Mark Cooray
Mark Cooray is Associate Professor of Law at Macquarie University.
Whatever the moral and political case for entering into a treaty or compact with the Aborigines, the status and terms of any such treaty or compact will be limited by the legal and constitutional possibilities and obstacles. In 1983 the Senate Standing Committee on Constitutional and Legal Affairs produced a report which explored in detail this topic. Its preferred option was for a constitutional amendment which would empower the Commonwealth to enter into a compact with the Aborigines without the terms of the compact being defined in the Constitution.
AN analysis of the legal and constitutional aspects of an Aboriginal "treaty" must be conducted within a historical and philosophical perspective. Debate on the Aboriginal problem has been marred by what has been termed the "guilt industry" which is based on the idea that somehow today's white Australians are responsible for British settlement and must bear the guilt for the sporadic acts of violence which followed. The view is not usually stated quite so bluntly, but it lies at the core of much activist rhetoric.
The fundamental need is to assist individual Aborigines to solve the real problems of health care, housing, education and the like which confront them. This, however, is only coincidentally on the agenda of many activists, most of whom are of the ideological left. They exploit the Aboriginal issue as a propaganda tool for the creation of division and discontent and for the denigration of the Australian achievement. Powerful vested interests exist in the Government and non-Government organisations which have developed ostensibly to assist Aborigines. The demands for Aboriginal self-determination which issue loudly from such organisations ring rather hollow in light of the massive salary and infrastructure expenditure which they consume, which scarcely assists those in need.
The historical perspective is also important. History is a catalogue of the rise and fall of civilisations and the migration and resettlement of peoples, by peaceful and violent means. The concept of there being "original inhabitants" of a particular part of the earth does not stand up to critical analysis. It is equally superficial to suggest that later arrivals or their offspring ought to leave or provide compensation.
The British settlement of Australia, like the Roman settlement of Britain, can be characterised as the imposition of a more developed civilisation (not only with reference to science and technology, but also in literature, art and music). In light of the state of the world at the time, settlement of Australia by a greater power was inevitable. As it happened it was fortuitous that that settlement was by the British -- rather than perhaps by the Portuguese or the Dutch. The British brought with them the most advanced system of government and justice in the world.
The problems of the present, not the past, should be of concern to today's Australians. The idea of an Aboriginal "treaty" gives rise to a number of complex legal issues. The 1983 Report of the Senate Standing Committee on Constitutional and Legal Affairs entitled Two Hundred Years Later ... Report on the feasibility of a compact, or "Makarrata" between the Commonwealth and Aboriginal people, contains a useful general analysis of the issues.
TREATY OR COMPACT?
The word "treaty" implies an agreement between two sovereign nations under international law. The international law of treaties was codified in 1969 by the Vienna Convention on the law of Treaties. Article 2(1)(a) of the Convention provides:
"... for the purposes of the present Convention, "treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
The "Aboriginal people" cannot be said to possess international personality and any agreement with them could not be regarded as a treaty enforceable at international law, no matter the terms in which it was couched. Aborigines are not now, and were never, a nation in the accepted sense of the word. Upon European settlement they consisted of many hundred of tribes, speaking some 700 separate languages. There were frequent violent confrontations between tribes. There were and are no written language and no national political or legal institutions. An accurate description of them in evolutionary terms would be "stone age", given that their tools were all timber, stone or bone. They had no knowledge of cultivation or the herding of animals, and no understanding of the smelting of ore to produce metals.
Today they lack unity and have no representative body. The National Aboriginal Conference was disbanded by Minister Holding in 1985 because of alleged mismanagement of funds. It was also not representative of the full span of Aboriginal opinion. Most importantly of all, however, the suggestion that Australia should be regarded as two nations, one of which might make treaties with the other like the nations of Europe, is patently absurd.
There has been considerable debate about, and judicial consideration of, the doctrine of terra nullius. A literal translation is roughly: land belonging to no one. The fundamental legal foundation of British settlement was that Australia was not occupied, that is in the sense that no claim of sovereignty could be made out by the Aborigines. In Coe v Commonwealth (1979) 24 ALR 118 the legality of British settlement was challenged. The challenge was unsuccessful, but Murphy J. described the view that Australia was settled rather than conquered as "a convenient legal fiction" (at 137). There is some truth in this statement, but after 200 years of the exercise of authority over Australia by the Parliament and the Crown under the Constitution in Australia it is of no relevance. The present legal and constitutional standards are now an immovable part of the established legal order, and any consideration of their historical strengths or weaknesses is of little more than academic interest.
