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Indigenous Peoples: Issues in International and Domestic Law Ch. 3

Indigenous Peoples:Issues in
International and Australian Law


 

Seminar
Three – Indigenous Peoples and Sovereignty

The third seminar in the series was held on Wednesday 10 November 2004 on
the topic of Indigenous peoples and sovereignty – does sovereignty mean
secession?
The seminar was chaired by Greg Marks, Convenor of the Indigenous
Rights Committee of the ILA (Australian Branch), who also provided introductory
comments. Papers were presented by the Aboriginal and Torres Strait Islander
Social Justice Commissioner, Human Rights and Equal Opportunity Commission, Mr
Tom Calma, and Mr David Ritter, then Principal Legal Officer, Yamatji Marlpa
Land and Sea Council and Visiting Fellow, Law School, University of Western
Australia.

Papers presented at the seminar:

Greg Marks - Introductory remarks

It is customary now to acknowledge, in a forum such as this, that the land on
which we stand, or on which this building stands, is Aboriginal land. This is
an entirely appropriate acknowledgement.

But such a simple formulation
does not take us very far and indeed its potential for glibness or for providing
an element of parading one’s enlightened consciousness can cover over the
real issues – who owned the land when Europeans arrived? Who now owns the
land? What are the implications of such ownership? And this, of course, is a
question wider than property or real estate law – it is not just who owns
parcels of land in terms of proprietorship, although this a central
consideration. Rather, is it is who owns the total extent of the land, that is
the territory in question, in terms of control and decision-making. It is
ownership as the constituent of sovereignty.

If we look at what happened
to the Aboriginal people of this area we see a disaster that unfolded quickly
despite the apparent good intentions of Governor Phillip. It was a disaster not
just of misunderstandings and cross cultural confusion. It was a disaster
inherent in the decision to occupy the land of another people. The contradiction
between the humane intentions of the British and the expropriation of the land
belonging to another society was not recognised. As Ian Jacobs in his History
of the Aboriginal Clans of Sydney’s Northern Beaches
observes:

In hindsight it seems quite bizarre that the well meaning and well
intentioned Phillip was deliberate in his attempts to establish friendly
relations when his purpose was to secure land from its traditional
owners.[1]

Here, I think, we
see the working of the concept of terra nullius in practical terms. The
British did not see the legal rights of the inhabitants, rights which it can be
argued are not merely moral rights but rights which have been recognised in the
law of nations going back over many centuries.

The frontier in Australia
is very recent. This is easily forgotten living in the midst of a complex,
modern and largely urban society. In a world of rapid technological progress,
intense engagement at the global level, and the increasing sophistication and
cosmopolitanism of Australia, we can readily lose sight of the fact that the
frontier is only a couple or a few generations ago. Take, for example, the life
of Olive Pink, an eccentric Daisy Bates type character who lived and worked with
Aboriginal people for a long period in Central Australia. When she camped to the
north west of Alice Springs with the Walpiri in the 1930s to undertake
ethnographic studies it was for many of these Warlpiri either a first or a very
early contact situation, and traditional life had scarcely been touched by the
European intrusion into their lands then getting
underway.[2]

My own
grandmother was born on a station in northern NSW and was cared for and looked
after by traditional Aboriginal people – one couple in particular. She was
an eyewitness to many of the events later re-told by Thomas Keneally in his book The Chant of Jimmy Blacksmith. At home we often heard about those tragic
events from our grandmother, long before Thomas Keneally heard and retold the
story.

So, the frontier is close to us in Australia, almost within
living memory. Thus questions of sovereignty – whose land it was, how it
came to be taken over and on what terms, and whether there are continuing claims
to some sort of sovereignty that can stand up in law, domestic or international,
these are questions that arise out of our immediate past. The legacy of the
frontier remains highly contested, and the resolution of these issues remains
central to Australia’s legitimacy and the justice of our legal and
constitutional arrangements.

However, the issue of sovereignty of
Indigenous peoples has been contested for a long time, since the original
European expansion into the New World in the sixteenth century. By what right
did Europeans acquire the territories of others, the Indigenous peoples, without
their agreement? The question was studied, debated and contested at the very
beginnings of international law, especially by Spanish jurists and theologians
such as Francisco de Vitoria and Bartolome de Las
Casas.[3]

The complex issues
raised then always centred around the concept of sovereignty. They still do. If
we ignore them, they will continue to haunt us. Issues of sovereignty and
jurisdiction, both in terms of historical grievances on the part of Indigenous
peoples, and their continuing claims for autonomy, will not go away from the
discussion of indigenous rights. This is despite the efforts of many states and
their domestic courts to refuse to acknowledge the continuing claims of
indigenous people to international
status.[4]

The Australian
courts continue to deny outright that there is any continuing Aboriginal
sovereignty or law-making capability past the date of acquisition of sovereignty
by the Crown.[5] Similarly, the courts
refuse to recognise that there is any ongoing responsibility, or fiduciary
obligation, in respect of indigenous peoples, arising from the usurping of their
ownership and control of their lands. In fact, the Australian High Court
characterises the complete destruction of Indigenous sovereignty, and hence of
any law-making or self-governance capacity, as a “cardinal
fact”.[6] As per Chief Justice
Gleeson and Justices Gummow and Hayne in the Yorta Yorta decision, the Court
asserts that “there could be no parallel law-making after the assertion of
sovereignty”.[7] Thus, the
Indigenous peoples of Australia who suddenly appeared on the legal landscape
with Mabo, did so on a pretty limited basis. They now had some,
vulnerable, property rights. But the door has stayed firmly shut on sovereignty.

Apart from native title, Indigenous Australians have no distinct and
inherent rights. They are entirely subject to the vagaries of Australian law
– even the international protection that should have been provided by
Australia voluntarily ratifying human rights treaties can, it seems, be ignored
with relative ease by the Australian Government.

However, others have
found a different path. In particular the US Courts and Governments have been
able to recognise a form of Indian sovereignty, albeit constrained and limited.
The doctrine of Indian tribes as separate nations, domestic and dependent, but
nations nevertheless was set out in a trilogy of cases by US Chief Justice
Marshall in the early 1830s.[8] This
doctrine remains the basis of relations between Indian tribes and the federal
government of the United States of America to this day, and provides Indian
tribes with a level of legal rights and self-government unimaginable in
Australia. And yet the US shows no signs of falling apart as a result of this
recognition of ongoing sovereign rights.

It has been persuasively argued
that US law in respect of Indian tribes reflects the doctrines of Indigenous
rights argued by Francisco de Victoria and others in the sixteenth
century.[9] Perhaps de Vitoria
provides a conceptual framework for dealing with the fact of two peoples sharing
the one land. Denying the application of terra nullius to the Americas,
de Vitoria, in a famous passage, concluded that:

The aborigines in question were true owners, before the Spaniards came among
them, both from the public and private point of
view.[10]

However, he also
allowed for very wide rights for the Spaniards in terms of sociability and
trade, going as far as rights of residence and of exploitation of resources. In
a way, this was a formulation of a co-existence regime, and although it was at
root unjust to the Indians, it nevertheless provided for an on-going Indigenous
sovereignty and for sets of legal rights existing side by side with those of the
colonists.

