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Indigenous Peoples: Issues in International and Domestic Law Ch. 1

Indigenous Peoples:Issues in
International and Australian Law


 

Seminar
One: A National Treaty with Indigenous Australians – the International Law
Perspective

The first seminar was held on 10 September 2002. It was chaired by
Professor Larissa Berehndt. Papers were presented by the then Aboriginal and
Torres Strait Islander Social Justice Commissioner of the Australian Human Rights Commission (legally known as the Human Rights and Equal
Opportunity Commission), Dr William Jonas AM, and Professor Ivan
Shearer, AM, RFD, then Challis Professor of International Law, University of
Sydney.

Papers presented at the Seminar:

Dr William Jonas - Native Title and the Treaty Dialogue

I would like to acknowledge the Eora people: the traditional owners and
custodians of the land where we meet
today.[1]

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[2], 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 [3] 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' [4] with
    regard to Aboriginal society. The proposition that Aboriginal people were
    'without laws, without sovereign and primitive in their social organisation' [5] 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.' [6] 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. [7]

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 1993 (Cth)
(NTA) 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' [8] 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.[9]

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

..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 peoples.

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 Gajerrong 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.[11]

It can be seen in the Miriuwung 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 law.

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. [12]

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 land.

The court's approach to the extinguishment of native title has been made
clear in the Miriuwung Gajerrong decision and the decision in Wilson
and Anderson
. [13] The first
requirement is to determine whether the NTA 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
legislation.

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 Act 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'.[14] 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"...[15]

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. 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. [16]

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.

Professor
Ivan Shearer -
A Treaty between the Aboriginal Peoples of Australia and the
Government of Australia from an International Law Perspective

In what follows I have not ventured into the history of proposals for a
treaty between the Aboriginal peoples of Australia and the Government of
Australia. Others here will know this much better than I. Nor do I wish to
suggest in detail what such a treaty might contain, if it were possible to bring
it about. My purpose is to address the nature of treaties in international law,
the possibility of treaties between state and non-state parties, and some
contemporary forms of treaty-making in the international arena that might offer
some helpful models or analogies.

In international law a treaty is
normally understood to be "an international agreement concluded between States
in written form and governed by international law". The Vienna Convention on the
Law of Treaties, concluded in 1969, and to which Australia and most other states
are parties, so defines the term in article 2 (1) (a). The Vienna Convention is
also regarded as an authoritative statement of customary international law. That
Convention, however, expressly recognises that there can be other forms of
agreement, such as between states and "other subjects of international law", the
legal force of which is to be determined by applicable rules of international
law independent of the Convention.

There can also be forms of agreement
that are not governed by international law. "Intention to create legal
relations" is as much a formal yardstick of characterisation in international
law as in domestic law. There can be agreements that are binding at the
political level but not at the legal level. In the practice of Australia and
other countries increasing use is made, in contemporary international relations,
of the "Memorandum of Understanding" as a mode of agreement. This mode produces
an agreement of less than treaty status. It is often used in the conclusion of
development assistance agreements or of transitory agreements relating to the
disposition of armed forces. In these cases it offers a more flexible form of
agreement, allowing for easier change in accordance with circumstances.
Australia regularly uses this form of agreement also in its relations with
Taiwan, but in this case by reason of the fact that it does not recognise Taiwan
as a State having a separate international personality from China. Memoranda of
Understanding are treated as binding at the political level but not enforceable
in international law.

What are examples of "other subjects of
international law" which are recognised as having the capacity to enter into
international agreements? The prime example is that of the United Nations, which
was recognised as having the capacity to enter into treaty relations with states
in an advisory opinion of the International Court of Justice in 1949. This
capacity is also possessed by certain international organisations, especially
the Specialised Agencies of the United Nations. Beyond these examples it cannot
be stated that there is a generally recognised capacity of non-state entities to
enter into treaty relations. It is a question of recognising international
personality as the basis of the power to enter into treaty relations. States in
the post-Westphalian order have been extremely reluctant to concede such
personality to entities other than states. A small, particular exception is the
recognition of the right of an authority representing a people engaged in an
armed struggle against a State Party in exercise of its right of
self-determination to make a declaration that it will apply the Geneva
Conventions and Additional Protocol I in relation to the
conflict.[17] That would have to be
regarded as a special case, dictated by humanitarian concerns.

