IDENTIFYING A LEGAL FRAMEWORK FOR A TREATY BETWEEN AUSTRALIA’S
FIRST PEOPLES AND OTHERS
Professor Asmi Wood* & Christie M. Gardiner**
I INTRODUCTION
For several decades, various political commitments have been made to develop a legal apparatus in Australia which recognises the agency of Indigenous people1 and which facilitates their autonomy and self-determination. These commitments have rarely yielded outcomes that sustainably advance the short to long term interests of Indigenous peoples, and often fail to address the inherent relationship injustice that exists between Indigenous peoples and the commonwealth. For instance, in June 1988, then Australian Prime Minister Mr R.J. Hawke promised a historic treaty with the Aboriginal people at the Barunga festival in the Northern
Territory.2 The resulting Barunga Statement, called for a ‘Treaty recognising our [Indigenous]
* Asmi Wood is the Director of the National Centre for Indigenous Studies (NCIS) at the Australian National University and teaches at the Australian National University College of Law. ** Christie Gardiner is a Lecturer at the Australian National University College of Law. 1 ‘Aboriginal and Torres Strait Islander’ peoples is the commonly used term in Australian to describe its first/indigenous peoples. These are clearly colonial terms (ie, terminology variously used by the settler state collectively to refer to a range of tribes and peoples often who each identify separately) and the use of these terms is not uncontentious. This paper generally (but not exclusively) employs the phrase ‘indigenous people’ for this purpose, as this is the term preferred in international instruments, including by consensus in the UN DRIP (see ‘The Declaration on the Rights of Indigenous People 2 October 2007 UN General Assembly Sixty-first session, A/RES/61/295). Damien Murphy ‘The Aboriginal rights treaty that never came: cabinet papers 1988-1989’, Sydney Morning Herald 1 January 2015,
1 prior ownership, continued occupation and sovereignty and affirming our human rights and freedom.’ The Statement hangs prominently in the Parliament House of Australia in Canberra.
Despite this commitment a Treaty was not forthcoming, yet it remains an aspiration of indigenous peoples, both for its’ content and for the symbolic significance of this necessary gesture. In advancing the concept of a Treaty between Indigenous peoples and the Australian
State, there are fundamental issues which need to be resolved, at law, in order to bind the parties to an agreement which ensures the progress of further productive relations between all peoples.
Unfortunately, the political environment surrounding the current debate on constitutional recognition of Indigenous people has been ‘toxic’,3 a description that is likely to apply equally to treaty negotiations given domestic opposition to this.4 The issue of constitutional recognition, its form and its implications have been examined by Parliament and others.5 The broad concept of a treaty is also popular among Indigenous peoples, as popularised in a song called ‘Treaty’ in 1988.
3 Breanna Tucker, 'Toxic, childish, poor and pathetic’, The Guardian, 20 March 2013,
2
It is expected that a proposed treaty would be between the descendants of the British Colonial
Occupiers of the Australian Continent [and others who have come to Australia under their laws]
(‘Settlers’) and the Continent’s First Peoples/ Nations/ Aboriginal and Torres Strait Islander
Peoples/ Indigenous peoples (‘Indigenous peoples’) as the treaty parties. The ‘ethnic’ or racial6 compositions of the key stakeholders are complex, including in terms of law, language, culture and habit, but for convenience, this paper refers to the parties broadly as ‘the two groups’ or the ‘the two main parties’ to negotiations as appropriate.7 The treaty promised by Mr Hawke, which in principle also enjoys the support of other leaders of government and left-leaning political parties, have yet to be given form or substantive content. That is, what is currently being discussed in public is largely the concept of the two main parties entering into a treaty, through a yet unspecified process, and in some yet unspecified manner, form and content.
Thus, the development of a framework for agreement making/ treaty negotiations as an essential prerequisite, can, and should, proceed in spite of the politics of the debate. The decision to enter into a treaty is clearly political,8 but one that in its execution touches on significant legal issues. The current discussions on the need or otherwise for a treaty, in what could be described as an almost clean slate in terms of legal policy, can therefore, become confused. This paper explores some of the procedural and substantive issues that will attend
6 Race is a socially constructed notion. Prichard notes that ‘the dominant view among biological scientists, anthropologists and social theorists in that the concept of ‘race is socially constructed imprecise, arbitrary and incapable of definition or scientific demonstration’: Sarah Pritchard, ‘The ‘Race’ Power in Section 51(xxvi) of the Constitution’, 15 Australian Indigenous Law Review 2 (2011), 44, 50. However, the term is used here as it is part of the Australian legal diction. The legal test for indigeneity in Australia also has a racial component: Shaw & Anor v Wolf & Ors (1999) 163 ALR 205. 7 It is conceded that this shorthand can be considered problematic as it is quite reductionist of both Indigenous peoples and the Settler community, both broad groups of which are composed of multiple ethnicities, cultures and linguistic backgrounds. 8 Mabo v State of Queensland (No 2) (1992) 175 CLR 1.
3 the conclusion of a treaty. While important legal issues are raised they are not examined in a strict technical legal manner on the basis that the development of a coherent conceptual legal framework is the first barrier these two parties must overcome.
The idea of a treaty has caused angst among some in the Settler community. Others believe that the ‘Aboriginal problem’ has been solved. Such preconceptions can result in emotive claims and counterclaims by people on all sides of the political divide. Such opinions, often in a vacuum, are difficult to substantiate or evaluate in a useful or constructive way. Thus, the discussions and creation of a legal framework for the free and transparent development of a substantive treaty is a useful, but relatively uncontentious step, in this process.