Such an attempt to live with and provide a legal framework
for the necessary ambiguity of settler societies has barely surfaced in the
legal and constitutional framework of Australia. However, Indigenous Australians
have discerned the need. Responding to the 10 Point Plan by which the Government
of the day proposed to amend the Native Title Act in response to the Wik
decision,[11] Indigenous negotiators
advanced an argument for
co-existence,[12] that is for
co-existence of legal rights of pastoralists and Aborigines – one land,
two owners.

I want to conclude with some brief general observations
about the way the concept of terra nullius has worked to be the
essentially racist justification of colonisation. The Roman law concept, which
was the international manifestation of res nullius, that is a thing not
owned by anyone but available to ownership by the first person to seize it with
the requisite intention to become its owner for as long as they controlled it,
was shifted by degrees from applying to lands that were genuinely empty, to
lands that were in fact occupied, but occupied by so-called “uncivilised
races”. These were races allegedly not socially or politically organised.
In the words of the American international lawyer Christopher Joyner, speaking
in respect of the Americas:

Despite the manifest inhabitation of the land by Indian tribes, European
jurists conveniently reasoned that all Indians were barbarians and savages by
instinct, and therefore incapable of
self-government.[13]

Terra nullius, racism and destruction of a peoples’
sovereignty are intrinsically linked, in Australia as in other former colonies.
David Ritter will explore the consequences of terra nullius in
contemporary Australia in his paper entitled “The Return of the Zombie: Terra Nullius in 2004”.

Finally, no matter how these issues
are dealt with by domestic courts and governments, sovereignty is, essentially,
an international law concept. Since World War II, the rights of Indigenous
peoples have re-emerged for consideration, affirmation and development at the
international level. Sovereignty’s modern application to Indigenous
peoples under international law has largely centred around the Indigenous demand
that the international norm of self-determination should apply to them as to
other peoples. However, at the international level opposition to Indigenous
self-determination by some nations has been strong, apparently because of
concerns about fostering secessionism or separatism. Tom Calma’s paper
will bring us up to date with relevant developments in the UN system.

Thank you.

Tom Calma - Indigenous peoples and the right to self-determination

I would like to begin by acknowledging the Gadigal people of the Eora nation.

I pay my respects to the Gadigal as a Kungarakan man whose traditional
country lies far north from here, up near Darwin. I recognise the relationship
of the Gadigal to this land and their ongoing responsibilities to it, under the
watch of their ancestors. In other words, I recognise the ongoing dimensions of
the sovereignty of the Gadigal to this country.

On behalf of the Human Rights and Equal Opportunity Commission, thank you for
joining us here today at this seminar which we are co-hosting with the
International Law Association (ILA). This is the third seminar HREOC has
co-hosted with the ILA on international law dimensions of issues facing
Aboriginal and Torres Strait Islander peoples. These seminars have come about
due to the efforts of Greg Marks of the ILA, with the eager support of the ILA's
President, Margaret Brewster. So thank you to both Greg and Margaret for your
efforts, and for your introductory comments this afternoon. I would also like to
thank David Ritter who has flown over from Perth to join the discussion today.

This afternoon I am going to talk to you about the importance of the letter
'S' in international law. Indigenous peoples - or Indigenous people as
governments prefer to refer to us - have been fighting for the letter 'S' in the
United Nations for at least thirty years. We have been fighting for recognition
in international law that we are a 'peoples'. As we know, one of the fundamental
principles of international law is set out in Article 1 of the two international
covenants (on civil and political, and economic, social and cultural rights).
Article 1 states:

All peoples have the right to self-determination. By virtue of that
right they may freely determine their political status and freely pursue their
economic, social and cultural development.

Throughout the history of the United Nations, governments have been very
careful to ensure that they have not used the words 'Indigenous' and 'peoples'
next to each other in a sentence. So for example, the three main Indigenous
mechanisms in the UN are called:

  • The Working Group on Indigenous Populations
  • The Permanent Forum on Indigenous Issues; and
  • The Special Rapporteur on the situation of human rights and fundamental
    freedoms of indigenous people.

We are also currently in the
International Decade for the World's Indigenous People.

On the odd occasion where the term 'Indigenous peoples' has been used, it has
been qualified on the basis that the status of Indigenous people remains subject
to negotiation. As an example, Article 1(3) of the International Labour
Organisation's Convention 169 concerning Indigenous and Tribal Peoples in
Independent Countries
states that:

The use of the term 'peoples' in this Convention shall not be construed as
having any implications as regards the rights which may attach to the term under
international law.

Another such example is the Durban Declaration of the World Conference
Against Racism from 2001. What governments are doing when they make such a
qualification, or when they refuse to use the phrase 'Indigenous peoples' at
all, is deferring to the ultimate settlement of this issue through another of
the processes of the United Nations.

This is through the working group established by the Commission on Human
Rights in 1995 and which is rather inelegantly known as the Ad-hoc open-ended
inter-sessional working group on the Draft Declaration on the Rights of
Indigenous Peoples. I will refer to it as the CHR Working Group for the
remainder of this discussion. For ten years now, this working group has been
negotiating a Declaration on the Rights of Indigenous Peoples.

There are two key dates relating to the Draft Declaration that will occur
later this year. First, the CHR Working Group will meet for the third week of
its tenth session from 29 November to 3 December. At the end of that week, the
CHR Working Group will have deliberated for 10 years. Under Commission of Human
Rights rules, there will be a review of the Working Group's operations, and a
decision will need to be taken next March or April to decide whether to extend
the working group any further.

The second key date is that the International Decade for the World's
Indigenous People will end on Human Rights Day, December 10, this year.
One of the key objectives of this decade is the adoption of the Draft
Declaration on the Rights of Indigenous Peoples and the further elaboration of
international standards on Indigenous rights. As you may know, to date through
the CHR Working Group process a total of 2 out of 45 articles of the Draft
Declaration have reached consensus and have been provisionally adopted. It is
clear that when these two key dates come around there will not be a fully agreed
and finalised Declaration.

What I want to talk about here is the nature of the debate in this working
group on the application of self-determination to Indigenous peoples and some
highly significant developments in the Working Group during its two most recent
sessions in September 2003 and September 2004 on this issue.

I must confess that coming into the role of Social Justice Commissioner I had
heard very negative opinions about the Working Group process. Of course,
agreement on only 2 of 45 articles in 10 years with the most recent date of
agreement on text being 1996 certainly doesn't leave a favourable impression.
But I was quite surprised when I attended the latest session of the Working
Group this September at the pace of the deliberations and the atmosphere of
goodwill that exists in the negotiations. In light of the challenges that remain
for this Declaration, I think it is worth me saying at this point that the
negotiations are being conducted in good faith and there remains much hope that
a Declaration will eventually come into existence.

