THE INHERENT RIGHT OF ABORIGINAL SELF-GOVERNMENT IN AUSTRALIA by OLIVIA McLEOD BARR LL.B. (Dist.), University of Western Australia, 2002 B.A., University of Western Australia, 2002 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (The Faculty of Law) We accept this thesis as conforming to the required standard THE UNIV^FJSrrrOf^ BRITISH COLUMBIA August 2004 © Olivia McLeod Barr, 2004. THE UNIVERSITY OF BRITISH COLUMBIA F AC ULTY'sQF GRADUAT E?ST U M ES| Library Authorization In presenting this thesis in partial fulfillment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. u c\ rr f)(f~s,« Iff. % 11? / oS fo f Name of Author (please print) Dat*e_ / (dd/mm/yyyyi i/ / )\ ' Title of Thesis: Degree: Yea r: lOO j _J3gpartmont of— The University of Britishi ColumbiColumbia I Vancouver, BC Canada grad ubc ca/formsPformlD^HS ' * ' page 1 of 1. , '-'lastUpdated \6-Aug-04 ABSTRACT The relationship between Aboriginal peoples and the rest of contemporary Australian society is bittersweet. While Australians have embraced some aspects of Aboriginal culture - especially in art and sport - governments and the courts cling stubbornly to colonial attitudes when it comes to matters of justice and civil and political rights. The failure to recognise and give effect to Aboriginal rights has contributed to a significant power imbalance between Aboriginal people and the wider Australian society. This imbalance is manifest in a lack of education, employment and healthcare options for Aboriginal people and in the overrepresentation of Aboriginal people in the criminal justice system. One way to address this power imbalance is to recognise and protect a greater measure of Aboriginal self-government. However, the concept of self-government has an extremely low profile in Australia. It is not a matter of current government policy and the courts have only dealt with self-government as a peripheral aspect of native title. I consider the question of whether there is a common law right of self-government in Australia. I look to Canadian aboriginal rights jurisprudence to inform the development and recognition of a common law doctrine of self-government in Australia. Ill As soon as one looks beyond the rhetoric of legal positivism and analyses the case law in its historical context, it becomes apparent that the inherent right of self- government existed as part of the colonial common law imported into Australia. Importantly, the inherent right of self-government continues to form part of Australian common law. The inherent right of self-government must be recognised. This is crucial, not only to address the significant power imbalance that exists in Australia today, but also to maintain the conceptual integrity of the Australian legal system. iv TABLE OF CONTENTS ABSTRACT ii PREFACE: THE LITTLE PRINCE vn ACKNOWLEDGEMENT xiv CHAPTER ONE: INTRODUCTION i_ The Inherent Right of Aboriginal Self-Government 6 Methodology 10 CHAPTER TWO: ABORIGINAL SOVEREIGNTY 14 Aboriginal Sovereignty Prior to Colonial Contact 15 The Impact of Colonisation on Aboriginal Sovereignty 19 Sovereignty: Myriad Meanings 21 INTERNATIONAL LAW, SOVEREIGNTY & THE STATE 25 CONTEMPORARY NOTIONS OF SOVEREIGNTY 28 MOVING BEYOND THE REALM OF STATE SOVEREIGNTY 30 Sovereignty Considered by Australian Courts 33 COE v COMMONWEAL TH (NO. (1979) 34 WACANDO v COMMONWEALTH (1981) 44 COE v COMMONWEALTH (NO. 2) (1993) 47 WALKER V NEW SOUTH WALES (1994) 50 Rejection of Absolute not Modified Sovereignty 52 FLAWED QUESTIONS 53 FLAWED ASSUMPTIONS UNDERPINNING THE COURT'S RESPONSE 56 CONFLATED COMMENTARY 58 Conclusion 60 V CHAPTER THREE: SELF-GOVERNMENT & THE COLONIAL COMMON LAW 62 Worcester v Georgia & the Right of Self-Government 63 Worcester v Georgia in Canada and Australia? 69 CANADA: A SELECTIVE EMBRACING 69 AUSTRALIA: DENIAL OR MERELY A MISUNDERSTANDING? 81 Why Does Canada Accept While Australia Reject Worcester v 84 Georgia? Conclusion 87 CHAPTER FOUR: NATIVE TITLE & SELF-GOVERNMENT 89 The Land Rights Movement 90 The Mabo Decisions 91 Communal Native Title & Self-Government 96 An Aboriginal Right to Land & Self-Government: Beyond Social 103 Darwinism Conclusion 114 CHAPTER FIVE: ABORIGINAL CUSTOMARY LAW 116 The Great Australian Silence 117 A Gradual Awareness 118 GOVERNOR MACQUARIE'S & GOVERNOR DAVEY'S PROCLAMATION 119 THE PREROGATIVE OF MERCY 123 The Early New South Wales Trilogy: The Other Side of the Frontier 125 R v BALLARD (1829) 126 R VMURRELL (1836) 131 R v BONJON (1841) 135 vi Colonial Recognition of Aboriginal Law 137 CONTEMPORARY INTERPRETATION FLAWED 138 THE DEBATE 143 RECOGNITION OF ABORIGINAL LAW 145 The Contemporary Situation 148 Administrative Flexibility or Legal Plurality? 