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The inherent right of aboriginal self-government in Australia Barr, Olivia McLeod 2004

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THE INHERENT RIGHT O F ABORIGINAL S E L F - G O V E R N M E N T IN A U S T R A L I A by OLIVIA M c L E O D B A R R  LL.B. (Dist.), University of Western Australia, 2002 B.A., University of Western Australia, 2002  A THESIS SUBMITTED IN PARTIAL FULFILMENT O F THE R E Q U I R E M E N T S F O R THE D E G R E E O F M A S T E R O F LAWS in THE F A C U L T Y O F G R A D U A T E 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.  f)( ~s,«  Iff.  f  %  11? / oS fo f u  rr  c\  Name of Author (please print)  *_ / (dd/mm/yyyy) i i/ / \' Date  Title of Thesis:  Degree:  Yea r:  lOO  j  _J3gpartmont of— The University of Britishi Columbia Vancouver, B C  I  Canada  grad ubc c a / f o r m s P f o r m l D ^ H S  '  *  '  page 1 of 1.  ,  '-'lastUpdated  \6-Aug-04  ABSTRACT  T h e relationship b e t w e e n Aboriginal p e o p l e s a n d the rest of c o n t e m p o r a r y A u s t r a l i a n society is bittersweet. W h i l e A u s t r a l i a n s h a v e e m b r a c e d s o m e a s p e c t s of Aboriginal culture - e s p e c i a l l y in art a n d sport - g o v e r n m e n t s a n d the courts cling stubbornly to colonial attitudes w h e n it c o m e s to matters of justice a n d civil a n d political rights. T h e failure to r e c o g n i s e a n d give effect to A b o r i g i n a l rights h a s contributed to a significant power i m b a l a n c e between Aboriginal p e o p l e a n d the wider A u s t r a l i a n society. T h i s i m b a l a n c e is manifest in a lack of e d u c a t i o n , e m p l o y m e n t a n d healthcare options for A b o r i g i n a l p e o p l e a n d in the overrepresentation of A b o r i g i n a l people in the criminal justice s y s t e m .  O n e w a y to a d d r e s s this p o w e r i m b a l a n c e is to r e c o g n i s e a n d protect a greater m e a s u r e of Aboriginal self-government. H o w e v e r , the c o n c e p t of self-government h a s a n extremely low profile in Australia. It is not a matter of current g o v e r n m e n t policy a n d the courts h a v e only dealt with self-government a s a peripheral a s p e c t of native title.  I c o n s i d e r the question of whether there is a c o m m o n law right of self-government in Australia. I look to C a n a d i a n aboriginal rights j u r i s p r u d e n c e to inform the d e v e l o p m e n t a n d recognition of a c o m m o n law doctrine of self-government in Australia.  Ill  A s s o o n a s o n e looks b e y o n d the rhetoric of legal positivism a n d a n a l y s e s the c a s e law in its historical context, it b e c o m e s apparent that the inherent right of selfg o v e r n m e n t e x i s t e d a s part of the colonial c o m m o n law imported into A u s t r a l i a . Importantly, the inherent right of self-government continues to form part of A u s t r a l i a n c o m m o n law.  T h e inherent right of self-government must be r e c o g n i s e d . T h i s is crucial, not only to a d d r e s s the significant power i m b a l a n c e that exists in Australia today, but a l s o to maintain the c o n c e p t u a l integrity of the Australian legal s y s t e m .  iv  TABLE OF CONTENTS ABSTRACT  ii  P R E F A C E : T H E LITTLE PRINCE  vn  ACKNOWLEDGEMENT  xiv  CHAPTER O N E : 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  I N T E R N A T I O N A L L A W , S O V E R E I G N T Y & T H ES T A T E  25  CONTEMPORARY NOTIONS O FSOVEREIGNTY  28  MOVING B E Y O N D T H E R E A L M O FS T A T E SOVEREIGNTY  3 0  Sovereignty Considered by Australian Courts COE  v COMMONWEAL  WACANDO COE  v COMMONWEALTH  WALKER  TH (NO.  v COMMONWEALTH  V NEW  SOUTH  (NO. WALES  (1979) (1981) 2)  (1993) (1994)  Rejection of Absolute not Modified Sovereignty  33 34 44 47 50  52  FLAWED QUESTIONS  53  FLAWED ASSUMPTIONS UNDERPINNING T H ECOURT'S R E S P O N S E  56  CONFLATED COMMENTARY  58  Conclusion  60  V  CHAPTER THREE: SELF-GOVERNMENT  & T H E COLONIAL  COMMON LAW  6  2  Worcester v Georgia & the Right of Self-Government  63  Worcester v Georgia in C a n a d a and Australia?  69  CANADA: A  SELECTIVE EMBRACING  69  AUSTRALIA:  DENIAL OR M E R E L Y A MISUNDERSTANDING?  81  Why Does Canada A c c e p t While Australia Reject Worcester v Georgia?  84  Conclusion  87  C H A P T E R F O U R : NATIVE T I T L E & S E L F - G O V E R N M E N T  89  The Land Rights Movement  90  The Mabo Decisions  91  C o m m u n a l Native Title & Self-Government  96  A n Aboriginal Right to Land & Self-Government: B e y o n d Social Darwinism  103  Conclusion  114  C H A P T E R FIVE: A B O R I G I N A L C U S T O M A R Y L A W  116  The Great Australian Silence  117  A Gradual Awareness  118  GOVERNOR MACQUARIE'S & GOVERNOR DAVEY'S PROCLAMATION T H E PREROGATIVE OF M E R C Y  The Early New South Wales Trilogy: The Other Side of the Frontier R v BALLARD R  VMURRELL  R  v BONJON  (1829) (1836) (1841)  119 123  125 126 131 135  vi  Colonial Recognition of Aboriginal Law CONTEMPORARY INTERPRETATIONFLAWED T H E  DEBATE  RECOGNITION OF ABORIGINAL L A W  137 138 143 145  The Contemporary Situation  148  Administrative Flexibility or Legal Plurality?  150  Aboriginal Law & Self-Government  156  Conclusion  158  C H A P T E R SIX: C O N C L U S I O N  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. For those who don't remember, or 1  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. A s 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  O n e day, this little boy that w a s now a n adult, w a s in the Desert of S a h a r a b e c a u s e his plane had broken d o w n . It w a s there that he met the Little P r i n c e . T h e Little P r i n c e w a n t e d him to d r a w a s h e e p , but he had never d r a w n a s h e e p . S o he d r e w the b o a constrictor from the outside, his Drawing N u m b e r O n e . T h e little P r i n c e w a s very upset b e c a u s e he did "not want a n elephant inside a b o a constrictor. A b o a constrictor is a very d a n g e r o u s creature ... [w]hat I n e e d is a s h e e p . " N e e d l e s s to 3  s a y , the boy that w a s now a grown-up w a s a s t o u n d e d .  