So I am not describing to you a debate that has no chance of
resolution. In fact, as you will see shortly, the debate is currently delicately
poised and may even be heading towards consensus on the issue of recognition of
a right to self-determination for Indigenous peoples. Before discussing why this
is so, however, I will provide a brief overview of the history of the Draft
Declaration. A full description of this history can be found in the Social
Justice Report 2002
.

Indigenous peoples' have sought the recognition of their rights in
international forums going back to the League of Nations in the 1920s. There are
two aspects to this struggle. First, recognition of the place of Indigenous
peoples at the negotiating table as sovereign peoples, or the right to
participate. And second, the elaboration of the distinct rights of Indigenous
peoples, based on the recognition and protection of distinct Indigenous cultures
and societies.

It was not until 1982, however, that Indigenous peoples have been able to
access United Nations processes with any consistency or in numbers. This was
made possible through the establishment of the Working Group on Indigenous
Populations (or WGIP). For twenty plus years, the WGIP has fulfilled two
functions. It has reviewed developments in the recognition of Indigenous human
rights, something which it does on a thematic basis each year. And secondly, it
gives attention to the evolution of standards concerning the rights of
Indigenous peoples.

It is under this second function of the WGIP that the Draft Declaration on
the Rights of Indigenous Peoples emerged between 1985 and 1993. The five
independent experts who make up the Working Group engaged in debate with
Indigenous organisations and governments in its annual sessions and
progressively developed a Declaration setting out specific issues that they felt
required recognition in order to protect the distinct cultures of Indigenous
peoples. The Declaration recognises the distinct cultural attributes of
Indigenous peoples and the necessity for these to be protected in order for
Indigenous peoples to be able to live freely and in equality with other segments
of society. This involved recognition of:

  • the spiritual connection of Indigenous peoples to their traditional lands
    and resources;
  • the specific vulnerabilities of Indigenous peoples, including through
    economic marginalisation and in times of war and conflict;
  • the particular vulnerabilities of Indigenous women and children; and
  • the need for recognition of the continuing existence of distinct systems of
    law and governance.

In 1993, the WGIP concluded its work on the
Declaration when it inserted into Article 3 recognition that Indigenous peoples
have the right to self-determination. The WGIP's Declaration was then adopted by
consensus by the Sub-Commission on the Protection and Promotion of Human Rights
in 1994. Both the Working Group on Indigenous Populations and the Sub-Commission
are, of course, independent expert bodies in the UN human rights system.

In 1995, the Commission on Human Rights established the CHR Working Group to
elaborate a Declaration on the Rights of Indigenous Peoples. As a working group
of the CHR, this process is a political one involving States or governments.
Indigenous peoples can participate in the working group in informal session, but
ultimately the process is controlled by the member states. At times there have
been heated debates in the Working Group on the adequacy of the participation of
Indigenous peoples. And this is an issue that has not been fully resolved.

The specific mandate of the CHR Working Group is to negotiate a Declaration
based on the draft prepared by the WGIP and endorsed by the Sub-Commission. So
the negotiations take as their basis text that was negotiated by States and
Indigenous peoples under the guidance and ultimate decision of the independent
experts of the WGIP
The issue of self-determination lies at the core of the
Declaration. There are a number of provisions in the Declaration which relate to
this principle. The key ones for explaining the debates are as follows:

Preambular paragraph 14 affirms the fundamental importance of the right of
self-determination of all peoples, and preambular paragraph 15 notes that this
Declaration may not be used to deny any peoples their right of
self-determination. Article 3 then outlines the right of self-determination in
the language of the international covenants which I read earlier. Article 31
gives examples of what self-determination might entail and Article 45 ensures
that the right of self-determination, and the other rights recognised in the
Declaration, are to be applied consistently with the Charter of the United
Nations. There are other articles of the Draft Declaration that relate to
self-determination, but it is these ones that debates in the CHR Working Group
have largely focused on.

It is fair to say that resolving the issue of Indigenous self-determination
is the main challenge faced by the CHR Working Group. During the debates on
self-determination in the working group to date, very few States have indicated
that they can accept the current wording of the Draft Declaration. Most
countries have sought to amend the text to safeguard their territorial integrity
and political unity from separatist Indigenous movements. The Australian
government position until this year was based in concern about separatism and
secession, but went further as it opposed the use of the term
'self-determination' at all, and instead sought the Declaration to refer to a
right to 'self-empowerment' or 'self-management'.

The United States of America has sought to further limit the application of
self-determination to Indigenous peoples to what is termed 'internal'
dimensions. And then a few countries, such as the United Kingdom and France,
have expressed concern about ensuring that recognition of the rights of
Indigenous peoples - including to self-determination - does not threaten the
universality of human rights or provide special status to Indigenous peoples.

Indigenous peoples have responded to these concerns by stating that nothing
less than the recognition of a full right of self-determination is acceptable.
They have argued that the international covenants provide that 'all peoples'
have the right of self-determination and that this applies without
discrimination. Accordingly, the CHR Working Group needs to ensure that it does
not restrict Indigenous peoples to enjoyment of a lesser, and discriminatory,
standard of international law. The USA's position of internal self-determination
is rejected outright by Indigenous peoples. Indigenous people also note that
there are a number of independent studies through the Sub-Commission, as well as
findings and commentaries by the human rights treaty committees which state that
Indigenous peoples do constitute 'a peoples' for the purposes of article 1 of
the international covenants. Accordingly, they argue that the existence of the
right of self-determination for Indigenous peoples does not depend on its
recognition in the Draft Declaration. This is another reason why Indigenous
peoples are concerned that any restrictions on the right would be
discriminatory.

This is a shorthand description of an extremely complex debate but it is
these issues that have dominated the debates on self-determination in the Draft
Declaration process. These debates have been very extensive in the 2003 and 2004
sessions of the CHR Working Group, and we are starting to see a convergence of
the views of States and Indigenous peoples on the principle. The central issue
here is the territorial integrity and secession argument. So in order to comment
on this, let me describe to you the very significant developments on this issue
in the 2003 and 2004 sessions of the Working Group.

The 2003 session of the Working Group focused on a proposal by the Nordic
countries - Norway, Denmark, Finland, Iceland and Sweden - relating to
self-determination. Part of this proposal involved amending the text of the
Draft Declaration to address the concerns of States as well as those of
Indigenous peoples. That proposal involved maintaining Article 3 of the
Declaration in its original form and amending preambular paragraph 15 of the
Declaration to include language from the 1970 Friendly Relations
Declaration
which would protect against the dismemberment of the territorial
integrity or political unity of a State.

