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Native Title and the Treaty Dialogue

Aboriginal Aboriginal and Torres Strait Islander Social Justice

Native Title and the Treaty

Speech delivered by Dr William
Jonas, AM at a seminar hosted by the Aboriginal and Torres Strait Islander
Social Justice Commissioner and the International Law Association, 10
September 2002.

I would like to acknowledge
the Eora people: the traditional owners and custodians of the land where
we meet today.

It is very fitting
that we discuss native title in the context of a treaty just one month
after a very significant native title decision, the Miriuwung Gajerrong
decision [1], has been handed down by the High Court.
406 pages of honed legal reasoning cut through almost the entire history
of non-Indigenous land law in Western Australia to decide the final shape
that native title would take for the Miriuwung Gajerrong people.

It took about a week
for people interested in this decision to properly formulate their views
on its significance and for comments and opinions to filter through the
media. One view that intrigued me came, not so much from the inner circle
of people working in the area, but rather from the letters of ordinary
but concerned citizens. Many simply asked 'What happened to Mabo?'

People weren't asking
this question from a legal perspective. They weren't asking; 'How and
to what effect did the native title legislation prevail over the common
law principles established in the Mabo decision?' What they were asking
was "What happened to the spirit of Mabo? What happened to the promise
that Mabo held out for a new relationship between Indigenous and non-Indigenous
people." And even though these people did not necessarily understand
the legal reasoning of the Miriuwung Gajerrong decision, they understood,
perhaps intuitively, that Mabo's promise had been broken, and that native
title had not delivered a new relationship.

It is perhaps fitting
then that we recall, in the context of a treaty dialogue, why the Mabo
decision [2] came to represent the promise of a new relationship
between Indigenous and non-Indigenous people in much the same way that
a treaty does.

Firstly Mabo overturned
terra nullius. It branded it a fiction and a racially discriminatory one
at that. This then created space within the common law for the recognition
of native title. But it created this space in a particular place; a place
also significant to treaty-making. It created it at the foundation of
our nation and the political relationship that this foundation was based
on; that between Indigenous and non-Indigenous people.

In Mabo the
High Court rejected terra nullius as a basis for the foundation of this
nation on three grounds;

  • Terra nullius
    no longer accorded with 'present knowledge and appreciation of the facts'
    [3] with regard to Aboriginal society. The proposition
    that Aboriginal people were 'without laws, without sovereign and primitive
    in their social organisation' [4] could not be sustained
    in the light of present knowledge about the complex and elaborate system
    by which Indigenous society was governed at the time of colonisation.
  • Terra nullius
    no longer accorded with the values of contemporary society. In particular
    terra nullius is a discriminatory denigration of Indigenous society
    which was considered 'so low in the scale of social organisation that
    their usages and conceptions of rights and duties are not to be reconciled
    with the institutions or the legal ideas of civilized society.' [5]
    The notion of equality relied on by the Court to reject terra nullius
    was one that recognised and gave equal respect to the distinctive characteristics
    of Indigenous society.
  • Terra nullius
    is out of step with modern international law, particularly in relation
    to the human rights of equality and self-determination. In this regard
    the Court was influenced by the decision of the International Court
    of Justice in its Advisory Opinion of Western Sahara (1975) ICJR
    that rejected terra nullius as the basis for Spanish sovereignty in
    Western Sahara.

The rejection of
terra nullius was a rejection of the assertion that Indigenous people
were not socially or politically constituted. The promise of native title
was that terra nullius would be replaced, not by another value judgment
by non-Indigenous society about Indigenous society, but rather by a recognition
of and protection for the system of laws and customs that give Indigenous
people their status as a sovereign people. Justice Brennan's judgment
suggests as much:

Native title
has its origins in and is given its content by the traditional laws
acknowledged by and the traditional customs observed by the indigenous
inhabitants of a territory. The nature and incidents of native title
must be ascertained as a matter of fact by reference to those laws
and customs. The ascertainment may present a problem of considerable
difficulty…It is a problem that did not arise in the case of
a settled colony so long as the fictions were maintained that customary
rights could not be reconciled 'with the institutions or the legal
ideas of civilized society' that there was no law before the arrival
of the British colonists in a settled colony and that there was
no sovereign law-maker in the territory of a settled colony before
sovereignty was acquired by the Crown.

Mabo also recognised
that this distinct identity; and the system of laws on which it was based,
was not frozen in time but could evolve, changing in response to circumstances
yet nevertheless retaining its characteristic as a distinct social and
political system.

When people today
ask 'What happened to Mabo?' they are asking what happened to these monumental
shifts in thinking that sought, in much the same way a treaty seeks, a
new foundation for this nation in an equitable relationship between Indigenous
and non-Indigenous people. What most people don't realise is that the
failure of the law of native title to achieve this transformation originates
in the Mabo decision itself and the concept of sovereignty constructed
by it. The Miriuwung Gajerrong decision is but a logical consequence
of these beginnings. It is also a response to the Native Title Act
which reinforces the common law position.