In Millirrprum v Nabalco Pty Ltd and the Commonwealth (1970) 17 FLR 1441 the plaintiffs sought legal recognition of customary Aboriginal land rights. In denying such recognition, Mr Justice Blackburn held that the plaintiffs had not made out their case that they had the same links to the same areas of land as had their ancestors 180 years earlier. Blackburn J. held further that the relationship of the Aborigines to the land, which he characterised as "communical native title", had no part of the law of Australia. He cited Blackstone's commentaries, which provide that "desert and uncultivated ... have always been taken to include territory in which live uncivilised inhabitants in a primitive state of society" (at 201).
The experience of other nations which have concluded "treaties" with indigenous inhabitants is relevant. The Treaty of Waitangi was concluded between the British Government and the Maoris of the north island of New Zealand in 1840. The treaty has never been ratified and although it received domestic legislative endorsement in 1975 it has never had the status of an international instrument, as the Maoris were not recognised as having international personality. Its legal validity rests upon Anglo-New Zealand common law.
The US Government entered into some 242 "treaties" with the Indians, but these can be more accurately described as contracts for the purchase of land. The Indian Appropriations Act, 1871, provided that "no Indian nation or tribe within the territory of the United States shall be acknowledged or recognised as an independent nation, tribe or power with whom the United States may contract by treaty ..." (cited in Senate Report, op cit, p. 52). The Government of Canada also entered into a number of "treaties" with the Indians. These, likewise, only have the status accorded to them by domestic law.
This suggests, therefore, that an Aboriginal "treaty" would be of no legal effect as such, and furthermore that it would be quite inappropriate to term any such document a "treaty", given the legal and semantic connotations of that word. Indeed, it is the use of the word "treaty" which has, very understandably, given rise to much of the emotionalism surrounding the issue. Another word which has also been used in this context is the Aboriginal word "Makarrata", but evidence was given to the Senate Committee that there was disagreement amongst Aborigines as to the meaning of the word, and that it had no meaning whatsoever to many. The Committee decided, therefore, to adopt the more neutral word, "compact".
THE LEGAL AUTHORITY FOR A COMPACT
Available Sources
There are many sources of legal authority for a compact. They are:
- An amendment to the Constitution through a referendum which
- incorporates the whole compact, or
- confers an enabling power upon the Commonwealth to enter into a compact
- An Act passed by the Commonwealth Parliament under the authority of the Constitution as it stands, relying on:
- s.51(xxvi) "race" power and/or
- s.51(xxix) "external affairs" power
- A simple agreement or common law contract between the Australian Government and the Aboriginal people.
Incorporation into the Constitution
Some form of compact may be incorporated into the Constitution, through a referendum. An alternative is an incorporation into the Constitution of an enabling power, providing authority to the Commonwealth to enter into a compact, similar to that contained in section 105A, through a referendum.
The need for some reorganisation of the nation's financial relationships was recognised in the Financial Agreement between the Commonwealth and the States in 1927. Section 105A incorporated the Agreement into the Constitution in 1929 as a result of a referendum held the previous year. Basically the section gives the Commonwealth power to take over State debts, with the agreement of the States, and for the indemnification of the Commonwealth by the States in respect of debts taken over.
Amendments to the Commonwealth Constitution require to be submitted to a referendum under section 128, which prescribes a majority of votes in a majority of States.
The supporters of the Constitutional amendment option generally hold that the most meaningful of the two alternatives would be for the whole text of the compact to be included. On the other hand, however, it can be argued that the likelihood of success of a referendum to include the whole compact is extremely narrow, and that the detail of the compact would be subject to fine judicial interpretation which could result in unintended consequences. A clause in the Constitution cannot easily be amended if the need arises.
A broad enabling power stating no more than the general principles would allow greater flexibility for legislation. However, if not carefully drafted it could be a vehicle which would place a potentially very powerful weapon in the hands of the Parliament, if the High Court provided a favourable expansive interpretation. The High Court's interpretation of section 105A is relevant in this context. In NSW v Commonwealth (1032) 46 CLR 155 at 177 it was held:
"In our opinion the effect of this provision is to make any agreement of the required description obligatory upon the Commonwealth and the States, to place its operation and efficacy beyond the control of any law of any of the seven Parliaments, and to prevent any constitutional principle or provision operating to defeat or diminish or condition the obligatory force of the Agreement".