The American Indian Law Alliance (or AILA) conducted a detailed analysis of
this proposal in which they concluded that it may inadvertently create a
discriminatory standard for Indigenous peoples by subjecting the entire draft
Declaration to the principle of territorial integrity. As a consequence, they
proposed an alternative amendment to preambular paragraph 15 as well as
preambular paragraph 14. This alternative text would, in their words, 'ensure a
coherent approach that is consistent with international law' and 'meet the basic
objectives of the Nordic States' proposal'. They stated:

We are prepared to consider an amendment to the preamble to (the Declaration)
so as to acknowledge that international law principles applicable to the
right of self-determination may be freely invoked in the future. However, it
would be misleading and unjust to highlight in (the Declaration) solely the
principle of territorial integrity. This could erroneously imply that the
principle of territorial integrity has some special status or significance above
a host of other international law principles -such as democracy, rule of law,
respect for human rights, non-discrimination and justice - which all apply in
the context of
self-determination.[14]

Accordingly, AILA proposed the following amended text for pp14 and 15. The
amendment to pp14 would ensure the equal application of the right of
self-determination to Indigenous peoples, and pp15 would refocus the text from
explicit guarantees of territorial integrity to a more general, and broader,
application of international law standards. The AILA proposal is a critical
intervention in the CHR Working Group. This is because it is the first time that
an Indigenous organisation has proposed a substantive change to the text of the
Draft Declaration. The importance of this was acknowledged by States and has
been a catalyst for the debate in the 2003 and 2004 sessions.

Prior to the 2004 session of the Working Group, the Nordic States were joined
by New Zealand and Switzerland in a new proposal for the Declaration. This built
on the debates in the 2003 session and proposed new language for a number of
articles, including those relating to self-determination. This new language on
self-determination takes into account the AILA proposal from 2003 by building on
their proposal for preambular paragraph
15.[15] It also takes up the
concerns of States by explicitly incorporating into the body of the Declaration,
in Article 3, language relating to territorial integrity.

This new language formed the starting point for discussion in the 2004
session of the Working Group. The new language in Article 3 reflects the
Friendly Relations Declaration and is also drawn directly from the Vienna
Declaration of the World Conference on Human Rights in 1993. As noted, it
introduces to the draft Declaration explicit language on territorial integrity.
Prior to this language being considered in the most recent session of the
Working Group, Indigenous peoples gave consideration to alternative language on
self-determination. This resulted in a further new proposal, which was put
forward on behalf of most Indigenous representatives attending the meeting.

This proposal sought to build on the AILA proposal from last year by
proposing a slightly reworded version of preambular paragraph 15, retaining
Article 3 in its original form (that is, without explicit language on
territorial integrity) and by adding a new preambular paragraph which would
provide positive recognition to other principles of international law that are
relevant to self-determination and which had been referred to by AILA in their
submissions in the 2003 meeting. In introducing this proposal, Indigenous people
provided an explanatory note as to the intention of the amendments. It reads in
part, that the purposes of the amendments, which are to be read together,
includes:

  • to achieve consensus among States and Indigenous peoples, by accommodating
    both State and Indigenous concerns in regard to the fundamental human right of
    self-determination;
  • to retain the original language of article 3... consistent with principles
    of equality and non-discrimination;
  • to affirm that, to the extent provided in international law, States will
    continue to have the freedom to invoke any principle of international law,
    including the principle of territorial integrity, in relation to the exercise of
    self-determination;
  • to avoid any explicit reference to the principle of territorial integrity in
    the (Declaration), in view of the growing abuses of this principle in different
    regions of the world; and
  • to encourage harmonious and cooperative relations between States and
    Indigenous peoples, based on universal and mutually reinforcing principles and
    values of international law.[16]

Again, the introduction of such a proposal and an explanatory note
that explicitly details the interpretation of international law as it applies to
Indigenous peoples in relation to self-determination is highly significant. Now
there were a few other proposals made in the September 2004 meeting about
self-determination, but at the end of the day the debate has reached a point
where we are moving between this proposal of the majority of Indigenous
delegations and that of the Nordic countries. The only other substantive
proposal which differs from these is a proposal by another Indigenous delegation
to include the entirety of Article 1 of the international covenants in Article 3
of the Declaration.

I want to conclude by making some comments about where the debate is at, but
before doing that I want to provide you with one more piece of detail about the
debate. A very significant development from an Australian perspective was the
change in our government's position during the debates at this session. In
previous sessions, our government had argued against the principle of
self-determination. This year they dropped their opposition to the use of this
term, with the proviso that it was appropriately qualified with protections of
territorial integrity. The Nordic, New Zealand and Swiss proposal in this year's
meeting addresses that concern and so the government were prepared to accept
this text or a slightly modified version of
it.[17]

So where does this leave us and more importantly what does it mean?

There has been a significant narrowing in the lines of dispute about the
right of self-determination as it applies to Indigenous peoples
. Most
participants in the CHR Working Group, through the positions they have adopted,
impliedly or explicitly acknowledge that Indigenous peoples are capable of being
recognised as possessing a right of self-determination. These debates have, in
my view, moved from being focused on whether Indigenous peoples have a right to
self-determination to now focusing on the nature and extent of
Indigenous peoples' right to self-determination.

This is not to say that it is not still contentious. Recognition of
self-determination is a vital step in a legal process of decolonising the
relationship of Indigenous peoples and States. Some Indigenous peoples see the
attempts to impose qualifications of territorial integrity as leading instead to
their re-colonisation or as limiting recognition of their sovereign
rights as Indigenous nations.

When the CHR Working Group resumes later this month it will focus on the
issue of self-determination. It is likely that the debate will come down to how
the principle of territorial integrity is 'captured' by the Declaration. The
proposal of Indigenous peoples, with no explicit reference, comes with a clear
understanding of how international law operates and how it includes territorial
integrity considerations. Some States showed great interest in seeing the
explanatory note jointly agreed by most of the Indigenous delegations
incorporated into the record of the meeting, so that it may form part of the
interpretative materials of the Declaration (or the travaux
préparatoires
) once it is concluded.

The Social Justice Commissioner's Office, along with Australian Indigenous
organisations, has endorsed this proposal. It has clear logic and a guarantee of
the application of the territorial integrity principle alongside other
principles of international law
through the provisions of preambular
paragraph 15 as well as Article 45 (which I only briefly mentioned earlier). In
other words, despite the absence of explicit language on territorial integrity,
the draft Declaration has a double guarantee of the application of this
principle already. But it is a guarantee that is appropriately weighted
alongside other, equally important, principles of international law.

What remains to be seen is whether this logic is enough for those States who
remain concerned to ensure that there is absolutely no misunderstanding about
the effect on their political unity and territorial integrity of the recognition
of the right of self-determination for Indigenous peoples. I would argue that
more explicit text is unnecessary from an international law perspective. But as
Indigenous peoples have known and stated for a long time, this process is one
that is primarily about politics and not law. And I think it is a politics of
decolonisation - a new version of a process that to date has not been applied to
Indigenous peoples.

This is the context in which the upcoming negotiations on the Draft
Declaration will take place.

Thank you.

Postscript

The CHR Working Group met for its eleventh
session in November–December 2005 and
January–February 2006. By the end of this session
consensus had been reached on approximately
two thirds of the text of the Declaration.
Negotiations continued on self-determination,
land and resources, the general provisions and
other issues.