I h a v e b e e n w o n d e r i n g w h y the Little P r i n c e could s e e that D r a w i n g N u m b e r O n e w a s a b o a constrictor swallowing a n elephant from the outside, yet the adults could only s e e a hat. A n d w h y the adults n e e d e d to s e e Drawing N u m b e r T w o in order to understand that it wasn't a hat, but a b o a constrictor swallowing a n elephant. I think the adults could not s e e b e c a u s e the adults w e r e c o n c e r n e d with matters of consequence.  B y the time children h a v e g r o w n up a n d b e c o m e adults, they h a v e d e v e l o p e d a particular world-view. O n c e this world-view has b e e n d e v e l o p e d , it b e c o m e s the w a y in w h i c h adults understand the world. Often, it b e c o m e s very inflexible. A set p r o c e s s h a s d e v e l o p e d w h e r e b y adults p r o c e s s information a n d understand events in a particular manner. If a p e r s o n a p p r o a c h e s a n act or event in a m a n n e r 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 c o m p a t i b l e with the adult's world-view, then that a p p r o a c h is w r o n g . It is w r o n g b e c a u s e the adult cannot c o m p r e h e n d the event in that manner. It is not inherently w r o n g . It is w r o n g a s a matter of interpretation. It is wrong a s a matter of consequence.  In the fifteenth century, the intensity of the g l o b a l m o v e m e n t of colonisation i n c r e a s e d . E u r o p e a n explorers sailed a c r o s s the o c e a n s in s e a r c h of n e w lands. W h e n t h e s e l a n d s w e r e "discovered", the "settlers" c l a i m e d o w n e r s h i p using legal d o c t r i n e s of their o w n legal s y s t e m . Australia a n d C a n a d a w e r e "discovered" in this manner. In both Australia a n d C a n a d a , i n d i g e n o u s p e o p l e s had o w n e d a n d o c c u p i e d the land for m a n y t h o u s a n d s of y e a r s under their o w n legal s y s t e m s . W h e n the settlers arrived a n d c l a i m e d ownership, a conflict arose. T w o legal s y s t e m s validated the o c c u p a t i o n of the land by different nations but neither legal s y s t e m c o m p r e h e n d e d the other legal s y s t e m .  In s o m e parts of C a n a d a , treaties w e r e negotiated. T h e s e treaties w e r e a p r o c e s s of conciliation m a d e with a n intention to d e v e l o p a relationship that sufficiently r e c o g n i s e d the rights of both parties under both legal s y s t e m s . In Australia a n d in large parts of C a n a d a , including most of British C o l u m b i a , no treaties w e r e negotiated. Instead, the British applied their laws without any recognition of i n d i g e n o u s law or conflict with i n d i g e n o u s law.  xi Where treaties were negotiated in Canada, there was at least some recognition of two legal systems. Even though it is unlikely that either the coloniser or the First Nation had a detailed understanding of the content or manner of the other's legal system, they both recognised that another legal system existed. Essentially, this is an understanding of Drawing Number One. Both parties were able to comprehend a concept foreign to their holistic legal systems. In contrast, where there were no treaties, the colonisers suffer from the same problem as the adults who could not see Drawing Number One without the help of Drawing Number Two. In Australia and British Columbia, the colonial legal system was incapable of seeing, let alone comprehending, indigenous legal systems.  The modern treaty process in British Columbia is an effort to make these adults, the "settlers" with imperialistic colonial ideologies, see and understand Drawing Number One. It is a process that requires a focus that is not centred on matters of consequence but provides room for the interaction of two legal systems.  In Australia, a similar process is occurring with native title. However, since the first recognition of common law native title by the High Court of Australia in Queensland  {"Mabo (No.  2)")  A  Mabo v  in 1992, the Federal Government has severely  restricted the breadth of native title by the implementation of and amendment to the  "(1992) 175 C L R 1  Xll  Native Title Act 1993 (Cth). T h i s p r o c e s s of increasing restrictions o n native title 5  rights a n d interests is arguably a result of a n inability of the A u s t r a l i a n G o v e r n m e n t a n d legal s y s t e m to s e e b e y o n d matters, of c o n s e q u e n c e . It is a n attempt to m o v e from D r a w i n g N u m b e r O n e , the Mabo (No. 2) d e c i s i o n , b a c k to Drawing N u m b e r T w o , the position prior to Mabo (No. 2). T h e drive behind this regression is a n e m b e d d e d view of the A u s t r a l i a n legal s y s t e m a n d its relationship with Aboriginal law. T h i s w o r l d - v i e w h a s b e c o m e d e e p l y ingrained in the A u s t r a l i a n legal s y s t e m a n d despite the w a t e r s h e d d e c i s i o n in Mabo (No. 2), it s e e m s difficult a s a nation to maintain "true understanding".  A u s t r a l i a n c o m m o n law is p r e m i s e d upon the m i s c o n c e p t i o n that it is the only legal s y s t e m operating in Australia. Without consideration of different cultural beliefs a n d laws, the E n g l i s h legal s y s t e m w a s i m p o s e d on Aboriginal p e o p l e s and Australia w a s classified terra nullius, a land belonging to nobody. A s a result of terra nullius a n d the doctrine of d i s c o v e r y , E n g l i s h c o m m o n law entered Australia without a n y i m p e d i m e n t s a s if it w a s a legal v a c u u m , a s p a c e w h e r e no law operated.  Self-government is a bridge b e t w e e n two legal s y s t e m s , providing recognition of A b o r i g i n a l law through a n A u s t r a l i a n legal doctrine. T h e doctrine of inherent A b o r i g i n a l self-government requires the Australian legal s y s t e m to s e e something it h a s previously b e e n incapable of s e e i n g : Aboriginal law. It requires the A u s t r a l i a n  5  The Native Title Act 1993 (Cth) was amended by the Native Title Amendment Act 1998 (Cth), which implemented Prime Minister John Howard's infamous '10 Point Plan'.  