While the list of issues discussed here is not exhaustive, this paper seeks to move beyond the conceptual question of the suitability of a treaty in order to highlight some of the complexities and identify some necessary steps that will need to be undertaken in order to effectively negotiate, draft and formalise a treaty. These processes and steps should be undertaken with due diligence and care if a resulting treaty is to have a chance of receiving the necessary support and acceptance in Australia. The outcome of this process is also of significant interest to the international community. A relevant but salient issue is that Indigenous people do not yet enjoy recognition or legal equality under the Australian Constitution.9 Mutual recognition between
9 Asmi Wood ‘Constitutional Recognition: A Case for Less is More’ in Marcia Langton and Megan Davis Eds in “It’s Our Country”. Indigenous arguments for meaningful constitutional recognition and reform (Melbourne University Press, 2016). pp 104-113; Constitutional recognition is in the view of this paper highly desirable (but not absolutely essential, particularly if a treaty is concluded in the international plane). If constitutional recognition does not come to pass, this paper discusses an (international law based, but less ideal, alternative) below: see below discussion accompanying n 10.
4 parties to a treaty is an important legal prerequisite, as it vests agency in the parties to enter into binding negotiations.
Formal negotiations, when they begin, are likely to be a long and complex process, and ideally as proposed, based on internationally recognised principles. A treaty’s substantive content should enjoy the imprimatur, the free, prior and informed consent of Indigenous communities and be framed at a sufficiently high level of abstraction, cognisant of the past but with its direction and vision firmly into the future. That is, Indigenous people should ensure that a treaty does not merely become a mechanism for service delivery (or survival issues), matters that are the responsibility of government towards all its citizens.
Two possible but distinct legal bases for the development of a treaty are identified and examined by this paper and a fairly structured approach is proposed, not as prescriptive but more as a productive contribution to the debate. The first basis examined is a treaty that is developed and operates purely under domestic Anglo-Australian law. It is argued that such a treaty is unlikely to deliver justice to Indigenous people. An alternative and preferred option is then considered, and includes a treaty developed under a domestic Anglo-Australian legal framework, but the operation of which is supervised under a legal regime that includes relevant international law as self-effecting, and where appropriate, binding.
This paper is structured as follows: This introduction is followed by three parts. Part I explores an environment for the development of a treaty. Part II examines treaty in a purely domestic framework. Part III examines the framework which includes international law as an integral part of the operative law. This is followed by some concluding remarks.
5
II PART I: A FRAMEWORK FOR THE DEVELOPMENT OF A TREATY
Treaty developments in other so-called CANZUS states provide a useful point of comparison.
The CANZUS states comprise Canada, Australia, New Zealand and the USA. CANZUS is a useful reference group with which Australia shares a similar colonial history and common law tradition. Treaty making processes in CANZUS states (other than in Australia) intrinsically and necessarily provided Indigenous peoples legal personality as a prerequisite to treaty making. On the other hand, for historical reasons discussed,10 this paper supports explicit constitutional recognition as the better option in Australia. Further, and inter alia for the disparity in power relations,11 domestic law alone, without external supervision, will allow treaty provisions to be interpreted very favourably to the benefit of Settlers.12
In the contemporary Australian and international political and legal context, self-determination for Indigenous people in Australia (‘self-determination’), rather than full political independence, appears to be the most practical and feasible, achievable and arguably even desirable option for Indigenous people.13 There are clearly a range of views on treaty.14 As a starting point, self-determination (as opposed to decolonisation that leads to political independence for example) forms the backdrop for a treaty discussed here. Further, it is crucial
10 See above n 9. 11 See below for comparison by the High Court of the constitutional powers with that of the Nazis. 12 Kartinyeri v Commonwealth (1998) 195 CLR 337; Robert French, 'The Race Power: A Constitutional Chimera' in eds., H.P. Lee and George Winterton ‘Australian constitutional perspectives’ 180, 185. 13 < http://www.abc.net.au/news/2010-01-06/27934>. 14 Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams ‘Treaty’, (Federation Press Sydney 2005); Megan Davis, "Treaty, Yeah? The Utility of a Treaty to Advancing Reconciliation in Australia" (2006) 31(3) Alternative Law Journal 127.
6 that future generations of Indigenous people should not be tied to or unduly limited by the currently weak negotiating position15 of Indigenous communities. One means of mitigating, if not overcoming, this problem is suggested below through the creation of a form of Indigenous constitutionalism.
Self-determination, in its fullest sense, is also best likely to be achieved in the international plane. Support for this assertion lies in the dualistic nature of Anglo-Australian law which creates a clear separation between municipal law and international law. Norms on self- determination are defined in binding international human rights instruments and universally agreed meanings, and these could be adopted in their full meaning in a treaty.
