Rethinking Mabo as a clash of constitutional languages by Stephen William Robson B.A. (Hons) This thesis is presented for the degree of Doctor of Philosophy of Murdoch University, 2006 2 I declare that this thesis is my own account of my research and contains as its main content work which has not previously been submitted for a degree at any tertiary education institution. Stephen William Robson 3 4 Abstract The 1992 decision of the High Court of Australia to uphold the claim of the Meriam people was welcomed as beginning a new era where the unique status of Aboriginal and Torres Strait Islander peoples would gain recognition. Intense debate and activity ensued with federal parliament adopting a legislative framework to recognise native title and the Council for Aboriginal Reconciliation considering its broader constitutional implications. Fourteen years on though much of the promise of Mabo lies unfulfilled. This thesis draws upon the work of Canadian philosopher James Tully. He writes of contemporary constitutionalism in Western society and its inability to give more than superficial recognition to cultural difference. He locates the problem as lying with the dominant language of modern constitutionalism. This language provides for two main forms of recognition: the equality of self- governing nation states and the equality of individual citizens. Tully locates a way forward through the presence of another constitutional language. Common constitutionalism has enabled an accommodation of cultural differences guided by its three conventions of mutual recognition, continuity, and consent. Moreover, it is beneficial to analysing other studies about the ability of common law to recognise the claims of Indigenous people. Tully’s contribution is applied to an examination of the Mabo events in a way that takes account of Australia’s constitutional traditions. The aim is to clarify the languages employed by the representatives of Australia’s institutions of governance and whether this places obstacles in the way of recognising Aboriginal and Torres Strait Islander peoples. The inquiry considers the events prior to the High Court’s decision, the Keating government’s response, and the Howard Government’s native title changes. Other chapters examine the constitutional language used by Aboriginal and Torres Strait Islander peoples and the significance of the Council of Aboriginal Reconciliation. The central argument of this study is that once it is accepted that the claims of Indigenous people in Australia are constitutional, it becomes possible to appreciate that these were largely voiced through the language of human rights and common constitutionalism. In contrast, when the claims were considered by the High Court and federal parliament significant aspects were articulated through the modern constitutional language. Another thread running through the events was a desire to confront and overcome the influence of the language of White Australia. The thesis concludes by considering the significance of the findings for a settlement between Aboriginal and Torres Strait Islander peoples and other Australians. 5 6 Contents 1 Mabo and the claims for recognition The beginnings 15 The claims 17 Focus 21 Claims and methods 23 The argument unfolds 25 2 The politics of cultural recognition and modern 33 constitutionalism The politics of cultural recognition 34 Difficulties in accommodation the claims 38 Features excluding cultural diversity 42 Connecting theory to practice 53 3 Constitutional languages and cultural diversity 57 A different approach 59 Respecting cultural diversity 61 Three features of cultures 65 Hidden constitutions 70 The ancient constitution of England 71 Reasoning 75 Casuistry 80 Wittgenstein 84 Application to constitutionalism 86 Contemporary constitutionalism 94 Conclusions 100 7 4 Common constitutionalism and the claims of 105 Indigenous peoples The conventions of common constitutionalism 107 Consent 110 Continuity 113 The conventions and common law 116 Common law not uniform 119 Coke and colonialism 121 Distinction between common law and common 122 constitutionalism Human rights and Indigenous people 124 Conclusions 127 5 Australia’s European and Indigenous constitutional 131 traditions Constitutional traditions 132 Indigenous traditions 136 Treaty constitutionalism 138 Mutual recognition 140 Conclusions 142 6 The languages before Mabo 145 Rights of acquisition dependent upon consent 148 The presumption of an empty land 149 Support for continuity of native title 152 Federation and indigenous peoples 154 The campaign for federal power 159 The Yirrkala land case 165 Aboriginal Land Rights Commission 168 Racial discrimination legislation 171 Coe v Commonwealth 173 Retreating from injustice 176 Mabo protected