Xlll legal s y s t e m to understand that Aboriginal law exists a s a n e q u a l but different legal s y s t e m . It d o e s not require A u s t r a l i a n law to understand the details of A b o r i g i n a l law. Rather, self-government provides recognition of Aboriginal law a n d A b o r i g i n a l d e c i s i o n - m a k i n g , but d o e s not detail the content. Aboriginal law determines the content of the right of self-government.  T h i s is similar to the c h a l l e n g e of D r a w i n g N u m b e r O n e , w h i c h required adults to s e e b e y o n d the limitations of their world-view. It d e m a n d e d that adults r e c o g n i s e a b o a constrictor s w a l l o w i n g a n elephant whilst leaving the content and the details to the imagination. L i k e w i s e , self-government requires A u s t r a l i a n law to r e c o g n i s e A b o r i g i n a l law but allow s p a c e for the details to be provided by Aboriginal law. It m e a n s that A u s t r a l i a n law must take a step back a n d not d e m a n d k n o w l e d g e of the details. In order to do this, a s required of the adults, Australian law must let go of the fiction that it is the only legal s y s t e m . T h i s c h a l l e n g e is not insurmountable, b e c a u s e o n c l o s e a n a l y s i s , the legal s y s t e m itself doesn't e v e n abide by this fiction!  Self-government is a n opportunity for the A u s t r a l i a n legal s y s t e m to gain "true understanding" a n d attain a n e w level of critical self-awareness by letting go of certain "matters of c o n s e q u e n c e " . W h a t is n e e d e d is a c h a n g e in the A u s t r a l i a n world-view. T h e c h a l l e n g e is whether the A u s t r a l i a n legal s y s t e m is c a p a b l e of the maturity a n d vision required to s e e D r a w i n g N u m b e r O n e a s the Little P r i n c e did.  xiv  ACKNOWLEDGMENT  T h i s t h e s i s h a s b e e n s u p p o r t e d by a fellowship from the L a w F o u n d a t i o n of British C o l u m b i a a n d the k i n d n e s s a n d a c a d e m i c w i s d o m of P r o f e s s o r M i c h a e l J a c k s o n Q . C . a n d J i m Aldridge Q . C .  1  Chapter One INTRODUCTION  In 1989, the A b o r i g i n a l a n d T o r r e s Strait Islander C o m m i s s i o n ("ATSIC") w a s e s t a b l i s h e d to provide the opportunity for Indigenous people to be involved in the p r o c e s s e s of g o v e r n m e n t affecting their lives. T o a c h i e v e this, indigenous 1  representatives w e r e elected to constitute the highest-level indigenous body. T h i s w a s a major g o v e r n m e n t initiative r e c o g n i s i n g indigenous self-determination. In addition to handling g o v e r n m e n t funding, A T S I C h a s b e e n an a d v o c a t e for i n d i g e n o u s rights both nationally and internationally. A l t h o u g h there have b e e n problems, the current F e d e r a l O p p o s i t i o n has r e c o g n i s e d that:  ... for m a n y Indigenous A u s t r a l i a n s , A T S I C represents the only form of selfdetermination available to t h e m .  2  O n 15 April 2 0 0 4 , P r i m e Minister J o h n H o w a r d and Minister for Immigration and Multicultural a n d Indigenous Affairs A m a n d a V a n s t o n e a n n o u n c e d that the G o v e r n m e n t w a s m o v i n g to abolish A T S I C . It will not be r e p l a c e d . Instead, s e r v i c e s are to be m a i n s t r e a m e d into g o v e r n m e n t d e p a r t m e n t s a n d a purely advisory group of indigenous leaders will be appointed. O n 2 7 M a y 2004, the first d a y of  1  2  Established by the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Commonwealth, Parliamentary Debates, House of Representatives, 1 June 2004, 29375 (Bob McMullan, Shadow Minister • for Finance and Small Business).  2 Reconciliation W e e k a n d the a n n i v e r s a r y of the 1969 referendum granting formal recognition of Aboriginal people a s citizens, the Aboriginal and Torres Strait Islander Commission  Amendment  Bill 2004 (Cth) ("the Bill") w a s introduced into P a r l i a m e n t  to a b o l i s h A T S I C . T h e r e h a v e b e e n protests a n d the F e d e r a l O p p o s i t i o n has c a l l e d for a S e n a t e inquiry. T h e G o v e r n m e n t , however, h a s indicated their intention to implement these c h a n g e s regardless of protests, inquiries or S e n a t e d e l a y s . T h e 3  Bill is currently before the S e n a t e .  T h e depth of the F e d e r a l G o v e r n m e n t ' s hostility towards indigenous rights w a s revealed in justifications g i v e n for abolishing A T S I C without replacement by either a n elected body or a b o d y e s t a b l i s h e d in consultation with indigenous people. P r i m e Minister J o h n H o w a r d , referring to A T S I C ' s "notorious . . . culture of favouritism a n d n e p o t i s m " revealed that: 4  W e believe very strongly that the experiment in s e p a r a t e representation, elected representation, for indigenous people h a s b e e n a failure ... I d o believe that it h a s b e c o m e too p r e o c c u p i e d with what might be loosely called s y m b o l i c a n d rights i s s u e s a n d too little c o n c e r n e d with delivering real o u t c o m e s .  3  5  "Govt Presses Senate to Pass ATSIC Changes" ABC Newsonline, 27 May 2004 at <http://www.abc.net.au/news>. All electronic references are accurate as of 20 August 2004.  4  "Govt Moves to Sell ATSIC Decision" ABC Newsonline, 16 April 2004 at <http://www.abc.net.au/news>.  5  Karen Middleton & Charlie Wilson-Clark, "Problems Will Not Go Away, Says ATSIC", The West Australian (Perth), 16 April 2004 at 11.  3  A m a n d a V a n s t o n e , in d e n y i n g that the abolition of A T S I C d e p r i v e s A b o r i g i n a l people of elected representation by referring to the fact that Aboriginal people vote in elections and are represented by their local m e m b e r , m a d e the additional point that:  W h e n people s a y to m e w e have to h a v e a s e p a r a t e s y s t e m , I s a y 'there w a s a country o n c e that w e wouldn't play cricket with b e c a u s e they had a s e p a r a t e s y s t e m , ' w e just wouldn't go a n d play cricket with t h e m if y o u r e c a l l .  