touching or more likely embracing the others. The underlying fundamental relationship between Indigenous peoples and the state and the assertion of self-determination by Indigenous peoples lies at the heart of all of these engagements.
[40] The concerns expressed by the NAC in 1979 have returned for reconsideration in a new debate. Despite their failings, the reconciliation and native title processes have set the groundwork for a reinvigorated treaty debate. The reconciliation process remains directed primarily at changing non-Indigenous views and relationships at an individual and community level. For Indigenous peoples to continue to engage in such a process, a response is required at a national government level that respects Indigenous peoples’ status within the Australian society as constitutional entities, based on a policy of equality of peoples. A framework is needed, within which Indigenous and non-Indigenous peoples can renegotiate and restructure their relationship. Debates on native title and reconciliation have provided a context for this discussion by setting a benchmark against which recognition can be measured and by providing a new language of Indigenous authority and an ongoing process of engagement.
[41] But the limitations of these processes have constrained their capacity to deal comprehensively with Indigenous peoples’ claims. Ultimately, practical reconciliation, reconciliation as envisaged by the Council and native title are not, of themselves, the appropriate method for structuring the relationship between Indigenous and non-Indigenous peoples. Those debates have not moved beyond the cultural imperialism of the Australian colonial mindset. While they embrace Indigenous cultural identity, they maintain Indigenous political identity within a scale of social organisation that legitimises the management of Indigenous affairs from outside and denies Indigenous peoples’ autonomy in decision-making processes.
[42] Colonialism and its racist ideology is not a relic of Australia’s past, it is a part of the fabric of the Australian identity, how we are governed and how we respond to the claims of Indigenous peoples in contemporary debate. The claims that Indigenous peoples make today cannot be divorced from their historical context and the failure by the British in their invasion and occupation of Australia to negotiate an agreement with the First Peoples. The concept of ‘unfinished business’ seeks to capture this idea that practical measures of addressing Indigenous peoples’ lived experience of discrimination cannot ignore the fundamental renegotiation of the Australian state demanded by Indigenous peoples. The failure to obtain the consent of Aboriginal and Torres Strait Islander peoples, subsequently compounded by the dispossession and ill-treatment of the Aboriginal and Torres Strait Islander peoples by the new arrivals and their descendants, provides a moral component to these claims.
[43] These grievances are not defined by meeting the physical needs of Indigenous peoples. The moral legitimacy will never be met by better informed government policies of service delivery and the provision of reasonable health, housing and education – of so-called practical reconciliation. Intensive government programs directed at bringing about equality with other citizens will not, of themselves, provide justice for Indigenous peoples.
[44] To address this question of legitimacy, there has to be a recognition and acceptance by the state of two factors. First, that the Aboriginal and Torres Strait Islander peoples have been injured throughout the colonisation process and just recompense is owed. Second, that the Aboriginal and Torres Strait Islander peoples as First Peoples have distinctive rights and a special status based on prior and continuing occupation of land, and authority and autonomy as distinct polities.
[45] Indigenous peoples in Australia must have a process for renegotiating a place within the constitution of Australian society that accommodates their myriad histories and aspirations for the future. This process must be driven by national leadership and a national framework that sets benchmarks for the recognition of rights and interests. Indigenous peoples deserve respect as the First Peoples of this land and deserve to be reinvested with their heritage in ways that resonate within Australia’s ‘national’ identity. Renegotiating the relationship between Indigenous peoples and the state will provide greater legitimacy to Australian nationhood and the sense of shared identity that has been palpably absent in Australia’s first one hundred years.
[46] The time is right to talk
about a treaty during the centenary of Federation. Even the word
‘federate’ is derived
from a Latin word meaning to make a treaty.
The Constitution is
essentially a treaty between the former colonies and the Imperial Parliament of
Britain. Aboriginal and Torres Strait Islander
peoples were excluded as relevant
parties in the formation of the Australian federation. If treaties, or indeed
the Constitution, had been negotiated on the basis of principles of respect for
the equality of Indigenous societies, and provided a place for Indigenous
peoples within the federal system, the structure of Federation would, no doubt,
have incorporated a different dynamic. A national
treaty process that invites
Indigenous peoples to participate as partners in this federation will reflect a
nation that has matured,
and a people who have matured as a nation and who have
rejected racism as their founding value.
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URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/68.html