There is a troubling
disjuncture in the reasoning of the High Court in the Mabo decision. On
the one hand 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. Confirming the principle in the
Seas and Submerged Land case that the 'acquisition of territory by a sovereign
state for the first time is an act of state which cannot be challenged,
controlled or interfered with by the Courts of that state' [7]
Justice Brennan in Mabo identified the extent of the court's power as
merely 'determining the consequences of an acquisition [of sovereignty]
under municipal law'.

The assertion in
Mabo of supreme and exclusive sovereign power residing in the State has
determined the development of native title in two significant ways. First,
the characteristics of Indigenous sovereignty, the political, social
and economic systems that unite and distinguish Indigenous people as a
people, have been erased from native title. Second, and as a consequence,
the state's power to extinguish native title is supreme.

First, the
failure of the common law to recognise Indigenous people as a people,
with sovereign rights.

The failure to conceive
of native title in terms of sovereign rights recognised at international
law was postulated in Mabo as a result of an inherent limitation of the
common law itself. As Brennan said:

There is a distinction
between the Crown's title to a colony and the Crown's ownership of
land in the colony…The acquisition of territory is chiefly the
province of international law; the acquisition of property is chiefly
the province of the common law. [8]

By being consigned
to the common law, Indigenous people's relationship with the land is constructed
as a domestic property right, rather than as political, cultural or sovereign

Special Rapporteur
and now chair of the Working Group on Indigenous Populations, Miguel Alfonso
Martinez, in his Study on treaties, agreements and other constructive
arrangements between States and Indigenous populations
, [9]
June 1999, refers to this phenomena as 'the domestication of the indigenous

..that is to
say, the process by which the entire problematique was removed from
the sphere of international law and placed squarely under the exclusive
competence of the internal jurisdiction of the non-indigenous states.
In particular, although not exclusively, this applied to everything
related to juridical documents already agreed to (or negotiated later)
by the original colonizer States and/or their successors and indigenous

Terra nullius was
a particularly brutal method of achieving this end of relegating the rights
of Indigenous people to the internal laws of the coloniser. The common
law of native title while giving some recognition to Indigenous traditions
and customs nevertheless continues this process of domestication.

A construction of
native title as a bundle of rights, confirmed in the Miriuwung Gajerrong
decision, also reflects the failure of the common law to recognise Indigenous
people as a people with a system of laws on which a relationship to land
is founded. Native title as a bundle of separate and unrelated rights
with no uniting foundation, is a construction which epitomises the disintegration
of a culture when its governing essence is neatly extracted from it.

In the Miriuwung
decision, the High Court preferred the 'bundle of rights
analogy' which, the majority argue, at least provides for the recognition
of residual rights once the 'core concept of a right to be asked permission
for access and to speak for country' are extinguished. In view of their
finding that this 'core concept', something I suggest akin to a sovereign
right, is inherently fragile against 'the imposition of a new authority
over the land', the recognition of residual rights probably does take
on increased importance. The majority put it as follows;

An important
reason to conclude that, before the NTA, native title was inherently
fragile is to be found in this core concept of a right to be asked
permission and to speak for country. The assertion of sovereignty
marked the imposition of a new source of authority over the land.
Upon that authority being exercised, by the creation or assertion
of rights to control access to land, the right to be asked for permission
to use or have assess to the land was inevitably confined, if not
excluded. But because native title is more than the right to be asked
for permission to use or have access (important though that right
undoubtedly is) there are other rights and interests which must be
considered, including rights and interests in the use of the land.

It can be seen in
the Miruwung Gajerrong decision, as in the Mabo decision,
that the construction of native title at common law as an inherently fragile
and inferior interest in land, originates form the supreme power of the
sovereign state to relegate it to this position. Native title is premised
on this relationship of inequity, it does not transcend it.

The practical effect
of a construction of native title as a fragile and dispersed bundle of
rights is to facilitate its destruction through extinguishment, This then
brings me to the second characteristic of supreme sovereign state
power, underlying the Mabo decision and the development of native title

The power to
Extinguish native title

The power of the
state to extinguish native title and the continuing exercise of this sovereign
power underlies the development of native title at common law. As Brennan
stated in Mabo:

Sovereignty carries
the power to create and to extinguish private rights and interests
in land within the Sovereign's territory. It follows that, on a change
of sovereignty, rights and interests in land that may have been indefeasible
under the old regime become liable to extinction by exercise of the
new sovereign power. [11]

Broadly speaking,
extinguishment takes place in two stages of the native title process.
First, in the recognition stage, the court will only recognise claims
where there has been an ongoing connection between the claimants and the
land. Thus, historical dispossession through legislative or executive
acts, or any other unauthorised (including illegal) acts will be confirmed
in the native title process. The pending decision of the High Court in
the Yorta Yorta case will decide the extent of 'extinguishment'
in this stage of the native title process.