6  T h e blatant association b e t w e e n A T S I C , a n early attempt at recognising indigenous self-determination and the only attempt to a c c o m m o d a t e indigenous p e o p l e s within a political situation that h a s historically e x c l u d e d and marginalised their communities, and apartheid is a frightening revelation of the current political climate in A u s t r a l i a . S h a d o w Minister B o b M c M u l l a n aptly d e s c r i b e d this hostile climate w h e n he d e c l a r e d that the Bill:  ... g i v e s effect to the P r i m e Minister's long held desire to dismantle every m e a n s available to Indigenous A u s t r a l i a n s to participate in d e c i s i o n s about their future.  6  7  Kate Gauntlett & Charlie Wilson-Clark, "Apartheid Remark Attracts Ridicule", The West Australian (Perth), 17 April 2004 at  6. 7  Commonwealth, Parliamentary Debates, House of Representatives, 1 June 2004, 29374 (Bob McMullan, Shadow Minister for Finance and Small Business).  4  In addition to this direct attack on self-determination, there is growing c o n s e n s u s that e v e n native title, touted a s the paramount recognition of Aboriginal rights, has failed. A n y hope for i n c r e a s e d a u t o n o m y g e n e r a t e d by the High C o u r t ' s d e c i s i o n in Mabo v Queensland  ("Mabo (No. 2)"f has b e e n greatly d i m i n i s h e d by the  1998  a m e n d m e n t s to the Native Title Act 1993 (Cth) a n d the impact of the recent High C o u r t d e c i s i o n s in Western Australia of the Yorta Yorta Aboriginal  v Ward ("Miriuwung  Community  v  Gajerrong")  and  9  Members  Victoria™  T h e Native Title Act 1993 (Cth) is d e e p l y flawed a n d has b e e n d e s c r i b e d by the  W e s t e r n Australian Deputy P r e m i e r a s "a 4 0 0 p a g e o b s t a c l e c o u r s e " . recently, in the High Court d e c i s i o n in Miriuwung Gajerrong,  11  More  both M c H u g h a n d  C a l l i n a n J J w e r e harshly critical of the current native title s y s t e m . J u s t i c e M c H u g h wrote:  T h e d e c k is s t a c k e d against the native-title holders w h o s e fragile rights must give w a y to the superior rights of the l a n d h o l d e r s w h e n e v e r the two c l a s s e s of rights c o n f l i c t . . . It m a y be that the time has c o m e to think of a b a n d o n i n g the  8  (1992) 175 CLR 1.  9  (2002) 191 ALR 1.  10  (2002) 194 ALR 538.  11  Eric Ripper, Deputy Premier, Western Australia, "Funding Rethink Needed for Faster Native Title Progress" Press Release (27 September 2002) quoted in Mick Dodson, "Native Title on the Precipice: The Implications of the High Court's Judgment on the Ward Case" (Paper presented at the ANU Institute for Indigenous Australia, Canberra, 17 October 2002) at <ni.anu.edu.au/docs/dodson.pdf>.  5 p r e s e n t s y s t e m , a s y s t e m that s i m p l y s e e k s to d e c l a r e a n d enforce the legal rights of the parties, irrespective of their m e r i t s .  12  In addition to H i g h C o u r t j u s t i c e s v o i c i n g their c o n c e r n s about the illusory benefits of native title; elders, politicians, activists, farmers a n d a c a d e m i c c o m m e n t a t o r s h a v e all d e c l a r e d the native title s y s t e m a f a i l u r e .  13  N o e l P e a r s o n stated:  T h e c o n c e p t of native title that the H i g h C o u r t h a s a d o p t e d h a s not d e s t r o y e d native title, but the d o o r s h a v e b e e n s l a m m e d shut o n its maturation a s a legal i n s t i t u t i o n .  14  W h a t h a s e m e r g e d is a political e n v i r o n m e n t that a s s o c i a t e s self-determination with apartheid, w h i c h d e n i e s A b o r i g i n a l rights o n the b a s i s of a disturbingly twisted notion of equality a n d renders native title rights a n d interests o b s o l e t e . It is b e c a u s e of this hostile political e n v i r o n m e n t that legal solutions b e y o n d the p a r a m e t e r s of native title, rather than political solutions must be c o n s i d e r e d a s a m o r e v i a b l e m e a n s of  12  Above n 9 at 156. Justice Callinan, at 281, wrote: "I fear, however, that in many cases because of the chasm between the common law and native title rights, the latter, when recognised, will amount to little more than symbols."  13  Prominent critics include Mick Dodson, Geoff Clark and Noel Pearson. Mick Dodson is member of the Yawuru people of the southern Kimberley, Western Australia. He was Australia's first Aboriginal and Torres Strait Islander social justice commissioner with the Human Rights and Equal Opportunity Commission and is the former director of the Northern Land Council. He is a prominent advocate on land rights and other issues affecting Aboriginal and Torres Strait Islander people, and has worked for the rights and interests of indigenous people worldwide through various roles with the United Nations. Geoff Clark was Chairman of ATSIC at the time it was disbanded. Noel Pearson is the former Executive Director of Cape York Land Council and currently involved with Cape York Partnerships. He was also involved in the drafting of the Native Title Act 1993 (Cth). See Mick Dodson, "Native Title on the Precipice: The Implications of the High Court's Judgment on the Ward Case" (Paper presented at the ANU Institute for Indigenous Australia, Canberra, 17 October 2002) at <ni.anu.edu.au/docs/dodson.pdf>. See also Rick Farley, "Australia Day Address" Reprinted from the Age (23 January 2003) at <http://www.kooriweb.org/foley/news/story32.html>.  14  Noel Pearson, 'Native Title's Day in the Sun is Over' The Age (Sydney), 28 August 2002.  6 r e a d d r e s s i n g the significant p o w e r i m b a l a n c e that currently exists in A u s t r a l i a b e t w e e n indigenous p e o p l e s a n d the w i d e r Australian s o c i e t y .  15  T H E INHERENT RIGHT O F ABORIGINAL S E L F - G O V E R N M E N T  T h e question I c o n s i d e r in this thesis is whether or not there is a c o m m o n law right of self-government in Australia. Before I e x a m i n e this question, it is important to clarify terminology. Self-determination, self-management a n d self- government, although often u s e d interchangeably, are distinct c o n c e p t s .  