There are many examples of decisions where the High Court has provided interpretations which have permitted the expansion of Commonwealth power. (1)
It must be recognised, however, that the possibility of the success of any amendment to the Constitution is not high. There have been 42 proposals since Federation, of which eight have been successful. Australians are suspicious of proposals which have the effect, either directly or indirectly, of increasing Commonwealth power, as the results of the 3 September 1988 referendums illustrate. Furthermore, the effect of activist propaganda has been to alienate to varying degrees many Australians from the Aboriginal cause. There is a popular perception that the Federal Government operates a kind of reverse apartheid, which unfairly grants benefits to Aborigines to which non-Aborigines are not entitled. This renders the possibility of a successful referendum for a compact with the Aborigines highly unlikely.
Use of existing Constitutional authority of the Commonwealth Parliament
A compact under existing Constitutional power is the most realistic possibility. Section 51(xxvi) provides:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:
(xxvi) the people of any race for whom it is deemed necessary to make special laws.
Originally, the section specifically excluded Aborigines, but this exclusion was withdrawn by a referendum in 1967. The effect of the amendment was to give the Commonwealth a plenary power (concurrent with the States) with respect to the Aboriginal race. Lumb and Ryan put it thus:
"This amendment has ended any doubts which may have existed as to the power of the Commonwealth to enact laws for the benefit of the Aboriginals, for example by providing a special system of Aboriginal social services or bringing in resettlement and land-owning schemes for the Aboriginal populations of the States". (Quoted in Senate Report, op cit, p. 82).
It should be noted that the power can only be exercised "subject to" the Constitution. Its exercise, therefore, cannot infringe sections 92 (interstate trade), 116 (freedom of religion), or 117 (discrimination on the basis of State of residence). These limitations do not, however, preclude the Commonwealth from entering into a compact with the Aborigines.
Section 51(xxvi) was considered in some detail in Koowarta v Bjelke-Petersen and others (1982) 39 ALR 417. Gibbs C.J. provided a wide interpretation of the section, holding that a necessity to make special laws may be constituted merely by the passing of special laws by the Parliament:
"The opinion of the Parliament that it is necessary to make a special law need not be evidenced by an express declaration to that effect, it may appear from the law itself". (p. 429)
Stephen J. argued, however, that there was a requirement that there be necessity in fact to make a special law. This constitutes a somewhat narrower reading of the section than that of Gibbs C.J., but it does not imply any limitation which would preclude the making of a compact.
Section 51(xxvi) also received considerable attention in Commonwealth v Tasmania (1983) 159 CLR 1, which considered the validity of Commonwealth legislation to stop further construction of the Gordon-below-Franklin dam in Tasmania. One of the purported grounds of the legislation was the race power, on the basis that the river contained significant Aboriginal sites which would be flooded if the dam was built. Whilst the case did not turn on section 51(xxvi), the judges lent significant scope to the power. Mason J. held that it extended to the cultural heritage of a race, and Brennan J. held that the section:"... does not place a limitation on the nature of the benefits which a valid law may confer, and none should be implied". (p. 220)
The section is, therefore, capable of supporting a compact, but obviously the specific clauses would require to be examined carefully. I would argue that section 51(xxix) (the "external affairs" power) offers a more certain Constitutional underpinning for a compact. Over the past decade or so it has received more judicial consideration than perhaps any other section of the Constitution. Its scope has been gradually expanded by a series of decisions beginning with Koowarta (op cit), and including Commonwealth v Tasmania (op cit), Richardson v Forestry Commission (1988) 77 ALR 237 and culminating in State of Queensland and Another v Commonwealth of Australia and Another (1988) 77 ALR 291.
The general rationale that can be drawn from these cases is that the Commonwealth Parliament may legislate validly on any matter that is the subject of an international instrument to which Australia is a party. Furthermore, Richardson (op cit) constitutes a significant extension to this. In that case the High Court considered, inter alia, the validity of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987. The Act provided for an inquiry into two areas of Tasmania to determine whether they possessed values of a World Heritage status, pursuant to the World Heritage Convention to which Australia is a party. Part III of the Act provided for protection of the areas during the inquiry period, lest any values be destroyed. The Court held that this was a valid exercise of Commonwealth power under section 51(xxix), even though no determination had yet been made about the existence of World Heritage values which would invoke Australia's obligations under the Convention. Wilson J. held, inter alia:
"... if and when the Commonwealth Parliament enacts legislation with the object of discharging an international obligation, the choice of means for achieving that object is for the Parliament and not for this court ..."