It is argued here that procedural and substantive fairness could better be achieved by using, applying and incorporating internationally accepted and understood notions of what constitutes important human rights norms,16 including notions such as equality, human dignity, self- determination and free and prior informed consent – concepts that the Australian Parliament should not have the power unilaterally, and lawfully, to narrow or redefine. On the other hand, while a treaty – as with all similar legal instruments – should be considered binding, it should not be entrenched or considered eternally binding. It should be subject to evolving conditions,
15 ‘Uluru Statement from the Heart - Referendum Council’,
7 and thus contemplate changes, but for fairness, stability and predictability, which are governed by the applicable customary international norms.17
There are to date no formal agreements between Indigenous people and the British and their heirs and successors.18 In fact, the notion of a terra nullius Australia must in the minds of the
British, have precluded the possibility that there was anyone here to cede territory, engage in warfare or acquire territory through conquest or negotiate an agreement.19 Further, there have been no formal agreements between the two main groups since the common law rejection of terra nullius in 1992 and its codification in the Native Title Act in 1993.20 A more detailed discussion of the history of terra nullius and its impact are presented elsewhere. 21
The recognition of Indigenous people in the Constitution (currently being considered by
Parliament) would finally and arguably completely expunge the notion of terra nullius from
Anglo-Australian law.22 It would also then become possible to reject the historical validity of
17 Article 39, Vienna Convention on the Law of Treaties which holds that subject to the VLCT, that a treaty may be amended by agreement between the parties. 18 Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams ‘Treaty’, (Federation Press Sydney 2005), 1. 19 These were the other legal bases for the acquisition of territory in 1788: Mabo v State of Queensland (No 2) (1992) 175 CLR 1, 32 (per Brennan J). 20 Asmi Wood ‘Constitutional Recognition: A Case for Less is More’ in Marcia Langton and Megan Davis Eds in “It’s Our Country”. Indigenous arguments for meaningful constitutional recognition and reform (Melbourne University Press, 2016). pp 104-113.; Dodson, M, Bailey P & Wood A J, ‘Australia and the International Protection of Indigenous Rights’, in ed. D. Rothwell, International Law in Australia (CUP, December 2016). 21 Asmi Wood ‘Constitutional Recognition: A Case for Less is More’ in Marcia Langton and Megan Davis Eds in “It’s Our Country”. Indigenous arguments for meaningful constitutional recognition and reform (Melbourne University Press, 2016). pp 104-113.; Dodson, M, Bailey P & Wood A J, ‘Australia and the International Protection of Indigenous Rights’, in ed. D. Rothwell, International Law in Australia (CUP, December 2016). 22 An alternative view is that international law forms part of the common law and consequently the legal personhood and equality of Indigenous people has the force of international law. The dualistic
8 the notion and begin to reverse or unwind the impacts of its operation throughout the history of the operation of Anglo-Australian law. For Indigenous people, constitutional recognition undoubtedly creates legal personality recognised on the international plane. It sets the scene for treaty negotiations between the relevant ‘peoples’ in the meaning of the UN Charter. The resulting instrument or treaty should fairly and honourably reset the relationship between the two main parties. Consequently, these negotiations which are an opportunity in a sense to begin (almost) afresh, should be on a fair and even basis, based on a historically accurate set of agreed facts.
The next part examines the development of a purely domestic treaty. There are however, some common preliminary legal issues, including matters such legal personality, competence to represent parties, identification of stakeholders etc. that are in principle necessary for treaty formation generally but are discussed for convenience in that Part. As similar issues arise in the Part III, for convenience and readability, only matters that differ significantly in principle are explicitly addressed separately.
III PART II: ISSUES TOUCHING ON THE DEVELOPMENT OF A TREATY SOLELY
UNDER DOMESTIC AUSTRALIAN LAW (‘DOMESTIC TREATY’)
In 2006, Former Prime Minister Mr Tony Abbott has said that he never supported the notion of a treaty and another former right-of-centre Prime Minister, Mr John Howard, stated that he
nature of Anglo-Australian law arguably means that indigenous people would be safer with explicit recognition in the Constitution.
9 was opposed to the idea of a nation entering into a treaty with itself.23 There are consequently at present significant social and political complexities involved in creating a treaty. On the other hand, the current (left of centre) Labor opposition said that it was open to ‘a treaty, potentially along the lines of agreements struck between Indigenous peoples and governments in New Zealand and Canada’ 24 and the desirability of this model is examined below. Left- leaning parties would arguably support a treaty that includes most Indigenous aspirations, the right-leaning parties are perhaps much less supportive.
CANZUS treaties arguably began their existence as ‘international’ instruments. That is, as treaties entered into between then sovereign powers, or in the case of Indigenous peoples, as
’nations’ under the international law existing at the time. From the European perspective however, treaties were entered into as a means to gain comparative advantage over other
European colonisers, particularly for military, economic and strategic reasons. Once the coloniser gained the upper hand in the military sense, undertakings to protect the interests of the colonised Indigenous populations were abandoned and the British and their successors, had little incentive to honour the original terms of their agreements and undertakings.
The exclusion by the Labor opposition of the treaties between Native Americans and the British
(and later with the USA) is significant as a potential model. This is because First Nations in the USA have been described as ‘domestic dependent nations’ under US federal law. Treaty
23 Anna Henderson and Eliza Borrello, ‘John Howard, Tony Abbott lock in against treaty with Indigenous Australians’, ABC News, 9 September 2016,
10 processes there have led to an ‘inferior’ form of sovereignty, described as ‘domestic sovereignty’ in the remaining lands of the tribal nations.25 Consequently, interpretation of the terms of treaties in the USA have almost completely been determined by the US courts and not subject to independent review. Under Anglo-American law, Native Americans are not sovereign equals but are subjects and litigants, thus having significantly less power to give meaning or force to treaty terms.