Self-determination is a fundamental h u m a n right.  16  A s c a n be s e e n in n u m e r o u s  international d o c u m e n t s , including the United Nations Draft Declaration Rights of Indigenous  Peoples  ("Draft Declaration"),  c o m p o n e n t of self-determination.  on the  s e l f - g o v e r n m e n t is a n e c e s s a r y  17  Article 3: Indigenous p e o p l e s have the right of self-determination. B y virtue of that right they freely determine their political status a n d freely p u r s u e their  A power imbalance 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. Australia, Report of the Royal Commission into Aboriginal Deaths in Custody (Canberra: A G P S , 1991); See also Loretta Kelly, 'Reconciliation and the Implications for a Sovereign Aboriginal Nation' (1993) 3(61) Aboriginal Law Bulletin 10 at 11; Professor Daes, 'The Position of Indigenous People in National Constitutions Conference Report' (paper presented at the Council for Aboriginal Reconciliation Constitutional Centenary Foundation, Canberra, June 1993). The Draft Declaration is not binding even after its adoption by the General Assembly. Article 3 of the Draft Declaration reflects article 1 (1) of the International Covenant on Civil and Political Rights and article 1 (1) of the International Covenant on Economic, Social and Cultural Rights adopted by the United Nations General Assembly in 1966 and entered into force in 1976. Other relevant articles of the Draft Declaration are 19 and 20. See also articles 4, 9, 21, 26 and 42.  7  political status a n d freely pursue their e c o n o m i c , social a n d cultural development.  Article 3 1 : Indigenous p e o p l e s , a s a specific form of e x e r c i s i n g their right to self-determination, have the right to a u t o n o m y or self-government in matters relating to their internal a n d local affairs, including culture, religion, education, information, m e d i a , health, housing, e m p l o y m e n t , s o c i a l welfare, e c o n o m i c activities, land a n d resources m a n a g e m e n t , environment a n d entry by n o n m e m b e r s , a s well a s w a y s a n d m e a n s for financing t h e s e a u t o n o m o u s functions. [ E m p h a s i s added].  A s c a n be s e e n from Article 31 of the Draft Declaration,  self-government is a  fundamental a s p e c t of the broader concept of self-determination.  I do not explore the right of self-determination in this thesis. In Australia, after the ratification of international treaties, enabling legislation must be p a s s e d before a n y international legal rights are incorporated into the d o m e s t i c legal s y s t e m . G i v e n the current political climate a n d the necessity for political will in order to i m p l e m e n t enabling legislation, the international a r e n a d o e s not provide a viable option for the implementation of self-government in Australia. Instead, I focus o n the c o m m o n law right of self-government. Importantly, the relationship between self-determination a n d self-government indicates that the recognition of the c o m m o n law right of selfg o v e r n m e n t is consistent with international h u m a n rights standards.  8  S e l f - m a n a g e m e n t is a term often u s e d in Australia to s u g g e s t that self-determination is being r e c o g n i s e d . T h e latest manifestation of s e l f - m a n a g e m e n t is the current policy of "practical reconciliation". S e l f - m a n a g e m e n t is a d e l e g a t e d right to m a k e d e c i s i o n s related to e c o n o m i c m a n a g e m e n t a n d g o v e r n m e n t expenditure. T h e Minister of Aboriginal Affairs e m p h a s i s e d that:  Aboriginal p e o p l e must understand that self-management m e a n s s p e n d i n g public m o n e y responsibly in w a y s w h i c h are a c c o u n t a b l e not only to the Aboriginal c o m m u n i t y as a w h o l e , but to the public at l a r g e .  18  A l t h o u g h self-government a n d self-management both involve the r e p o s s e s s i o n of d e c i s i o n - m a k i n g control by Aboriginal c o m m u n i t i e s , the fundamental point of difference is that self-government is an inherent right w h e r e a s s e l f - m a n a g e m e n t is a d e l e g a t e d right. A n inherent right s t e m s from A b o r i g i n a l law rather than a right that is d e l e g a t e d by P a r l i a m e n t or the s o v e r e i g n C r o w n .  T w o important c o n s e q u e n c e s flow from the inherent nature of self-government. First, it r e c o g n i s e s that Aboriginal law is fundamental in s h a p i n g the content a n d m a n n e r in w h i c h a right of self-government is e x e r c i s e d . T h i s m e a n s that A b o r i g i n a l c o m m u n i t i e s have the ability to m a k e d e c i s i o n s , u n i m p e d e d by g o v e r n m e n t regulation. In contrast, d e l e g a t e d rights, like self-management, are rights d e r i v e d  18  Christine Fletcher, Aboriginal Politics: Intergovernmental Relations (Carlton: Melbourne University Press, 1992) at 10.  9  from the s o v e r e i g n C r o w n . T h e s e rights have b e e n granted a n d therefore m a y also be withdrawn.  T h e s e c o n d important c o n s e q u e n c e of the inherent nature of self-government is that it a c k n o w l e d g e s historical w r o n g s suffered by Aboriginal peoples, revalues A b o r i g i n a l culture a n d e m p o w e r s marginalised Aboriginal c o m m u n i t i e s in their m o v e towards self-determination.  Therefore, although structurally, self-government a n d the current  self-management  d i s c o u r s e m a y a p p e a r similar, the effect o n the current p o w e r i m b a l a n c e is not c o m p a r a b l e . A n inherent right directly a d d r e s s e s historical w r o n g s a n d the underlying basis of the current p o w e r i m b a l a n c e . A delegated right d o e s not a d d r e s s these issues.  