The Chairperson of the Working Group
submitted his report on the Declaration to the
Commission on Human Rights in March 2006.
In his report, the Chairperson annexed a revised
Chairperson’s text for the Declaration. This
text includes all language agreed during the
negotiation sessions, as well as the Chairperson’s
own proposals on those remaining articles that
were still pending, based on the discussions held
during the sessions.

In relation to self-determination, the Chairperson’s
text maintains Article 3 unamended; moves
Article 31 so that it is placed immediately
following Article 3 (this identifies self-government
and autonomy as a special form of the exercise of
self-determination); and preambular paragraphs
14, 15, 15bis and 16 continue to provide
interpretative content on self-determination.
The Chairperson states in his report to the CHR
that he hopes that his Chairperson’s text ‘would
be considered as a final compromise text’.66
The Chairperson’s text was then considered at the
inaugural session of the Human Rights Council.
Indigenous organisations and numerous States
pushed for the adoption of the Declaration. On
29 June 2006, this text was adopted by a vote of
30 for, 2 against, 12 abstentions, with 3 states
absent.

The Human Rights Council’s Declaration on
the Rights of Indigenous Peoples will now be
considered by the United Nations General
Assembly in its 61st session in the latter part of
2006. With the likely passage of the Declaration
through the General Assembly, the debate on the
entitlement of Indigenous peoples to the letter ‘S’
will be confirmed once and for all.


David
Ritter
- The Return of the Zombie: Terra Nullius in 2004

Prologue

Thank you to the Human Rights and Equal Opportunity
Commission for the support in travelling from Western Australia, to the
International Law Association for the invitation to talk and to my employer, the
Yamatji Barna Baba Maaja Aboriginal Corporation native title representative body
for permitting me to accept.

Introduction

The doctrine of terra nullius is once again a matter of public intellectual debate, with
recent contributions appearing in The Financial
Review
,[18] The
Bulletin
,[19] The
Australian
,[20] Quadrant,
Michael Duffy’s Counterpoint[21] and
Geraldine Doogue’s Sunday
Profile[22]
on Radio National.
In this paper I discuss this sudden proliferation of noise about terra
nullius
and what it might signify. In order to address the present though, I
first want to return to very different days, specifically ten years back in time
in November, 1994...

A decade ago I completed my first writing about
native title, a critical analysis of the so-called ‘rejection of terra
nullius
’ in Mabo.[23] I was motivated to
write by what seemed to be an extraordinary disjunction: numerous commentators
were saying that it was ‘the rejection of terra nullius’ by
the High Court in Mabo that had permitted the recognition of native title
in Australia: it was a description in the nature of an accepted
shorthand.[24] Yet, prior to Mabo, there was no Australian court case at all which stood as authority
for the proposition that the application of the ‘doctrine of terra
nullius
’ prevented native title in Australia from being recognised. In
the only prior Australian case on point, Milirrpum v Nabalco which was
decided in 1971, the single judge of the Supreme Court of the Northern Territory
who heard the matter decided that native title had ‘never formed, part of
the law of any part of
Australia,’[25] but he did not
rely on any so-called doctrine of terra
nullius
.[26]

Legal
historian Henry Reynolds was, even before Mabo, perhaps the most famous
and forceful exponent of the idea that terra nullius stood as a barrier
to the recognition of native title in Australia. According to Reynolds in the
vastly influential 1987 work, The Law of the Land, Australia had been
annexed by the Crown as apparently terra nullius (a land belonging to
no-one) because the indigenous inhabitants seemed ‘without political
organisation, recognisable systems of authority or legal
codes.’[27] Reynolds
concluded that, if the Courts would accept that Australia was not terra
nullius
at colonisation, then there would be no choice but to recognise the
existence of native title under Australian common law. Reynolds felt that, with
terra nullius out of the way,’ prior Aboriginal occupancy
could become ‘the starting point for legal
argument.’[28] The subsequent
apparent rejection of terra nullius and the recognition of native title
in Mabo seemed to verify Reynolds’ ideas.

Ten years ago my
conclusion was that the High Court’s repudiation of the doctrine of terra nullius was doctrinally immaterial to the result in the Mabo decision. No obscure international law maxim had ever stood as a barrier to the
recognition of native title in Australia. The more prosaic truth was that prior
to Mabo, the High Court had simply never been asked to decide whether
Australian law recognised Indigenous titles to land. In Mabo, in the
absence of any binding Australian precedent, the Court simply considered the
state of affairs in every other nation in the common law world, –
including Canada, New Zealand and the United States - and in each case the
authority was clear: there was a doctrine of native title. The Mabo case
was no more than the cautious application of principle accepted throughout the
rest of the common law world and, as such, was both proper and quite
conservative.[29] I was emboldened
because other rather more distinguished commentators had reached the same
conclusions about the relevance of terra nullius, including the former
High Court Chief Justice Sir Harry Gibbs and Professor Richard Bartlett, one of
the leading academic authorities on native title in Australia, who had written
that:

The Mabo decision has been hailed as the rejection of the concept of
‘terra nullius’...But the concept is essentially irrelevant to
native title at common
law.[30]

In my view
there was a particular ideological explanation for why the High Court had
engaged in what appeared to be a purely rhetorical exercise. By 1992 it had
become clear as a matter of acknowledged public fact that Aboriginal people did
own land in a proprietary sense according to their own traditional system of law
and custom and that, accordingly, the absence of legal recognition of native
title created a rupture between truth and power. By purporting to reject
terra nullius’ as the doctrine that had been responsible for
Aboriginal dispossession, the High Court was able to solve the discursive
crisis. While power in Australian society had shifted somewhat with the
recognition of native title under the common law, the broader ideological
consequence was the re-legitimation of the existing legal hierarchy. The Mabo decision said nothing about the legitimacy of British colonisation of the
Australian continent. Quite the reverse: it confirmed that Commonwealth
sovereignty was inviolate. In a simple legal-historical moral fable, once the
wicked and unjust doctrine of ‘terra nullius’ had been
dispelled, the legal and administrative arrangements which were assembled after
the fall could be defended as, by definition, fair and
just.[31]

The High
Court’s refutation of terra nullius was also seen as raising the
curtain for the new native title era which began on 1 January 1994 with the
commencement of operation of the (Commonwealth) Native Title Act. Upon
the commencement of the actual operation of the relevant legislation it could be
said that in practice there was ‘terra nullius no
more.’[32] The new debates
were about the detail of native title: what it was, who held it, what destroyed
it and the functioning of that labyrinth of process which the NTA ushered in to
existence. Pre-eminent among the debates that followed Mabo and the
enactment of the NTA, were the pastoral lease question (was native title
extinguished by pastoral leases?) and the tradition question (how
‘traditional’ did an Aboriginal society have to be to continue to be
acknowledged as native title holders?) Answers to these and other questions
have now been provided by the
Courts.[33] It is now abundantly
clear that the law of native title, though still an important process for the
recognition of traditional ownership, is less than the great emancipatory
revelation for all Indigenous people than some people once envisaged.