In Australia, King George III commanded Governor Phillip to ‘establish friendly relations with the natives’.26 This initial ‘recognition’ of Indigenous peoples in the law by the King,27 gradually diminished to nothingness in the late 1800s when the Privy Council held in effect in
Cooper v Stuart28 that Australia was terra nullius.29
While there were exceptions, friendly relations between the two parties in Australia generally is not borne out in practice.30 Once the land was secure from other competing colonisers, the
25 Joseph Kalt and Joseph William Sing, ‘Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule Faculty’, (Kennedy School, Harvard University, March 2004, Research Working Papers Series, RWP04-016, March 2004). 26 1787 Draught Instructions For Governor Phillip
11 internal struggle became one of competition for land. Dispossessing Indigenous people was clearly in the interests of the coloniser. This competition led to the so called, but often unacknowledged, ‘frontier wars’31 or other conflicts now only dimly visible through the reports of some of the few criminal cases of the times.32 In the US and the other CANZUS states, the British unilaterally determined the content and scope of their treaties and did so almost always to their advantage.33 From experience, a domestic treaty in Australia is not likely to fare much better.
Further, the treaty relationship between Indigenous peoples and the colonial powers in both
New Zealand and Canada have not been without their own individual problems. These issues have been examined in much greater detail in the literature. Thus, including for reasons examined below, caution and careful scrutiny must be exercised before using these treaties as a model in Australia.
In practice, and notwithstanding the existence of treaty relations in Canada, Aboriginal
Canadians were subject to the removal of children in a manner not dissimilar in principle to the
Stolen Generations in a ‘no-treaty’ terra nullius Australia. Further, in Aotearoa/New Zealand the legal system has given primacy to the English (over the Māori) version of the Treaty of
Waitangi. The dominant power of the Pākehā (people in Aotearoa/New Zealand who are of
32 R v Murrell (1836) 1 Legge 72; R v Bonjon (1841), Port Phillip Patriot, 20 September 1841. While much of the brutality of the British remains undocumented in Australia, the treatment of weavers is better documented, in Bengal and whose fingers were cut off so that they would not compete with the inferior textiles from Manchester. This gives us some insight into how Aboriginal people [who were barely recognised as human] were treated in Australia in creating time for the British to gain the upper hand in a Colony: Ian Jack, “Britain took more out of India than it put in – could China do the same to Britain?”, The Guardian, 21 June 2014,
12
British or European descent) has again meant that the treaty is interpreted largely in favour of
Pākehā to the detriment of Māori.
On the other hand, in Canada there have also been significant benefits that have accrued to
Aboriginal Canadians. It is not however, always clear whether it was treaty or the goodwill of contemporary political leanings of individual leaders which makes the more significant difference.34 In Aotearoa, there has been a broad popular recognition by Pākehā of Māori as a distinct ‘people’, and the commemoration of the Treaty is at least symbolically very significant.
On balance and by analogy however, the intrinsic political, social and legal barriers that face the development of a fair and equal domestic treaty in Australia are not insignificant and should not be underestimated.
Legal Personality
The Barunga Statement identifies the Federal Parliament as one party, who will in this instance represent the Settlers. This much is likely to be uncontentious and the representative democratic nature of the Parliament is unlikely to be challenged as not representing the rights, aspirations and views of the Settlers. For the Settler community, the Parliament is well resourced and legally competent to ascertain its position on central issues over time. As the much stronger party however, there must be some agreed measures to help ‘level’ the playing field to ensure Indigenous people can also participate as closely as practical as equals in the process. Consequently, the issue of funding for Indigenous groups for equity is a preliminary
34 Michelle Zilio and Wendy Stueck ‘Trudeau addresses Canada's relationship with Indigenous peoples in UN speech’, The Globe and Mail, 22 September 2017,
13 issue which Parliament should35 address to ensure a free and fair process that is representative and is reflective of Indigenous aspirations.
Treaties in the other CANZUS jurisdictions implicitly recognised the legal personality of
Indigenous people, but it came at a very significant cost including the de facto loss or at least the diminution of Indigenous sovereignty as argued above. That is, legal personality gained through a treaty and as part of the common law alone appears to be of little intrinsic value in enforcing the terms of a treaty. History shows that domestic treaties have not yielded justice for Indigenous peoples. For the reasons discussed therefore, a constitutionally entrenched
Australian Indigenous legal personality is quite significant.
Constitutional Issues
A domestic treaty may also face other constitutional hurdles. At present, the States retain plenary power and thus power over treaty formation within their jurisdictions. In Victoria and
South Australia, the parties to their (State based) treaty (currently being negotiated) would include the state government and local Indigenous tribes and is likely to provide important lessons and insights into helping establish the framework for a nationwide treaty.36
35 UN DRIP (which was endorsed by Australia) acknowledges that: that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, as well as the Vienna Declaration and Programme of Action, affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development […]. Canada has also been involved in some post-colonial treaty making and might provide some lessons for Australia: Megan Davis, "Treaty, Yeah? The Utility of a Treaty to Advancing Reconciliation in Australia" (2006) 31(3) Alternative Law Journal 127, 127.
14
Arguably, a domestic treaty would not be an instrument that falls within the meaning of the external affairs power of the Federal Constitution. Therefore, the co-operation of the States is an important preliminary factor to the Commonwealth, perhaps through the referral of powers by all states. 37
There are also critical matters related to process, and the scope and substantive content of a treaty. As Indigenous people have largely been invisible to the law, displaced from society, segregated and shunned, there are some key issues that Indigenous people will need to ascertain among themselves before engaging in negotiations with each other and/or the Commonwealth.
Three infrastructural items which may help Indigenous people to crystallise and articulate their own positions on key fundamental issues before treaty negotiations can begin are now examined.