F r o m t h e s e definitions, it c a n be s e e n that self-government is distinct from both selfdetermination a n d self-management. Self-government a d d r e s s e s the fact that there is more than o n e c o m p l e t e legal s y s t e m operating within Australia: the A u s t r a l i a n legal s y s t e m a n d Aboriginal legal s y s t e m s . B e c a u s e t h e s e legal s y s t e m s all o p e r a t e in the s a m e g e o g r a p h i c a l s p a c e , they n e c e s s a r i l y overlap. Self-government is essentially the c h a n n e l of c o m m u n i c a t i o n between two legal s y s t e m s . It is the legal m e c h a n i s m by w h i c h the A u s t r a l i a n legal s y s t e m r e c o g n i s e s the e x i s t e n c e a n d operation of Aboriginal legal s y s t e m s . T h e inherent right of self-government a c k n o w l e d g e s that Aboriginal p e o p l e s are entitled to control matters important to  10  their nations without intrusive interference.  19  It involves the fair and r e a s o n a b l e  transition from g o v e r n m e n t limitations i m p o s e d o n Aboriginal c o m m u n i t i e s a n d individuals to a m o d e r n , c o m m u n i t y b a s e d form of g o v e r n m e n t .  20  H o w e v e r , the  formal legal position is that only o n e legal s y s t e m o p e r a t e s in Australia. T h e doctrine of self-government requires the A u s t r a l i a n legal s y s t e m to s e e s o m e t h i n g it h a s previously b e e n incapable of s e e i n g : Aboriginal law.  METHODOLOGY  In this thesis, I argue that the recognition of a n inherent Aboriginal right of selfg o v e r n m e n t is of crucial importance to Australia. I c o n s i d e r the potential for establishing a n Aboriginal right of self-government a s part of A u s t r a l i a n c o m m o n law. S i n c e self-government h a s not b e e n c o n s i d e r e d in depth in Australia, in d e v e l o p i n g this argument, I c o n s i d e r legal d e v e l o p m e n t s in C a n a d a .  2 1  A l t h o u g h Australia h a s a different legislative a n d constitutional structure to C a n a d a , h a s never s i g n e d treaties with indigenous p e o p l e s a n d d o e s not h a v e a  19  Canada, Report of the Royal Commission on Aboriginal Peoples: Renewal: A Twenty-Year Commitment, vol. 5 (Ottawa, Canadian Communication Group, 1996) at 1 - 2; Judy Pearsall & Bill Trumble (eds) The Oxford English Reference Dictionary, 2nd ed,- (Oxford: Oxford University Press, 1996).  2 0  Bill Henderson, "A Brief Introduction to Aboriginal Law in Canada" (1996) at <http://www.bloorstreet.com/200block/brintro.htm>.  21  In this thesis, I use the term "Aboriginal" to refer to Aboriginal and Torres Strait Islander peoples in Australia. In contrast, I use the term "aboriginal" to refer to the aboriginal peoples of Canada, including First Nations, Inuit and Metis.  11  constitutional provision c o m p a r a b l e to section 35(1) of the Constitution Act  1982,  22  a s in C a n a d a , Aboriginal p e o p l e s h a v e o c c u p i e d the land a s s o v e r e i g n selfgoverning p e o p l e s prior to the assertion of sovereignty by the British C r o w n , c u s t o m a r y law h a s b e e n r e c o g n i s e d by the A u s t r a l i a n legal s y s t e m a n d c o m m o n law native title is substantially similar to the C a n a d i a n c o n c e p t of aboriginal t i t l e .  23  M o r e o v e r , in interpreting section 35(1) a n d determining the content of Aboriginal rights, C a n a d i a n courts must have regard to the c o m m o n law. Aboriginal rights a n d title are c o m m o n law rights that w e r e g i v e n constitutional status in 1982. Therefore, section 3 5 jurisprudence that interprets c o m m o n law rights that h a v e d e v e l o p e d from colonial c o m m o n law is relevant to the interpretation of A u s t r a l i a n c o m m o n law rights that h a v e also d e v e l o p e d from British colonial c o m m o n law. S o , despite constitutional and legislative differences, Australia c a n look to C a n a d a for the judicial r e a s o n i n g on the s o u r c e and continued e x i s t e n c e of the right of self-government under the c o m m o n law that the two countries s h a r e .  In C h a p t e r 2, I c o n s i d e r the problems that h a v e a p p e a r e d to prevent the recognition of self-government in Australia. This includes a lack of treaty m a k i n g and the rejection of absolute Aboriginal sovereignty by the High Court. I c o n s i d e r the c o n c e p t of sovereignty a n d distinguish between absolute sovereignty that exists in opposition to Australian sovereignty a n d modified sovereignty that is not incompatible with A u s t r a l i a n sovereignty. U s i n g the c o n c e p t of modified sovereignty a s the b a s i s under  2 2  Section 35(1) states, "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."  2 3  See Kent, McNeil Common Law Aboriginal Title (Oxford: Clarendon Press, 1989).  12 w h i c h self-government continues to exist in Australia, I a n a l y s e a series of High Court c a s e s , a n d c o n c l u d e that Aboriginal self-government, a s o p p o s e d to absolute sovereignty, has not b e e n c o n s i d e r e d , let alone rejected, by A u s t r a l i a n courts.  In C h a p t e r 3, I c o n s i d e r the colonial origins of the c o m m o n law doctrine of selfgovernment. I e x a m i n e the articulation of this doctrine by M a r s h a l l C J in Worcester v Georgia  24  and c o n s i d e r its differing treatment in A u s t r a l i a a n d C a n a d a . I c o n c l u d e  that self-government did form part of the colonial c o m m o n law at the time it w a s imported into Australia.  In C h a p t e r 4, I a n a l y s e the revolutionary High Court d e c i s i o n in Mabo (No. 2) a n d the s u b s e q u e n t native title d i s c o u r s e . I c h a l l e n g e the manufactured division that has b e e n drawn between land rights a n d sovereignty. I refer to two i n s t a n c e s within native title jurisprudence that indicate the recognition of i n s t a n c e s of self-government a s a n e c e s s a r y c o m p o n e n t of native title. T h e s e i n s t a n c e s illustrate that the recognition of c o m m o n law self-government will not fracture the skeleton of the A u s t r a l i a n legal s y s t e m .  2 5  In C h a p t e r 5 , I c o n s i d e r the myth that Australia is not a legally pluralistic society. B y referring to a series of S u p r e m e Court of N e w S o u t h W a l e s d e c i s i o n s d e c i d e d in the early colonial period, I indicate that at the time of colonisation, British law did  2 4  31 U.S. (6 Pet.) 515 (1832).  