The inescapable conclusion is that, given a High Court which continues to lend section 51(xxix) such scope, were Australia to become a party to an international instrument dealing with the protection of indigenous populations, such as International Labor Organisation Convention 107, the capacity for the Commonwealth Parliament to legislate in purported compliance with obligations contained therein would be virtually unlimited.
Thus authority would be available under either of the two sources of power analysed, or under a combination of both, for the Commonwealth Parliament to enact legislation embodying a compact or which establishes the machinery for the negotiation of a compact.
Use of existing authority of the Commonwealth Executive
The Commonwealth may enter into an ordinary contract with the Aboriginal people. Victoria v The Commonwealth (1975) 134 CLR 338 (The Australian assistance Plan case) could be regarded as providing authority for the proposition that the Commonwealth executive power in section 61 extends to activity in any area in respect of which Parliament has legislative power. Section 61 provides:
"The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth".
This means that the Governor-General acting as the Queen's representative, on the advice of the Prime Minister and Cabinet, could enter into a contract with the Aboriginal people, (subject to difficulties identified below). Such a contract would not have the same legal or symbolic significance as a compact under Constitutional law, and would give rise to difficulties in relation to enforcement. There are no legal precedents which provide guidance. It is, however, an available option.
THE ABORIGINAL PEOPLE AND THEIR REPRESENTATIVES
A compact is between two or more parties and in this case must be signed by the representatives of the Aboriginal people. This raises two issues: who constitutes the Aboriginal people; and who are the representatives of the Aboriginal people?
At present, no test is applied to determine who is an Aborigine in the course of administering the benefits to which persons of Aboriginal descent are entitled under law. "A person who feels like an Aborigine" is regarded as an Aborigine. This is from the point of view of law the height of absurdity. The official definition of Aborigine is:
"An Aborigine is a person of Aboriginal descent who identifies as an Aboriginal and is accepted as such by the community with which he/she is associated".
The latter half of this definition is not applied in practice.
A workable definition of an Aborigine is required. This must be followed by a process by which the Aborigines elect their leaders, with all Aborigines having a vote. This is the method by which the true representatives of the Aboriginal people may be determined.
An alternative mechanism would involve selection of Aboriginal representatives from those who are vocal and active in relation to Aboriginal affairs. This would result in the selection of persons who are not necessarily representative of the Aboriginal people (particularly of those who can claim to be full-blood or near full-blood Aborigines, with a knowledge and understanding of the traditional Aboriginal way of life).
A compact entered into with those who are not genuine Aborigines and representative of genuine Aborigines would be an exercise in public deception.
THE CONTENT OF A COMPACT AND THE LEGAL CONSEQUENCES
One option is for a compact which contains some platitudes (recognising Aborigines as original inhabitants and containing a commitment to raise standards) which will be largely symbolic. It will not offend non-Aboriginal individuals. It will not satisfy the activists. Whether it will be acceptable to the non-activist Aborigines (who probably constitute a significant majority) is a moot question.
The other option is for a compact which guarantees material entitlements (land rights, compensation and other pecuniary benefits). Such guarantees will be opposed by many and be a divisive factor.
The analysis of the nature and content of possible benefits lies outside the scope of this paper. An inclusion of rights in a compact raises the issue of legal enforceability and the question of who may claim thereunder. This involves the intractable issue discussed above ("who is an Aborigine") and whether there is an "Aboriginal people" distinct from individual Aborigines. My philosophy is that individuals, not groups, are the only possible beneficiaries of rights.
CONCLUSIONS
The twin issues of the definition of an "Aborigine" and who are the representatives of the Aboriginal people, appear to be the most intractable of the problems associated with a compact. The legal problems in respect of the power and authority of the Commonwealth of Australia under the Constitution to enter into a compact are surmountable.
But the entire issue is likely to be divisive. Few Australians resent benefits granted to the needy and depressed, whether Aboriginal or otherwise. But they do rightly resent the payment of benefits to people on the basis of race or group and not on the basis of demonstrated need.
NOTES
1. See: L.J.M. Cooray and S. Ratnapala, "The High Court and the Constitution -- Literalism and Beyond" in G. Craven (ed.), The Convention Debates 1891-1898, Commentaries, Indices and Guide, G. Craven (ed.), Vol. 6, p. 203-225.
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