by RDA 177 Queensland Supreme Court – gains and losses 184 Conclusions 187 8 7 The High Court’s Mabo decision 191 Attitudes towards original inhabitants 194 Sovereignty 197 Settlement and occupation 200 Radical and beneficial titles 204 Pre-existing interests 208 Claims for recognition 213 The impact of legislation and grants upon native title 226 A particular claim, but general rules 229 Absence of consent 231 Fiduciary duty 234 Racial Discrimination 238 Consequences of wrong policy 240 Compensation 244 Conclusions 246 8 The Keating government’s response to Mabo 253 The significance of Mabo 257 Response to the Mabo decision 260 Native title legislation 263 Recognition and ‘land management’ 264 The RDA and past grants 266 Consent 269 Discussion Paper response 272 Compensation 275 Future grants 278 COAG and the parliamentary strategy 281 COAG and Aboriginal and Torres Strait Islander peoples 288 Party attitudes to Mabo The High Court decision 292 Federal/state relations 296 The draft legislation 297 Future acts 299 Consent and the right to negotiate 300 Party attitudes to the Native Title Bill Recognition 303 The right to negotiate 307 Conclusions 310 9 9 High Court developments and the Howard government 313 reaction WA High Court challenge 317 The Wik decision 323 The reactions to Wik Political and legal factors 327 The Coalition’s initial proposals 332 Reactions and responses to Wik 333 Ten Point Plan 336 Party attitudes to the legislation Recognition 340 Right to negotiate 347 Parliamentary debate 355 Indigenous influence 360 Outcome 362 Conclusions 366 10 Aboriginal and Torres Strait Islander peoples 369 and Mabo ATSIC 374 Aboriginal Peace Plan 378 Eva Valley Statement 381 Comments by Indigenous leaders Noel Pearson 383 Patrick Dodson 386 Michael Dodson 389 Larissa Behrendt 390 Extinguishment and recognition 392 Conclusions 395 11 The significance of the Council for Aboriginal 397 Reconciliation The Council and mutual recognition 399 The Council’s post-Mabo submission 401 Parliament and reconciliation 402 The final report 405 Howard government response 408 Conclusions 413 10 12 Constitutional languages and Australia's first peoples 415 Application to Australia 418 Constitutionalism and Indigenous peoples 422 Questions 431 Theory and practice 433 Bibliography 437 11 12 Acknowledgements In acknowledging those who have assisted in the creation of this project, chronologically it commenced with the selection of the topic. Its seeds were planted by two conversations at Murdoch University. Sometime before my Honours year, Janice Dudley advised me to broaden my interests beyond environmental issues and eventually I began to examine the native title debate. The other conversation occurred when Peta Bowden supervised a component of my Honours study and introduced me to James Tully’s Strange Multiplicity. The reading of it had an immediate resonance and from this book, the comparisons with Australia’s circumstances originate. To my supervisor Ian Barns I owe a very special thanks. He has been there from the beginning when the thesis topic was a mere germ of an idea. His thoughtful questioning, engagement and empathy has been invaluable in its fruition. I also need to thank those who provided valuable comments along the way. Christabel Chamarette specifically commented on the parliamentary debate, highlighting many of the issues of concern. Janice Dudley drew my attention to the contrast between constitutionalism in Canada and Australia. Gary Meyers provided invaluable insight into the constitutional implications of native title. Teresa Szunejko, Veronica Vann and Juanita Doorey were all involved with proof-reading, with Juanita also reading an early draft on the methodology. Frank Noakes was kind enough to undertake a final edit to try and make it ‘less clunky’. To those at the WA Office of the Department of Health and Ageing, I am grateful that my academic needs were able to be accommodated. I was able to take two extensive periods of leave without pay from a job in the Office of Aboriginal and Torres Strait Islander Health and concentrate on full-time study. Together with the assistance of a scholarship from Murdoch University, this helped push any financial concerns into the background and I was able to concentrate on writing. I need to thank the caring friends who intruded into what at times felt like an eternal hermit-like existence with an inquiring telephone call and work colleagues who provided social contact after intense days in front of the home computer. In March 2003 in his own way my father had cause to remind me that there is more to life than completing a PhD. Lastly though, I need to thank Julia Lester and Jo Mason for they were able to continually touch my soul and engender an atmosphere where the words