2 5  This is a reference to Justice Brennan's infamous quote in Mabo (No. 2).  13 r e c o g n i s e the existence of Aboriginal law. This recognition, w h i c h h a s continued throughout the d e v e l o p m e n t of the c o m m o n law, a m o u n t s to a recognition of legal pluralism. I argue that the recognition of self-government is n e c e s s a r y to a d d r e s s this legal plurality.  Finally, in C h a p t e r 6, I c o n c l u d e that the Australian c o m m o n law c a n , a n d s h o u l d , r e c o g n i s e the existence of a n inherent right of Aboriginal self-government.  14  Chapter Two  ABORIGINAL SOVEREIGNTY  Prior to the British colonisation of Australia, A b o r i g i n a l p e o p l e s e x e r c i s e d s o v e r e i g n authority o v e r their lands a n d populations. Despite the impact of colonisation a n d the a s s e r t i o n of British sovereignty o v e r Australia, Aboriginal p e o p l e s retain modified sovereignty within Australia. A b o r i g i n a l p e o p l e s r e m a i n entitled to e x e r c i s e jurisdiction o v e r their lands a n d people a s an e x e r c i s e of the inherent right of selfgovernment.  T h i s is true despite the fact that o v e r the last thirty years, questions of the continuing e x i s t e n c e of Aboriginal sovereignty h a v e c o m e before A u s t r a l i a n courts o n a n u m b e r of o c c a s i o n s . O n all o f t h e s e o c c a s i o n s , the Court d e n i e d the continuing e x i s t e n c e of A b o r i g i n a l sovereignty. T h e two major c a s e s rejecting Aboriginal sovereignty w e r e brought before the High C o u r t by Aboriginal plaintiffs, both of the Wiradjuri nation a n d in fact, brother a n d sister. T h e first major c a s e , brought by P a u l C o e , w a s rejected by the High Court in Coe v Commonwealth  (1979) ("Coe (No. 7 / ) .  1  The  s e c o n d major c a s e , brought by Isabelle C o e after the landmark d e c i s i o n in Mabo  1  (1979) 24 ALR 118.  15 (No. 2), w a s also rejected by the High Court in Coe v Commonwealth 2  (1993) ("Coe  (No. 2J").  3  In fact, in t h e s e c a s e s the Court rejected ambitious c l a i m s of o v e r a r c h i n g Aboriginal sovereignty, interpreting Aboriginal sovereignty a s n e c e s s a r i l y a d v e r s e to that of the C r o w n . T h e term sovereignty, however, is c o m p l e x a n d has multiple m e a n i n g s . T h e 4  High C o u r t ' s rejection of Aboriginal sovereignty relied on a notion of sovereignty that required the e x i s t e n c e of a s e p a r a t e state r e c o g n i s a b l e by international law. But there are c o n c e p t s of sovereignty that do not require a n independent state r e c o g n i s a b l e by international law. Aboriginal sovereignty should be properly c o n c e i v e d as modified sovereignty that is not in opposition to the Australian state. S u c h a notion of A b o r i g i n a l sovereignty, which continues in a modified form after colonial contact, is a s o u r c e of the c o m m o n law right of self-government that continues to exist today. B y distinguishing between absolute sovereignty a n d modified sovereignty, it b e c o m e s apparent that t h e s e High Court c a s e s rejected absolute sovereignty but did not consider, let a l o n e reject, the continuing e x i s t e n c e of modified Aboriginal sovereignty.  ABORIGINAL S O V E R E I G N T Y PRIOR T O C O L O N I A L C O N T A C T  2  Mabo v Queensland (1992) 175 CLR 1.  3  (1993) 118 ALR 193.  A  See Jacobs J in Coe (No. 1) above n 1 at 133 and Mason CJ in Coe (No. 2) above n 3 at 200.  16  Prior to the arrival of the British in A u s t r a l i a , Aboriginal p e o p l e s w e r e sovereign, selfgoverning nations. T h e y o w n e d a n d o c c u p i e d the land and g o v e r n e d their s o c i e t i e s a c c o r d i n g to unique s y s t e m s of A b o r i g i n a l c u s t o m a r y law. H o w e v e r , as H e n r y R e y n o l d s a s k s , w e r e Aboriginal tribes s o v e r e i g n under the law of nations in 1 7 7 0 ?  5  R e l y i n g o n Christian W o l f f s "The L a w of Nations", o n e of the definitive w o r k s o n international law in the mid-eighteenth century, R e y n o l d s a r g u e s that W o l f f s work directly contradicts m a n y of the a s s u m p t i o n s underpinning the legal b a s i s a n d justification for the British annexation of A u s t r a l i a . C o n c e d i n g that colonial j u d g e s 6  m a y not have b e e n a w a r e of W o l f f s work, R e y n o l d s c o n s i d e r s the work of W o l f f s student, E m m e r i c h de Vattel, w h o w a s known to the colonial judiciary.  Reynolds  7  points out that Vattell's work is internally inconsistent. H e criticises judicial reliance o n this logically problematic work to justify the colonisation of A u s t r a l i a .  8  Reynolds  o b s e r v e s that Vattel is:  ... more frequently cited than any other writer b e c a u s e he is more a c c e s s i b l e , a n d b e c a u s e his doctrines are so loosely e x p r e s s e d that it is e a s y to find in his book d e t a c h e d p a s s a g e s in favour of either s i d e of the q u e s t i o n .  5  9  Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State and Nation (Sydney: Allen & Unwin, 1996) at 39. ("Reynolds: Aboriginal Sovereignt/).  e tod at 52. 7  Ibid. This can be seen in Burton J's judgment in R v Murrell (1836) 1 Legge 72. Reynolds argues that Justice Burton's casenotes show that he was "totally dependent on Vattel whose book may have been the only work of international law available to him". The work was Emmerich de Vattel, The Law of Nations of the Principles of Natural Law: Applied to the Conduct and to the Affairs of Nations and of Sovereigns (vol. 3,1758 ed) book 1.  s Ibid. 9  Ibid referring to R. Wildmand, Institutes of International Law, (London, 1849).  