An Equitable Treaty: Some Preliminary Steps
An Indigenous Constitution
Each new period of time and new generation brings with it its own unique challenges. English law over time has established constitutionalism (written or otherwise) as is its custom for preserving its civilisation in law. Constitutionalism is arguably a reasonable way of capturing and maintaining the collective memory, history, custom, law and wisdom of a people in formal, slowly evolving but not overly rigid way. Indigenous society has been seriously dislocated by colonisation and needs the time and resources to regroup. This British constitutional model would arguably benefit Indigenous people to help formally to reclaim their cultural inheritance,
37 Constitution s 51(xxxvii); the commonwealth or the Federal Parliament in Australia retains plenary powers over the Territories: s 122 Constitution.
15 including through Indigenous elders among whom there is a vast accretion of knowledge of the human condition bequeathed to them from over the eons. As McMillan has noted, Indigenous peoples decide how, when and in which order or priority they can ‘operationalise these aspirations’.38 It is conceded that following a coloniser’s precedent might not be acceptable to many, but this option might serve as a starting point.
Some attempt to capture, and where permissible, codify some of this knowledge in the British precedent of constitutionalism arguably is suited to Indigenous people, knowledges and epistemology. An appropriate group of elders and lawyers perhaps could help develop an
Indigenous constitution that is in part written and captures common and important common values and principles. Various Indigenous tribes could augment and complement this document with their oral histories, custom and law as appropriate. There are also organisations and institutions such as AIATSIS and the universities that hold a significant body of useful works on Indigenous people which, as appropriate, should form part of this collective memory.
Indigenous people could then self-determine how their knowledges are deployed.
An Indigenous Constitution could also capture in principle and abstract unique issues of land, caring for country, language and spirituality and, more prosaic but central, issues of primary education, bi-lingual and bi-cultural education, and the concomitant right to maintain culture, particularly culture that is specifically tied to land, and are some among a range of important issues normally captured in a Constitution. There are also issues with significant financial implications such as the sharing of natural resources including sub-surface, seabed, continental shelf, water and water column resources generally, currently exclusively claimed to be
38 Mark McMillan, ‘Sovereignty’ Address at the Universities Australia Conference Canberra, 28 February – 1 March 2018, National Convention Centre Canberra.
16 regulated solely by the Crown (in cases subject to international treaties which the Executive has ratified),39 but cognisant of the importance of avoiding a service delivery model, nonetheless to note important issues of principle for human well-being.
Contemporary issues should arguably not completely dominate a long and rich culture that has lasted millennia. On the other hand, the inclusion of the lessons delivered in some seminal reports that have documented the collective experience of Indigenous people in the more recent traumatic years could be a useful repository of knowledge. This is particularly important to ensure that a history that sought to annihilate Indigenous people will not be repeated.
There is also a significant collation of Indigenous and broader human rights norms in the international plane. Instruments such as the UN Charter, the Universal Declaration of Human
Rights and other human rights, cultural and political covenants, declarations and conventions from the UN and the ILO among others, can also provide a useful body of norms on which
Indigenous people can draw upon as culturally appropriate.
Some of the broad substantive issues that would need to be examined in careful detail include questions of sovereignty,40 self-determination, Indigenous laws (and how they may operate and
39 Aboriginal Land Rights (Northern Territory) Act 1976 Sections 42 – 47, broadly speaking, gives land councils in the Northern Territory an effective right to some ownership and a power of veto in cases. This compares with much weaker rights under the Native Title Act 1993 (Cth). While negotiations are likely to be contested and difficult, free and fair negotiations are likely to produce better and fairer outcomes for Indigenous people. This paper does not however seek to paint an overly positive picture of international lbased negotiations. The dispute between East Timor and Australia over oil resources in the Timor Gap, an international agreement, is an example of an iniquitous outcome and allegations of bad faith in negotiations between unequal parties.
40 Please note that to this point, reference to sovereignty has been used in the international law meaning of the term from the time of the Treaty of Westphalia or the notion that the Sovereign has the divine
17 evolve within a new legally pluralistic common law framework) and mechanisms dealing with an extended notion of the conflict of laws. At present Anglo-Australian law manages conflicts within its several jurisdictions but one would in the future have to contemplate how this model can be extended to include ‘Indigenous’ jurisdictions (a notion that needs to be explored and better defined in time).
The second important step would possibly be determining how collective agreement could be ascertained and identifying a suitable forum for this purpose. The next suggested step is the creation of an Indigenous Consultative Forum (‘ICF’) which may look like a ‘parliament’ but a term which is avoided for reasons explained by the Australian Prime Minister who attributed the full rights of a Westminster style parliament to this notion.41
An Indigenous Consultative Forum (ICF)
An ICF could help establish agreed processes to elect/ select a representative subgroup of
Indigenous people with the requisite knowledge and experience to help articulate Indigenous aspirations and concerns, (such as but not limited to the creation of an Indigenous Constitution and identifying suitably qualified and representative negotiators for a treaty processes). A
right to rule. Sovereignty used in this particular context arguably carries a very different meaning, one that will be defined by Indigenous people over time but which will through necessity have to intersect at some points with the Westphalian meanings of the term. Sovereignty in an Indigenous sense carries means of a duty to care for country, its denizens and to hold its care as a trust held on behalf of our children, to be delivered intact; taking from her only what we need to live according to our own laws. See also Henry Reynolds, Aboriginal Sovereignty: Three nations, One Australia (Allen & Unwin, Sydney 1996) xiv-xvii. 41 The authors concede that there is some reticence to the idea of an Indigenous ‘parliament’, particularly among the right of centre political leaders but more importantly the leaders of the larger parties. While dispelling the perception that an ICF ipso facto is ‘problematic’ is important in practice’, such perceptions are largely political and not a legal. We cite the existence of the Sami parliament in the Nordic states as an example of a legal model of an Indigenous parliament that would work within a parliamentary democracy. Whether such a model is acceptable to/ among Indigenous people is also something that must be ascertained through consensus.