What role has ‘terra nullius’ played in the
post-Mabo environment? First, if one accepts for a moment the notion that
a doctrine of terra nullius did have to be rejected in order for Mabo to be decided as it was, then one would expect it to be irrelevant
to ongoing formal legal debates, perhaps like obsolete causes of action forming
no part in contemporary civil litigation. Similarly though, if one follows the
thesis that terra nullius was not pertinent to the question of whether
native title should be acknowledged under Australian law, then the expectation
would also be that it would be absent from current question. So how do we
account for the renewed interest in terra nullius?

The
‘rejection of terra nullius’ remains entrenched as a
convenient summary of the popular or collective understanding of the Mabo decision: a slogan to be invoked in speeches, newspaper articles and textbooks.
The familiar incantation is suggestive of course of far more than just the
purported ratio decidendi of the Mabo case. While no doctrine of terra nullius needed to be rejected in Mabo, the phrase was
never-the-less an evocative description of the discourses that operated to
legitimate the dispossession of Aboriginal people and permitted both the
exclusion of Aboriginal people from the rule of law, and, where Aboriginal
people were formally included within the colonial system, the manner in which
they were disadvantaged because of their non-conformity to the dominant culture.
One sometimes also sees reference to the ‘rejection of terra
nullius
’ used as shorthand to connote both the apparent victory of the
new Indigenous history over the silence of earlier historiography and the policy
triumph of self-determination over assimilation. The phrase also echoed Prime
Minister Paul Keating’s broad political rejection of Australia’s
imperialist, anglospheric and monarchist past, in favour of a republican,
multilateral and multicultural future. The ‘rejection of terra
nullius
’ was a phrase encapsulating the political and cultural
zeitgeist.

Times, though, have changed and the political use of the
metaphor of terra nullius has shifted with them. Where once Reynolds used
the term to create what Bain Attwood has recently called a ‘juridical
history or myth’ upon which the doctrine of native title could be
founded;[34] now the spectre of terra nullius is summoned to renounce the atavistic. By way of example,
in a contribution to Robert Manne’s 2003 anthology Whitewash, a
collection of essays on Windschuttle's book The Fabrication of Aboriginal
History
, entitled ‘Terra nullius Reborn’, Reynolds argued
that there:

is no doubt about Keith Windschuttle’s ambition. He seeks to bring the
concept of terra nullius back to life... He tells us that the notions of the
exclusive possession of territory and the defence of it either by law or force
‘were not part of the Aborigines’ mental universe.’ In short
the Tasmanians ‘did not own the land.’ The concept of property was
‘not part of their
culture.[35]

It is ambiguous
that rather than dealing with Windschuttle on the many and varied methodological
grounds that are available, Reynolds chooses to resort to the rhetorical
authority of the law. However, as a matter of law and logic, Windschuttle cannot
bring the concept of terra nullius back to life’ as Reynolds
alleges. An historian cannot retrospectively impose the operation of a legal
position on people and events of two hundred years ago. John Dawson in a
vitriolic attack in the July-August 2004 edition of Quadrant, suggested
that, rather than argue in methodological terms, Reynolds:

plants his banner on the battlements of the High Court, and with a cry of
‘Remember Mabo’ he rallies the faithful to his side in its
defence.[36]

Reynolds
is not the only eminent historian who has used the High Court as a redoubt in
the midst of the so-called history wars. Patricia Grimshaw, for example, engaged
in public debate with Keith Windschuttle, cited the ‘rejection of terra
nullius
’ in Mabo as one of the reasons why listeners should
discount the latter’s
arguments.[37] There is a clear
elision occurring between the doctrine and the discourse of terra nullius in these debates. Logically, it can only be the ‘discourse of terra
nullius
’ which Windschuttle is seeking to reinvigorate and which
Reynolds, Grimshaw and others are seeking to condemn, but confusion arises
because the phrase also purports to name a doctrine with legal affect.
References to the Mabo decision to support the arguments of historians
are also ambiguous in another way. Since when did historians cede jurisdiction
to the law courts? It is one of the enduring intellectual and cultural
consequences of the Mabo decision and the High Court’s doctrinally
unnecessary forays into history, that an implicit expectation developed that the
‘new Indigenous history’ which has been elaborated in Australia in
the last thirty years could be written up, accompanied by legal submissions and
taken to the Courts in the expectation that ‘justice’ (in accordance
with contemporary ideas of that expression) would be done.

The hearing
of an application for a determination of native title before the Federal Court
is no more than an adversarial proceeding concerning the existence of present
rights. A native title ‘claim’ is not made for recompense for past
loss, but for the recognition of current but inchoate rights. There is no
‘defence’ available to Aboriginal people that they would have been
able to prove native title but for past injustices. The role of the courts is
not to do ‘historical justice’ (whatever that means); the judicial
function is to decide a dispute between the parties on the basis of the limited
range of facts in evidence. Historians should not so willingly cede
jurisdiction over humanistic thinking to judicial
functionaries.[38]

Late last
year saw the publication of an expanded third edition of Reynolds’ 1987
book, The Law of the Land. Strangely, the new version does not respond
to any of the critics of the original work and the fresh writing is principally
confined to the development of the law of native title since Mabo.[39] Unsurprisingly,
Reynolds does not like what he has seen and reflecting bitterly on the way that
the Courts have interpreted native title he concludes that if ‘you can no
longer sustain terra nullius in the face of world opinion, an
‘inherently fragile’ native title is the next best
thing.’[40] A significant
critique of Reynolds’ new edition has come from fellow historian Bain
Attwood who has also highlighted the legal irrelevance of terra nullius to the Mabo decision in a sustained criticism of the Reynolds thesis in a
lengthy article published in The Financial
Review
.[41]

Curiously,
Attwood’s review found an almost immediate admirer in Christopher Pearson,
who wrote a scathing attack on Reynolds for The Weekend
Australian
.[42] It is implicit
in Pearson’s commentary that if Reynolds was wrong about terra
nullius
, then the High Court’s decision in Mabo must also have
been wrong and there should never have been any recognition of native title in
Australia:

the discipline of economic history is so unfashionable that we are not likely
any time soon to get a sober reckoning of what Mabo, Wik and the native title
legislation all told cost the gross national
product.[43]

Ironically though, in assuming that the rejection of terra
nullius
played a decisive role in Mabo, Pearson is actually accepting
Reynolds’ analysis of the case. The problem for both Pearson and Reynolds
is that, as I have argued, Mabo turned on the proper interpretation of
the common law, not the applicability of the international law notion of terra nullius.