Second, even if the
claimants' relationship to their land withstands this historical dispossession
and their connection remains strong, the court will, as a matter of law,
determine whether the title has in any case been extinguished by the creation
of non-Indigenous interests (whether current or expired) over the same

The court's approach
to the extinguishment of native title has been made clear in the Miriuwung
decision and the decision in Wilson and Anderson.
[12] The first requirement is to determine whether the
Native Title Act prescribes extinguishment, either through the 'past act'
regime or the confirmation provisions. Where the NTA is silent on extinguishment
the common law will operate and extinguish native title either completely,
where the subsequent interest amounts to exclusive possession, or partially,
to the extent of any inconsistency with the subsequent, non-Indigenous
interest. The High Court also decided the question, left open in the Wik
case, of whether, in the event of inconsistency native title is suspended
for the duration of the inconsistency or whether it is permanently extinguished
to that extent. Permanent extinguishment was preferred.

This preference confirms
the underlying premise on which native title is constructed through the
common law and the legislation; that the acquisition of sovereignty by
the British was to the exclusion of any other sovereign power, including
Indigenous people, and that the state is the sole repository of this power.
As I said previously, the Miriuwung Gajerrong decision and the
extensive extinguishment it contains, naturally follows from the assumptions
about sovereign power contained in the common law and the native title

I want now to posit
a different set of assumptions about sovereignty and power in order to
break through the impasse which native title has reached to allow a real
dialogue about a treaty to take place. But rather than approach these
issues by seeking to re-define state sovereignty I want to approach it
from the perspective of Aboriginal sovereignty.

To date, Aboriginal
sovereignty has tended to be defined as something analogous to the sovereignty
of the State or government in international law. It has, in my opinion,
been wrongly conflated with the concept of 'State sovereignty'.

The effect of this
is to establish a framework in which Aboriginal sovereignty is pitted
against the existing system. Aboriginal sovereignty immediately becomes
an oppositional force; a threat to territorial integrity; to our system
of government; to our way of life. And as a consequence, it irresistibly
leads the broader community to the conclusion that Aboriginal sovereignty
cannot be recognised and must be resisted.

This issue of definition
of Aboriginal sovereignty is one of the main concerns that I have at this
early stage of debate about a treaty. There has been an illegitimate and
quite wrongful assumption made by Government that it has the prime
role in defining what Aboriginal sovereignty is.

This is the wrong
starting point for the treaty debate. It gives pre-eminence to non-Indigenous
understandings even before the process has gotten underway. Defining Aboriginal
sovereignty in these terms, in non-Indigenous ways, is a way of guaranteeing
its fragility and ultimate demise.

There is a second
set of concerns that I have about the defining of Aboriginal sovereignty
as the same as, and thus a competitor of, State sovereignty. This is that
it also promotes a concept of power in Australian society as static and
monolithic; only able to reside in the State - the government - and unable
to be changed or challenged.

There are a number
of problems with this construction of power, not least of which is its
lack of reality. The nature of Australian sovereignty continually changes
and is constantly being re-aligned and redistributed among a myriad of
levels and players. The distribution of sovereign power is not
fixed and unable to be challenged.

Historically, this
evolving nature can be demonstrated by looking at the movement from the
process of colonisation in the eighteenth and nineteenth centuries; to
the federation of these colonies in 1900; to the continual re-alignments
of power between the states, territories and federal governments under
the Constitution; to the creation of new territories - such as the Northern
Territory and A.C.T in the past forty years; to the passage of the Australia
in 1986 - just 16 years ago - when for the first time Australia
became autonomous from the British legal system. It continues with ongoing
debates about statehood for the Northern Territory; the possibility of
becoming a republic; Australia's participation in the ANZUS alliance;
and so on.

Clearly, distribution
of power within society, between governments, is not static or monolithic.

But it is not just
inter-governmental relations which change the nature of power distribution
in Australian society. An equally important international force at play
is developments in international law. Broadly speaking, in the nineteenth
and early twentieth century, international law had shifted to a positivist
construction. This was based on the premise that 'international law upholds
the exclusive sovereignty of states and guards the exercise of that sovereignty
from outside interference' . [13] This approach has
increasingly been under challenge since 1945, particularly due to the
process of decolonisation and the recognition of human rights. A key feature
of this change has been the recognition of the rights of non-government
actors in the international system. Indigenous peoples are now, for example,
legitimately subjects and actors in the international legal system.