Another
important facet of the post-Westphalian order also comes into play in assessing
claims to international personality. There is a profound reluctance, indeed
aversion, of states to concede any measure of international personality to the
various peoples constituting their own populations. The so-called "treaties"
concluded in the past between the colonial powers and indigenous peoples in
order to obtain cessions of territory were generally held to be valid acts of
the ceding indigenous sovereign in international law but, once title to the
territory had thus passed to the acquiring state, continuing relations between
the conqueror and the subject peoples came to be regarded as subject only to
domestic law.[18] This is true even
in New Zealand, where the Treaty of Waitangi is regarded as having status under
national law only. There is no current willingness among states to endorse the
notion of separate international personality among their peoples, since that
could lead to the endangering of territorial integrity and to ultimate
dismemberment. The Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among States in Accordance with the Charter
of the United Nations, adopted by consensus by the General Assembly of the
United Nations on 24 October 1970, included an interpretative paragraph on the
right of self-determination of peoples. It stated that:

Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent states
conducting themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed of a
government representing the whole people belonging to the territory without
distinction as to race, creed or colour."

So what of a "treaty" between the Aboriginal and non-Aboriginal peoples
of Australia? It is clear that the word "treaty" carries with it the
implications of (a) an intention to create legal relations between the parties
governed by international law; and (b) that the parties each possess a separate
international personality. I frankly cannot see any government of Australia
willing to negotiate any form of agreement carrying these
implications.

What I can foresee is a form of agreement between the
Aboriginal and non-Aboriginal peoples of Australia that has political,
preferably constitutional, status in the Australian legal order. A word should
be chosen for such an instrument free from associations that give rise to the
twin bogeys of sovereignty and international law. Ideally it should be a unique
word, not associated with any other situation. I have yet to hear a better term
than Makaratta, which was proposed more than 20 years ago. But perhaps a more
acceptable term will emerge. It is not the name that matters, but what it
conveys as a truthful and potent vehicle for setting black-white relations on a
positive course. International law is not entirely irrelevant, however. It can
provide useful analogies and precedents for such an instrument.

If I can
be allowed a comment as a distant observer of, but not as a participant in, the
debate of the past 20 years, I have the impression that too much has been
proposed for inclusion in what I shall continue to call "the treaty". It seems
as though the participants from all sides have envisaged a lengthy and
comprehensive text that would settle all questions. In my opinion that road will
lead to inevitable frustration. Moreover, can or should all such questions be
settled at one particular point of history? What I would suggest is a short and
simple instrument that creates a
framework[19] for the future course
of black-white relations in Australia and for work on an ongoing basis on
particular questions. Such a treaty would contain:

(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.

I would hope also that the treaty, at least in its initial parts,
would contain "constitutional poetry" of an inspirational kind.

A number
of examples of the kind of treaty I have in mind exist in the international
sphere. They are often called "framework conventions". They typically begin with
preambular paragraphs that identify the problems and objectives and assert a
common resolve to work towards their resolution and attainment. They then
proceed to commit the parties to co-operation in a concerted effort to achieve
the objectives of the Convention. The approach is programmatic rather than
definitive. No party commits itself to precise and binding obligations. What is
established by the convention is an ongoing process, not a final settlement. The
legal obligation arising from such conventions may consist, in the final
analysis, only of the obligation to demonstrate good faith in engaging in the
forms of co-operation set out in the
convention.[20] But good faith
should not be seen as an obligation devoid of content; it is an important
principle of both international law and national law in its own
right.

There are a number of examples. I shall mention two of
them.

  • (a) The Helsinki Final Act on Security and Co-operation in Europe, 1975.

All the states of Europe, including the Soviet Union, and the
United States and Canada, signed this instrument. The name itself throws doubt
on its status as a legal binding agreement, since that term has traditionally
been used for a statement of the outcome of a conference rather than a treaty
text. Indeed the Helsinki Final Act itself explicitly states that it does not
qualify as a treaty or convention required to be registered under article 102 of
the Charter of the United Nations. However, the commitment of the parties to act
in good faith is emphasised in the last paragraph of the document, where the
signatories state that they are "mindful of the high political significance
which they attach to the results of the Conference" and where they declare
"their determination to act in accordance with the provisions contained in the
above texts."