Another of Pearson’s inspirations was
Tasmanian historian, Michael Connor who has written a series of articles
censuring Reynolds, and criticizing the numerous commentators who have adopted
the shorthand ‘rejection of terra nullius’ meaning of Mabo.[44] Connor too seems to
assume some determinative doctrinal significance of terra nullius to the
result in Mabo, though his principal concern is with what he perceives as
‘the fawning stupidity, cupidity of a generation’ of historians
‘and their willingness to believe the
unbelievable.’[45]

History is being written with both eyes on the law courts, and sometimes in
the pay of the parties arguing in the
courts.[46]

Connor is
correct in noting that historians are being retained as expert witnesses in
native title cases. However, historians like Reynolds whose legal-historical
arguments may quite properly influence the court in certain circumstances under
even the most conservative analysis of the extent to which judges may have
regard to history,[47] are not in
the nature of retained expert witnesses in native title proceedings, who are
subject to appropriately rigid Federal Court practice
directions.[48]

It is
evident that the recent legal-historical debates about the strength of
Reynolds’ scholarship evince ongoing dialogues over present controversies,
fought on the terrain of the past. Pearson is using historical debate as an
opportunity to try to reopen old political battles over native title, implying
that if Reynolds was wrong, there should be no native title. Connor dismisses
reliance on Reynolds’ theories not only on the basis of their inaccuracy,
but more broadly on ideological grounds as inapt for the present because
terra nullius serves a politics of
confrontation.’[49] Reynolds
himself continues to invoke terra nullius, though in the manner of Bob
Roberts singing, ‘the times they are a changing, they are a changing
back.’[50] In these arguments
over the meaning of ‘terra nullius’, whether at an historical
or historiographical level, what is occurring is a contest over the present.
Indeed, if the rhetorical ‘rejection of terra nullius’ became
a metaphor for the (then) Prime Minister’s broader denunciation of
Australia’s monocultural past, then the current assault on Reynolds from
the right is redolent of the wholesale destruction of the Keating agenda by the
government of John Howard.

Terra nullius was doctrinally
irrelevant to the recognition of native title in Mabo and is not germane
to the native title process now. Yet the inconsequence of terra nullius to the decision in Mabo, does not mean that the decision should have been
differently decided and no amount of reconsideration of the legal history of
Henry Reynolds can have the sensible implication as a matter of law, that the
recognition of native title should be reversed. Native title is well established
throughout the common law world and has now become assimilated within the
mainstream of Australian jurisprudence and legal administration. Nevertheless,
the politics of terra nullius, a doctrinally irrelevant phrase from a dead
language, remains animated. The ‘rejection of terra nullius
has its own shifting historiography; a context for ongoing debate about the
present.


[1] Jacobs, Ian, A History of
the Aboriginal Clans of Sydney’s Northern Beaches,
Northside Printing
2003, p 27.
[2] Markus, Julie, The Indomitable Miss Pink – A Life in Anthropology, UNSW Press,
2001.
[3] Marks, G C,
“Indigenous Peoples in International Law: The Significance of Francisco de
Vitoria and Bartolome de Las Casas” (1992) AYIL 13,
pp1-51.
[4] See Anaya, James,
Indigenous Peoples in International Law,
Oxford University Press,
2nd ed, pp26 -31.
[5] For example, Coe v Commonwealth (1979) 53 ALJR 403 and Walker v New
South Wales
(1994) 185 CLR
45.
[6] Western Australia &
o’rs v Ward & o’rs
[2002] HCA 28 (8 August 2002)
(‘Miriuwung
Gajerrong’)
[7] Members of
the Yorta Yorta Aboriginal Community v Victoria & o’rs
[2002] HCA
58 (12 December 2002) per Gleeson CJ, Gaudron, Gummow & Hayne JJ at
[44].
[8] Johnson v
McIntosh
, 21 US (8 Wheat) 543 (1823); Cherokee Nation v Georgia 30 US
1 (1831); Worcester v Georgia 6 Pet 515
(1832).
[9] Cohen, F, “The
Spanish Origins of Indian Rights in the Law of the United States” (1942)
31 Geo LJ1
[10] Vitoria, F,
De Indis and De Jure
Belli Relectiones , (1st ed np 1557)
reprinted in Scott JB (ed) Classics of International Law Series, 1964 (Bates J
trans)
[11] Wik Peoples v
Queensland
(1996) 187 CLR
1.
[12] National Indigenous
Working Group, Coexistence – Negotiation and Certainty, Canberra
April 1997.
[13] Joyner, C,
‘The Historical Status of American Indians Under International Law”,
11 The Indian Historian No 4, at
31.
[14] American Indian Law
Alliance, Nordic States' proposal on self-determination: Indigenous concerns
and a proposed alternative
, 15 September
2003.
[15] Note: The AILA
proposal was added to by Guatemala and Mexico during the 2003 session and
resulted in a revised version which has been referred to as the Guatemala / AILA
proposal. For the purposes of time I have not described the content of this
proposal, as is it is incorporated into subsequent proposals by Indigenous
Peoples and the Nordic countries in the 2004
session.
[16] Inuit Circumpolar Conference, Indigenous
peoples proposed amendments relating to the right of self-determination -
explanatory note
, 20 September 2004.
[17] The government indicated in
debates that it was prepared to move the second new proposed paragraph of
Article 3, which relates to legitimate action to realise the right of
self-determination, to the
Preamble.
[18] B. Attwood,
‘Myth, history and the law of the land’, The Australian Financial
Review
, Friday 11 June 2004, 6-8, 6 (this article appears expanded and
referenced as B. Attwood, ‘The Law of the Land or the law of the land?:
History, law and narrative in a settler society’, History Compass,
vol. 2, 2004).
[19] M. Connor,
‘Error Nullius Revisited’, Upholding the Constitution, 16,
ch.4
[20] M. Connor,
‘Dispel myth of terra nullius and historians are on shaky ground’, The Australian, 9 July 2004

[21] ‘Terra Nullius: Legal
Update’, Counterpoint, Monday 16 August 2004, presented by Michael Duffy, transcript available at http://www.abc.net.au/rn/talks/counterpoint/stories/s1179206.htm; and ‘Wedge Watch - Terra Nullius Contested’, Counterpoint, Monday 12 July 2004, presented by Michael Duffy; transcript available at http://www.abc.net.au/rn/talks/counterpoint/stories/s1153484.htm.