150 Aboriginal Law & Self-Government 156 Conclusion 158 CHAPTER SIX: CONCLUSION 160 BIBLIOGRAPHY 164 Vll Preface THE LITTLE PRINCE I would like to indulge myself, and my readers, in remembering the children's story "The Little Prince" by Antoine de Saint-Exupery.1 For those who don't remember, or were unfortunate never to know, the Little Prince lived on Asteroid B-612. This is a very small planet, where you can see the sunset again and again, just by moving your chair. One day the Little Prince left his planet and visited his neighbours. He met some very interesting people and visited some very interesting planets and then he arrived on Earth. There he met an adult. It is this adult that I would like to remember. Well, actually, it is this adult, when he was still a child, that I would like to remember. This child saw a magnificent picture in a book of a boa constrictor swallowing an animal. After pondering this, the child made "Drawing Number One". It looked like this: 1 Antoine de Saint-Exupery, The Little Prince, trans, by Katherine Woods (New York: Harcourt, Brace & World, 1943). Vlll When he showed it to the adults, expecting them to be frightened, he was disappointed. The adults couldn't understand why they should be frightened of a hat! The drawing was not of a hat, but of a boa constrictor digesting an elephant. The adults couldn't see that. The child made a second drawing that the adults could understand (because adults always need explanations). This time he made a drawing from the inside, which he called "Drawing Number Two". Drawing Number Two looked like this: The adults advised the child to stop drawing and to devote time to geography and grammar. So he did. As a grown-up, he would show Drawing Number One to any adult who appeared clear-sighted, to try and find out if they were a "person of true understanding". They would always say, "that is a hat." This was because they were concerned with "matters of consequence".2 2 Ibid at 12. If an adult was concerned with "matters of consequence", then the child (who is now an adult) would "never talk to that person about boa constrictors, or primeval forests, or stars. I would bring myself down to his level. I ix One day, this little boy that was now an adult, was in the Desert of Sahara because his plane had broken down. It was there that he met the Little Prince. The Little Prince wanted him to draw a sheep, but he had never drawn a sheep. So he drew the boa constrictor from the outside, his Drawing Number One. The little Prince was very upset because he did "not want an elephant inside a boa constrictor. A boa constrictor is a very dangerous creature ... [w]hat I need is a sheep."3 Needless to say, the boy that was now a grown-up was astounded. I have been wondering why the Little Prince could see that Drawing Number One was a boa constrictor swallowing an elephant from the outside, yet the adults could only see a hat. And why the adults needed to see Drawing Number Two in order to understand that it wasn't a hat, but a boa constrictor swallowing an elephant. I think the adults could not see because the adults were concerned with matters of consequence. By the time children have grown up and become adults, they have developed a particular world-view. Once this world-view has been developed, it becomes the way in which adults understand the world. Often, it becomes very inflexible. A set process has developed whereby adults process information and understand events in a particular manner. If a person approaches an act or event in a manner that is would talk to him about bridge, and golf, and politics, and neckties. And the grown-up would be greatly pleased to have met such a sensible man." 3 Ibid. X not compatible with the adult's world-view, then that approach is wrong. It is wrong because the adult cannot comprehend the event in that manner. It is not inherently wrong. It is wrong as a matter of interpretation. It is wrong as a matter of consequence. In the fifteenth century, the intensity of the global movement of colonisation increased. European explorers sailed across the oceans in search of new lands. When these lands were "discovered", the "settlers" claimed ownership using legal doctrines of their own legal system. Australia and Canada were "discovered" in this manner. In both Australia and Canada, indigenous peoples had owned and occupied the land for many thousands of years under their own legal systems.