18 broad representative and democratic forum for decision making among Indigenous people is an important piece of infrastructure that is crucial for self-determination, even in the absence of the issue of a treaty. Such a body or voice is supported in principle by the majority of
Indigenous people. On the other hand, it is crucial that the Australian government should not be able to cherry pick its preferred candidates to represent Indigenous people at the negotiations and thus skew the processes and outcomes. Such a forum, appropriately adapted to account for geography, size of the tribe, levels of colonisation and other relevant factors, could then provide a familiar, robust, democratic and representative institution that is acceptable to both groups.
There are also likely to be significant differences between an ICF and a ‘representative body’.
The ICF, by analogy, is more akin the UN General Assembly representing a range of peoples of varying population sizes and distribution. Thus, and arguably, some compromise set-up between these two institutions would be better suited for the purpose. An agreement on a fair process for how representatives will be selected/ elected, and providing for equitable representation of all Indigenous peoples is, an important step, as is determining how and by whom each of the tribes is represented.
It is conceded that the establishment of an ICF is likely to be a complex and expensive exercise.
It however, arguably, fits within the undertakings given in the international plane by Australia to promote self-determination among Indigenous people and to which Australia is yet to give effect.42
42 The Declaration on the Rights of Indigenous People 2 October 2007 UN General Assembly Sixty- first session, A/RES/61/295. Funding the treaty programme is a relevant issue not examined in any detail here. Australia is obliged by International law to help fund self-determination for Indigenous
19
Treaty Negotiations
Further, for practicality it seems unlikely that every tribe can be represented at the treaty negotiations, though efforts should be made to facilitate this wherever possible. On the other hand, it is crucial that adequate, broad and collective representation at the negotiations that is acceptable to Indigenous people is established.
Further, Indigenous people could use the ICF to discuss and achieve a level of consensus in principle on both key procedural and also substantive issues touching on treaty formation. An
ICF (or as mentioned in the Uluru Statement and Indigenous Voice) can arguably generally help establish consensus on central issues and do so as part of their self-determined process. It may seem to be a contradiction that the ‘parliament’ provides self-determination when we speak of using treaty to achieve this end. The rules and manner in which the negotiations under domestic law that will lead to a treaty, and how the treaty may be amended in the future, should also be set out with a degree of flexibility to help everyone navigating what is in large part is a sui generis process. Suffice to say that the entire process should viewed as an organic and iterative evolution of a solution rather than a linear process with specific predetermined milestones.
These and other preliminary steps that can be identified by Indigenous people, followed by a series of good faith negotiations would need to take place before the content of a treaty can be
people but could use a mix of Commonwealth, state, private and philanthropic etc. funds to achieve this.
20 finalised in principle between the two groups. Negotiations should not be rushed for pragmatic or instrumental reasons or for convenience.
Domestic Treaty Conclusion
A domestic treaty will most likely largely be negotiated, concluded, signed and ratified in
Australia. There are legal issues of how one would (in specie) distinguish a ‘domestic treaty’ from a mere contract that was concluded between the same parties.43 It is likely that the High
Court, would resolve disputes and be the final arbitrator of legal disputes between the parties based on domestic law alone. This is not an ideal arrangement given the deference paid by the
High Court to the notion of Parliament’s supreme position in the Anglo-Australian version of the Westminster system and which disproportionately favours the coloniser. This problem is highlighted in the exchange between Justice Kirby and the Solicitor General when the latter confirmed that the Constitution would permit the Parliament to validly make laws that were akin to those promulgated by the Nazis.44 The race power is still part of the Constitution in
2018, and still clearly permits the detrimental treatment of Indigenous people.45
Further, while service delivery has been an important part of the historical relationship as in previous attempts at self-determination (such as ATSIC46), between the two peoples, the final
43 A domestic ‘treaty’ if viewed as a contract raises issues such as the rule against perpetuities in Anglo- Australian law and are technical issues that will need to be settled if a domestic treaty becomes the final instrument in this matter. 44 See transcript of 5 February 1998, Griffith QC’s response to Kirby J, cited in Tony Blackshield and George Williams, Australian Constitutional Law and Theory Commentary and Materials, (Federation Press, 5th ed, 2010), 985. 45 The Australian Constitution s 51(xxvi); Kartinyeri v Commonwealth (1998) 195 CLR 337; Robert French, 'The Race Power: A Constitutional Chimera' in eds., H.P. Lee and George Winterton ‘Australian constitutional perspectives’ 180, 185. 46
21 treaty should not in substance reflect this past relationship. A treaty should represent a visionary, strategic and high-level document setting out the future relationship between peoples and civilisations. Indigenous people should be given, and should insist on, the opportunity to exercise free, prior informed consent at every important stage of the negotiation and finalisation of the instrument perhaps through a process akin to the Westminster ‘Committee System’.
However, many Indigenous people would concede that a free and fair treaty outcome is not likely to be achieved in the domestic plane alone. For the reasons explored above it would therefore appear best not to follow a solely domestic treaty as the sole means of reflecting the aspirations of the two peoples.