The Final Act then proceeds to identify the areas in which
the parties will co-operate with a view to achieving desired outcomes. These
areas are termed "baskets". Basket I confirms ten general principles of
relations between the parties based on their obligations under the UN Charter.
It then sets out guidelines for the establishment of confidence-building
measures in the field of security, including the giving of advance warning of
military exercises and the exchange of observers. Basket II relates to
co-operation in the field of economics, science, technology, and of the
environment. Basket III relates to co-operation in the humanitarian and other
fields. These other fields are identified as human contacts, information,
culture, and education. The Fourth, and final, Basket establishes a continuing
process of the Conference on Security and Co-operation in Europe (CSCE) to
verify compliance with the commitments of the participating states. This has now
flowered into an organisation, called the OSCE, which has played a significant
part in recent European events, such as the break-up of the former
Yugoslavia.

(b) The second example has been much in the news of late. It
is the United Nations Framework Convention on Climate Change, 1992.

The
Convention states an agreed objective in article 2 and a set of principles in
article 3. Article 4 on "commitments" is in the form of pledges of co-operation
and statements of aspiration to be followed within the framework. The actual
setting of specific targets is left to subsequent protocols, especially the
Kyoto Protocol of 1998. Even that Protocol contains elements of flexibility,
including recognition of the different capacities of developed and developing
economies.

Some commentators decry such instruments as "soft law". They
cannot conceive of law as anything other than "hard" and enforceable by
inflexible legal processes backed up by sanctions. Such an attitude ignores the
realities of international relations and - by extension - the realities of
sensitive national political issues, such as the situation of Aboriginal
Australians. In fact, so-called soft law has produced outstandingly successful
results in the first example, and moderately successful results in the second.
Even in the second example, the great force of the dynamics of the process set
in train is evident in the defensive postures of those states that are reluctant
to commit themselves to specific emission targets. They may shy away from
specific targets but they dare not disengage themselves from the process. In the
end an accommodation will be reached.

In this brief paper I have
stressed ideas from the international sphere that I think could be fruitfully
employed in the search for a model treaty between Aboriginal and non-Aboriginal
Australian citizens. They include 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.


[1] Editors note: the terms
‘Eora’ and ‘Gadigal’ are both used in these papers to
refer to the Aboriginal people of Sydney. Eora refers to the people of the wider
Sydney area. Of those people, the Gadigal inhabited the area from South Head
through the present Eastern suburbs to Sydney Cove and ending at Darling Harbour
(see State Library of New South Wales, Eora – Mapping Aboriginal Sydney
1770 – 1850,
2006 pp 1-5).

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

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

[4] Ibid p38.

[5] ibid, p36.

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

[7] Mabo decision, op cit, p58

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

[9] Mabo decision, op cit, pp44 -
45

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

[11] Miriuwung Gajerrong
decision, op cit, p43.

[12] Mabo decision, op cit,
p63.

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

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

[15] 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.

[16] Martinez, M., op cit,
para 317

[17] Additional Protocol I (1977)
to the Geneva Conventions of 1949, article 96(3).

[18] See e.g. the decisions of
the Privy Council in In re Southern Rhodesia [1919] AC 211, and in Hoani Te Heu Heu Tukino v. Aotea District Maori Land Board [1941] AC 308,
and the arbitral award in the Delagoa Bay case (1875), Moore, J.B.,
International Arbitrations, 4984. See generally G. Alfredsson, "Treaties with
Indigenous Populations" in Encylopedia of International Law Vol.2,
951-953.

[19] This notion has been
suggested previously also by the Final Report of the Council for Aboriginal
Reconciliation to the Prime Minister and the Commonwealth Parliament, 7 December
2000.

[20] The duty to co-operate in
good faith under the World Heritage Convention was regarded by the High Court in
the Tasmanian Dam case to be a sufficient obligation - if obligation were
needed - to enliven the external affairs power of the Constitution: Commonwealth v. Tasmania (1983) 46 ALR 625, per Mason J. at 697-700,
Brennan J. at 771-779, and Deane J. at 805.