[22] ‘Bain Attwood and Terra Nullius’, Sunday Profile, presented by Geraldine
Doogue, Sunday, 25 July 2004, transcript available at
http://www.abc.net.au/sundayprofile/stories/s1160553.htm.
[23] Subsequently published as D. Ritter, ‘The Rejection of Terra Nullius in Mabo: A Critical Analysis’, Sydney Law Review, (1996)
18(1) 5.
[24] See for some
examples of many B. Mellor, ‘Nullius annulled’, Time
Australia
, 1992 7, 52; M. Lavarch, Native Title: Legislation with
Commentary
, Commonwealth Government Printing Service, Canberra, 1994, pp.iii
-iv; M. Mason, The Mabo Case-Native Title Ousts Terra Nullius,
Commonwealth Parliamentary Library, Canberra,
1992.
[25]Milirrpum v Nabalco
Ltd and the Commonwealth
(1971) 17 FLR 141,
p.245.
[26]The decision was also
widely and correctly criticised as wrong at law. See J. Hookey, ‘The Gove
Land Rights Case’, Federal Law Review, 1972 5; passim; Calder v Attorney General for British Columbia (1973) 34 DLR (3d) 145
(S.C), pp 200 and 218; ‘Aboriginal Title to Lands’, University of
Western Australia Law Review
, 1974 6, 282, p.283; K. McNeil, ‘A
Question of Title’, Monash University Law Review, 1990 16, 91,
p.93; M.C. Blumm and J. Malbon, ‘Aboriginal Title, the Common Law and
Federalism’ in M.P. Ellinghaus (ed), The Emergence of Australian
Law
, (Butterworths Sydney), 1989, p.141; R.H. Bartlett, ‘Aboriginal
Land Claims at Common Law’, University of Western Australia Law
Review
, 1983 15, 293, p.293; K. McNeil, Common Law Aboriginal Title,
(Oxford University Press Oxford),
1989.
[27] H. Reynolds, The
Law of the Land
, Penguin, Ringwood (Vic.), 1987,
p.12.
[28] Ibid,
p.174.
[29] For contemporary
defences of the decision, see M. Kirby, ‘In Defence of Mabo’ in M.
Goot and T. Rowse (eds), Make a Better Offer: The Politics of Mabo, Pluto
Press, Leichardt (N.S.W.), 1994; G. Nettheim, ‘Judicial Revolution or
Cautious Correction?’, University of New South Wales Law Journal,
1993 16, 1, S. Churches, ‘Mabo: A Flexible Sinew of the Common Law’, Brief, 1993 20, 8 and R.H. Bartlett, ‘Mabo: Another Triumph for the
Common Law’, Sydney Law Review, 1993 15,
178.
[30]R.H. Bartlett, R.H., The Mabo Decision, Butterworths, Sydney, 1993,
p.ix.
[31] A conclusion supported
by Bain Attwood. See B. Attwood, ‘Myth, history and the law of the
land’, The Australian Financial Review, Friday 11 June 2004, 6-8, 6
(this article appears expanded and referenced as B. Attwood, ‘The Law of
the Land or the law of the land?: History, law and narrative in a settler
society’, History Compass, vol. 2,
2004).
[32] To use the title of
an article of the time. See F. Brennan, Terra Nullius no more’, Eureka
Street
, 1992 2, 4.
[33] This
is not the place to cite the relevant authority. See generally R. Bartlett, Native Title in Australia, Butterworths, 2004 and M. Perry and S. Lloyd, Australian Native Title Law, Thompson, 2003.
[34] B. Attwood, ‘Myth,
history and the law of the land’, The Australian Financial Review,
Friday 11 June 2004, 6-8,
p.8.
[35] H. Reynolds,
‘Terra Nullius Reborn’ in R. Manne (ed), Whitewash: On Keith
Windschuttle’s Fabrication of Aboriginal History
, Black Inc,
Melbourne, 2003, p.
109.
[36] J. Dawson, ‘The Nullius Ideal: on “Terra Nullius
Reborn” by Henry Reynolds’, Quadrant, Vol XLVIII, No 7,
July-August 2004: available online at:
http://www.quadrant.org.au/php/archive_details_list.php?article_id=862.
[37] In the course of a debate with Windschuttle entitled ‘White Settlement:
Violent Conquest or Benign Colonisation?’, aired on 20 April 2003 on ABC
Radio National’s Hindsight program.
[38] See generally H.
Wootten, ‘Conflicting Imperatives: Pursuing Truth in the Courts’ in
I. McCalman and A. McGrath, Proof & Truth. The Humanist as Expert,
Australian Academy of the Humanities, Canberra, 2003.
[39] The Law of the
Land
, despite its influence, has always enjoyed a mixed reputation, even on
what might be described as the academic left. See for example V.Gollan’s
contribution to R.Lilley et al, ‘The Appropriation of Terra Nullius. A
Review Symposium’, Oceania, 1988-89, 59, 222-231, p 229; V.
Kerruish, ‘Reynolds, Thompson and the Rule of Law’, Law in
Context
, 1989 7, 87 and A. Curthoys, ‘Rewriting Australian History:
Including Aboriginal History’, Arena, 62, 1983,
96-110.
[40] H. Reynolds, The
Law of the Land
, Penguin Ringwood (Vic.), 3rd ed, 2003, p.235.
[41] B. Attwood, ‘Myth,
history and the law of the land’, The Australian Financial Review,
Friday 11 June 2004, 6-8, 6 (this article appears expanded and referenced as B.
Attwood, ‘The Law of the Land or the law of the land?: History, law and
narrative in a settler society’, History Compass, vol. 2,
2004).
[42] C. Pearson,
‘Shifting War on Terra Nullius’, Weekend Australian, June
26-27, 2004, p.18.
[43] C.
Pearson, ‘Shifting War on Terra Nullius’, Weekend Australian,
June 26-27, 2004, p.18.
[44] M.
Connor, ‘Dispel myth of Terra Nullius and Historians are on Shaky
Ground’, The Australian, 9 July 2004; M. Connor, ‘Error
Nullius’, Bulletin, 28 August, 2003 and M. Connor, ‘Error
Nullius Revisited’, Upholding the Constitution: Papers of the Samuel
Griffith Society
, 16(4).
[45] M. Connor, ‘Error Nullius Revisited’, Upholding the Constitution:
Papers of the Samuel Griffith Society
, 16(4),
p.9.
[46] M. Connor, ‘Error
Nullius Revisited’, Upholding the Constitution: Papers of the Samuel
Griffith Society
, 16(4), p.
8.
[47] See for example Communist Party Case (1950-51) 83 CLR 1 and Woods v Multisport
Holdings Pty Ltd
[2002] HCA (7 March 2002), per McHugh J and Callinan
J.
[48] See Federal Court of
Australia, ‘Guidelines for Expert Witnesses in Proceedings in the
Federal Court of Australia’, issued by Black CJ on 19 March 2004. Reynolds was
specifically retained in relation to the Wik litigation:
see
H. Reynolds, ‘Native
title and Pastoral Leases’, Aboriginal Law Bulletin, 3 (85), Oct
1996, 14-5 and H. Reynolds and J. Dalziel, ‘Aborigines, Pastoral Leases
and Promises by the Crown: Imperial and Colonial Policy, 1826-1855’, University of New South Wales Law Journal, 1996 19, 315. For a critical
review of the Court’s favourable reception of Reynolds in the Wik case see J. Fulcher, ‘Sui Generis History? The use of history in
Wik’ in G. Hiley (ed), The Wik Case – Issues and
Implications
, Sydney, Butterworths, 1997 and J. Fulcher, ‘The Wik Judgment, Pastoral Leases and Colonial Office Policy and Intention in
NSW in the 1840s’, Australian Journal of Legal History, 1998 4,
33-56.
[49] M. Connor,
‘Error Nullius Revisited’, Upholding the Constitution: Papers of
the Samuel Griffith Society
, 16(4),
p.3.
[50] Bob Roberts,
written and directed by Tim Robbins, 1992. The plot involves a corrupt
rightwing folksinger running a crooked election campaign while an independent
muck-raking reporter tries to stop him. One of Bob Roberts’ more
memorable choruses is that ‘the times they are a changing, they are a
changing back.’