This paper, now focuses on some key aspects that can, broadly speaking, be concluded in the international plane. What is proposed here is a combination of both domestic and international law as forming the policy and legal frameworks. The representative structures and other important legal prerequisites necessary to obtain input and consensus building for a domestic treaty largely remain primarily the same for the purposes of the next Part.
IV PART III: A FRAMEWORK FOR A TREATY UNDER INTERNATIONAL LAW
Introduction: Law and Prejudice
Negotiations for a treaty here suggest treaty formation in the international plane. This would include a judicial body where appropriate jurisdiction over the subject matter and disputes would vest (but which does not exclude the High Court of Australia). Some key issues are now briefly examined. This list is not exhaustive but principally aims to show that there are few legal impediments to treaty formation in the international plane. Whether the political will to
22 do this is present is a separate but relevant question. The resetting of race relations between the two main groups is however, a fundamental question of justice. Treaty formation in the international arena will make it difficult for racist domestic politicians and their core constituencies to use domestic law and prejudices to frustrate the process under the veneer of nationalism and populism.
As a member of the UN, and in conjunction with Indigenous people, (and although this is NOT a legal prerequisite for negotiations to commence) Australia might be able to seek the assistance of the UN Decolonisation Committee47 and/ or the International Court of Justice
(‘ICJ’) under the UN Charter48 in seeking an advisory opinion of the Court to explore the question of how a tract of land wrongfully declared terra nullius could now be decolonised fairly.
A Basic Legal Framework for Treaty Negotiations
The starting point for a legal framework provided for in the Vienna Convention on the laws of
Treaties (‘VLCT’)49 is a tried and tested internationally acceptable framework for treaty negotiations. English legal conventions for the purpose of treaty formation, including negotiation, amendment, interpretation and dispute resolution, all facets appropriately adapted for use in the international plane, are also likely to be acceptable to the majority. However, as mentioned, the applicable body of law should encompass common law notions plus incorporating relevant international law as self-effecting for purposes of litigation,
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23 interpretation and dispute resolution, generally to prevent Parliament from using the
Constitution and domestic law as unfair hurdles.
The Exhaustion of Domestic Remedies
The two main parties can by consensus agree to negotiate a treaty under international law.50
Most Indigenous people in Australia accept or support the proposition that sovereignty has never been ceded, a position that can be supported in law and fact.51 This arguably means that
Sovereign Indigenous people are a ‘people’ in the meaning of the UN Charter and can seek to be decolonised under the rules and processes available under the UN umbrella. However, parties may52 have to ensure that any preliminary procedural matters are satisfied, which is now broadly considered.
The exhaustion of domestic remedies before seeking international human rights remedies is an established international law principle.53 What exactly ‘exhaustion might mean’ is arguably unclear for the purposes of a treaty in Australia. In any event the High Court has stated that adjudication on this issue of sovereignty is outside the competence of a municipal court54 and is authority for proposition that the domestic relevant legal avenues have been exhausted.
Nonetheless, some Settler groups in Australia unjustly might try to use this option as an
50 Please see below n 52. 51 Asmi Wood ‘Constitutional Recognition: A Case for Less is More’ in Marcia Langton and Megan Davis Eds in “It’s Our Country”. Indigenous arguments for meaningful constitutional recognition and reform (Melbourne University Press, 2016). pp 104-113. 52 A A C Trindade, Origin and Historical Development of the Rule of Exhaustion of Local Remedies in International Law, Revue Belge de Droit Internationale, No. 2 (1976), 499– 527. 53 A A C Trindade, Origin and Historical Development of the Rule of Exhaustion of Local Remedies in International Law, Revue Belge de Droit Internationale, No. 2 (1976), 499– 527. 54 Mabo v State of Queensland (No 2) (1992) 175 CLR 1, 31 (per Brennan J).
24 opportunity to increase costs, introduce delays or frustrate the treaty process, but Parliament could in good faith preclude this possibility by passing appropriate legislation to prevent this.
A remaining question in this context is whether Parliament has the authority to pursue this question in the international plane. It is argued here that both the external affairs power and arguable even the so-called nationhood power will provide the Parliament a lawful head of power to engage in negotiations with sovereign Indigenous people in the international plane.
Legal Personality
The issue of Federal Parliament representing Settlers has been discussed. With the appropriate legislation in place the agreement of the States arguably is not a prerequisite, as the external affairs power of the Constitution permits Parliament to enter into a treaty in the international plane.55
Constitutional recognition (if it has occurred) would create (both domestic and international) legal personality for Indigenous people, an important legal prerequisite for treaty formation outside a purely domestic context.56 Alternatively, as discussed above, the treaty itself can implicitly recognise Indigenous legal personhood, though there are limitations to the suitability of this approach. The question of how the content and expression of Indigenous personality is given practical effect and represented in treaty negotiations with the Commonwealth are also crucial issues which will have to be resolved during the process. It is important for Indigenous
55 The Constitution 51(xxix). 56 Dodson, M, Bailey P & Wood A J, ‘Australia and the International Protection of Indigenous Rights’, in ed. D. Rothwell, International Law in Australia (CUP, December 2016).
25 people that, given the power disparity, Indigenous delegates are seen to be free from any form of coercion or undue influence by the Government. Strict adherence to the VCLT would help in this regard.