Ultimately, what
this means is that we see an international legal system that is moving
away from concepts of rights as being given by states or which
only exist thanks to the acquiescence or agreement of governments. The
move is towards a more naturalist, and truly universal, approach. Rights
are not within the discretion of governments to give or withhold but are
inherent. 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.

International law
remains an imperfect system and this is certainly highlighted by the disjunction
between the recognition of Indigenous people's rights by numerous expert
bodies and independent authorities within the United Nations, as against
the continued reluctance of government-run structures within the United
Nations to provide similar recognition.

In the negotiations
on the draft Declaration on the Rights of Indigenous People States still
resist including any recognition of a collective dimension to Indigenous
people's livelihoods and the full application of the principle of self-determination
to Indigenous peoples.

Why do they resist?
The reason usually given is to guarantee their territorial integrity and
sovereignty. As Indigenous representatives point out, the underlying assumption
here is that State sovereignty and territorial integrity are privileged
over the rights of Indigenous peoples to be self-determining. That they
have a higher claim to protection.

In fact just the
opposite is true. International law simply does not prioritise a State's
organisational form over the rights of its constituent members. The sanctity
of the State's integrity is dependent on it remaining representative
and being truly of the people.

As the former chair
of the Working Group on Indigenous Populations, Erica-Irene Daes has stated:

The concept of
"self-determination" has… taken on a new meaning in
the independent State to share power democratically. However, a State
may sometimes abuse this right of its citizens so grievously and irreparably
that the situation is tantamount to classic colonialism, and may have
the same legal consequences. The international community… discourage(s)
secession as a remedy for the abuse of fundamental rights, but, as
recent events around the world demonstrate, secession cannot be ruled
out completely in all cases. The preferred course of action, in every
case except the most extreme ones, is to encourage the State in question
to share power democratically with all groups, under a constitutional
formula that guarantees that the Government is "effectively representative"…

Continued government
representivity and accountability is therefore a condition for enduring
enjoyment of the right of self-determination, and for continued application
of the territorial integrity and national unity principles. [14]

International law
will generally support the claim of States to territorial integrity, but
this comes with responsibilities and the obligation to be representative
and inclusive of all its citizens, including Indigenous peoples. Martinez
makes the point:

The more effective
and developed the national mechanisms for conflict resolution on indigenous
issues are, the less need there will be for establishing an international
body for that purpose. [15]

Ultimately, what
this brief discussion of the international debate on self-determination
hints at is that increasingly the credibility and legitimacy of a State's
foundations, its sovereignty, depends on its inclusivity and the way it
treats Indigenous peoples.

The recognition of
native title came from an acknowledgement of important truths about our
past and the need to reconcile these truths with contemporary notions
of justice. But it also brought to the fore a fundamental conflict arising
at the time of the establishment of Australia as a colony; that is the
conflict between the assertion on the one hand that the settlement of
Australia gave rise to exclusive territorial jurisdiction by the colonial
power and, on the other hand, the illegality and immorality of asserting
this right without an agreement from those who previously occupied that
land and who continue to maintain their deep spiritual economic and social
connection to the land. The Miriuwung Gajerrong decision confirms that
the native title process, while valuable in giving recognition to inherent
rights, is not able to resolve this conflict.

Rather it must be
resolved through a treaty process which emphasises co-existence and mutual
benefit. Negotiation based on consent and equality can transform what
was a contradiction at the foundation of our nation between the conflicting
claims of Indigenous and non-Indigenous people to the jurisdiction of
traditional lands, into an agreement as to the basis of our coexisting
sovereignty over that same land.

The State of Western Australia v Ben Ward and Ors
; [2002] HCA 28,
8 August 2002

Mabo v Queensland, (No 2) (1992) 175 CLR 1.

Ibid p38

ibid, p36.

In re Southern Rhodesia (60) (1919) AC 211, pp233-234, per Lord
Sumner, quoted in Mabo decision, p39

Mabo decision, op cit, p58

New South Wales v Commonwealth (Seas and Submerged Lands Case)
(1975) 135 CLR p338

Mabo decision, op cit, pp44 - 45

Martinez, M., 22 June 1999, UN Doc E/CN.4/sub.2/1999/20,

Miriuwung Gajerrong decision, op cit, p43

Mabo decision, op cit, p63

Wilson v Anderson, [2002]HCA29, 8 August 2002, S101/2000

Marks, G, 'Sovereign states vs peoples: Indigenous rights and the origins
of international law
' (2000) 5(2) AILR 1, 3.

Daes, E, Explanatory note concerning the Draft Declaration on the Rights
of Indigenous Peoples
, 19 July 1993, UN Doc: E/CN.4/Sub.2/1993/26/Add.1,
paras 22,23.

Martinez, M., op cit, para 317