Equality Before the Law
Indigenous people in Australia do not enjoy legal equality under the Australian Constitution.57
In the international plane however, and under customary law equality is axiomatic and it is proposed here a jus cogens norm, a norm from which no derogation is permitted. It is noted here that if Australia honours its international obligations in this regard, then it will consider itself bound to not using domestic law,58 to defeat this (jus cogens) norm.59 The key issue here is to prevent Parliament using the race power in the Constitution to the detriment of Indigenous people.
Terra Nullius and International Law
It is unlikely that Australia will be able to sustain its past claims that the continent was terra nullius (in the international plane).60 On the other hand, Indigenous people could seek an international declaration that Australia was never terra nullius, a claim that is most likely to succeed.61 The implication for Indigenous people is that they may be able to seek reparations.
For good faith negotiations however, Indigenous people could agree not to pursue matters such
57 Asmi Wood ‘Constitutional Recognition: A Case for Less is More’ in Marcia Langton and Megan Davis Eds in “It’s Our Country”. Indigenous arguments for meaningful constitutional recognition and reform (Melbourne University Press, 2016) pp 104-113. 58 The Australian Constitution s 51(xxvi); Kartinyeri v Commonwealth (1998) 195 CLR 337. 59 Article 64, Vienna Convention on the Law of Treaties. 60 Western Sahara, Advisory Opinion 1975 I.C.J. 12 (16 October). 61 Western Sahara, Advisory Opinion 1975 I.C.J. 12 (16 October).
26 as claims of genocide in return for a fair and equitable treaty that is negotiated in good faith and to bring about a conclusion that results in an honourable self-determination regime for
Indigenous people, but which also recognise the facts on the ground.
Official Languages of the Treaty
Adopting the ICJ’s official languages, English and French versions of a treaty as equally authoritative is unlikely to be uncontentious. Each Indigenous group should have the right to have the treaty translated into their own language but for practicality the issue of authoritativeness should be left open for negotiation, cognisant of practicality and opposability.
Self-determination for Indigenous People
Further, the notion of self-determination is vital to Indigenous people and as this is a notion that has been well explored in the international plane. The scope and meaning of self- determination is included in several human rights instruments that have been developed in the post-colonial era. Consequently, the internationally settled notions of self-determination are much more likely to be fair to Indigenous people particularly when opposable in the international dispute resolution framework.
Treaty Negotiations Signature and Ratification
The identification of the Indigenous parties to the final content of a treaty and how, by whom and where a final treaty between the parties shall be signed and ratified could also be developed by consensus through the ICF.
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Location for Treaty Negotiations and Ratification
The forum for treaty negotiations is likely to be here in Australia. The final signing and ratification process could perhaps be carried out simultaneously in Geneva, Canberra or other important Indigenous places to represent both practical and symbolic elements of the process.
A degree of transparency and international oversight would likely benefit Indigenous people due to the power disparity between the parties and is otherwise significant. The processes for how the Indigenous community will express its assent for ratification must also be settled.
General Conclusion
Relations between Indigenous people and Settlers have been difficult over the years. The alienation, segregation and forced assimilation of Indigenous people has led to a history that is difficult but one that must not be ignored for pragmatic reasons. Many leaders in Australia, and arguably most eloquently Mr Paul Keating,62 have accepted the historical injustices need to be addressed and that this should be done fairly. For their part, Indigenous people are recovering from the harsh policies of the past but more importantly are seeking to reset relations with a firm eye on the future.
The High Court has accepted that the normative systems of Indigenous people predate British arrival, and this creates a new paradigm for relations that were denied to Indigenous people in the days of terra nullius63 when mere survival was the best for what one could hope. The High
Court in Australia has also conceded that determining questions such as sovereignty of the continent are outside the scope of its jurisdiction, creating an opportunity for the two groups to
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28 seek initial resolution, such as through a treaty, and to do this in an international environment where the ghosts of the past will not inhibit or frustrate the establishment of a genuinely equitable framework for future relations between the two main parties. Indigenous notions of what constitutes sovereignty appear to be significantly different to the meaning of the term at international law, and its full expression under indigenous notions of the term are likely to create futures that might pleasantly surprise many non-Indigenous people.
Disadvantages of the past mean that there needs to be a significant period of institution building among Indigenous people so that they are in a position to make fully informed and free choices that will benefit their people and set them on the road to recovery of their cultures and civilisations in the fullest meaning of these terms. This is likely to be a fairly expensive exercise but one which a wealthy nation such as Australia can, and must fund, if it is true to its word that it seeks to reconcile, atone and make amends for its past cruel, inglorious and dishonourable treatment of Indigenous people.
This paper argues that achieving a framework for justice is likely to be difficult but possible.
Negotiations in the international plane are more likely to help alleviate the problems caused by the distrust in the domestic sphere and to help the two main parties to bring their collective aspirations together in a visionary, strategic and high-level document setting out the future relationship between peoples and civilisations. The process should be viewed as organic rather than a linear.
Concluding a treaty that broadly sets out the aspirations of all people sharing this continent is likely to help ease the injuries of the past, to benefit from the interaction of great civilisations
29 and help build a brighter future for all our children. The Prime Minister Mr Turnbull said that he was committed to doing things with and not to Indigenous peoples.64 This means that
Indigenous people can determine their own priorities and solutions (i.e. self-determination in practice!) This is what the vast majority of Indigenous people want, a people determining their destiny in a form of self-determination that is free and fair. Mr Turnbull is not the first to make this commitment. Will he however be the first to do as he says? The signs are not promising, but it is not too late for him to be remembered in history as one who spoke with a straight tongue.
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