17  R e y n o l d s notes that c o m m e n t a t o r s often insist that questions that c h a l l e n g e the validity a n d justice of colonisation must be c o n s i d e r e d in light of the legal rules at the time, o n the a s s u m p t i o n that t h e s e legal rules support the c o l o n i s e r s . But, a s R e y n o l d s argues, international law did not in fact support the c o l o n i s e r s . R e y n o l d s c o n c l u d e s that:  ... had the law b e e n applied with more impartiality it w o u l d h a v e b e e n p o s s i b l e to a c c o r d to the A b o r i g i n e s both land o w n e r s h i p a n d sovereignty. T h e individual tribes, although very small, o c c u p i e d discrete territories, w h i c h they had d e f e n d e d against interlopers. T h e y had existed for a long time a n d they w e r e civil societies ih w h i c h law w a s normally o b e y e d a n d t r a n s g r e s s i o n w a s p u n i s h e d . T h e y had sovereignty a c c o r d i n g to the law of the time a n d performed what later writers a s s u m e d to be the fundamental roles of government, w h i c h S a l m o n d in his c l a s s i c a l study Jurisprudence  defined a s  w a r a n d the administration of justice - defence against external e n e m i e s o n the o n e hand a n d o n the other, the ' m a i n t e n a n c e of p e a c e a b l e a n d orderly relations within the c o m m u n i t y i t s e l f .  10  A u s t r a l i a n courts have recently indicated support for Henry R e y n o l d ' s position that A b o r i g i n a l people w e r e s o v e r e i g n prior to British colonisation. Australian courts have  lbida\  w  55.  18  a c c e p t e d Aboriginal p e o p l e a s the first o c c u p a n t s of the l a n d .  11  C o u r t s h a v e also  a c c e p t e d that prior to colonisation Aboriginal people w e r e g o v e r n e d by laws. In Milirrpum  v Nabalco,  s y s t e m of l a w .  n  1 3  B l a c k b u r n J r e c o g n i s e d that the Y o l g n u w e r e g o v e r n e d by a  Further, in R v Walker,™  the N e w S o u t h W a l e s Court of Criminal  A p p e a l admitted a s a matter of historical fact that before a n d after 1770, the N u n e k e l p e o p l e o c c u p i e d S t r a d b r o k e Island a n d had a s y s t e m of government a n d l a w s .  1 5  Finally, the High Court a p p e a r s to h a v e a c c e p t e d prior Aboriginal sovereignty in Mabo (No. 2), w h e r e B r e n n a n J stated:  T h e Pacific  Islanders Protection  Acts of 1872 and 1875 (Imp.) w e r e e n a c t e d  to stamp out blackbirding a n d to confer o n a H i g h C o m m i s s i o n e r ' s C o u r t jurisdiction o v e r British subjects in the islands of the W e s t e r n Pacific. H o w e v e r , the 1875 A c t e x p r e s s l y d i s a v o w e d "any claim o r title w h a t s o e v e r to d o m i n i o n or sovereignty o v e r a n y s u c h islands or places" a n d a n y intention "to derogate from the rights of the tribes or people inhabiting s u c h islands or p l a c e s , or of chiefs o r rulers thereof, to s u c h sovereignty o r dominion". [Emphasis added].  16  11  Mabo (No. 2) above n 2.  12  Milirrpum v Nabalco (1971) 17 F L R 1 4 1 .  1  3 /b/dat 268.  i"Ri/Wa/ter[1989]2Qd. R 7 9 15  Ibid at 80. The High Court in Walker v New South Wales (1994) 182 CLR 45 did not question this finding.  16  Above n 2 at 19.  19 A u s t r a l i a n courts h a v e a c c e p t e d that A b o r i g i n a l p e o p l e w e r e the first o c c u p a n t s , h a d a s y s t e m of g o v e r n m e n t a n d laws a n d e x e r c i s e d "sovereignty or d o m i n i o n " o v e r Australia. It is not contentious that Aboriginal people w e r e living o n the land now k n o w n a s Australia, g o v e r n e d by law, before British c o l o n i s a t i o n . T h e y o w n e d a n d o c c u p i e d the land a n d g o v e r n e d their societies a c c o r d i n g to unique s y s t e m s of A b o r i g i n a l c u s t o m a r y law. Therefore, prior to the British o c c u p a t i o n of Australia, A b o r i g i n a l p e o p l e s w e r e s o v e r e i g n , self-governing p e o p l e s . T h e q u e s t i o n then b e c o m e s , what exactly w a s the impact of colonisation o n Aboriginal s o v e r e i g n t y ?  T H E IMPACT O F COLONISATION ON ABORIGINAL S O V E R E I G N T Y  T h e r e are essentially three s c h o o l s of thought regarding the impact that British colonisation and the assertion of C r o w n sovereignty had o n the sovereignty of A b o r i g i n a l people in Australia. T h e three positions variously a s s e r t that colonisation did not affect Aboriginal sovereignty, colonisation impacted a n d modified Aboriginal sovereignty a n d colonisation extinguished Aboriginal sovereignty.  T h e first s c h o o l of thought a d v o c a t e s that Aboriginal sovereignty r e m a i n s wholly intact despite colonisation in Australia. This argument is b a s e d o n a c h a l l e n g e to the legal fiction of terra nullius, applied explicitly in Australia a n d purportedly rejected in 1992 in the High C o u r t d e c i s i o n of Mabo (No. 2)?  1  17  If the doctrine of d i s c o v e r y and  Terra nullius means "land belong to no-one" or "empty land". This doctrine was applied retrospectively to Australia to justify the classification of Australia as a "settlement" under the doctrine of discovery and the subsequent usurpation of  20  terra nullius w e r e not applied correctly, then the assertion of C r o w n sovereignty is questionable. However, despite the merits of this position, the series of H i g h Court d e c i s i o n s , beginning with Coe (No. 1), explicitly reject notions of Aboriginal sovereignty that c h a l l e n g e C r o w n sovereignty.  T h e s e c o n d school of thought is b a s e d upon a c o n c e p t of modified sovereignty. It is also referred to a s "shared", "merged" or "diminished" sovereignty. This position r e c o g n i s e s that Aboriginal sovereignty continues to exist a n d remains in a modified form despite the assertion of C r o w n sovereignty. This is the position t a k e n by the C a n a d i a n R o y a l C o m m i s s i o n o n Aboriginal P e o p l e s ( " R C A P " ) . It is also consistent 1 8  with Aboriginal v o i c e s that h a v e long a s s e r t e d Aboriginal sovereignty. It is o n this b a s i s that a right of self-government exists. This is the position I take in d e v e l o p i n g the argument for the c o m m o n law recognition of an inherent right of selfgovernment.  In d e v e l o p i n g this position, I respond to a third s c h o o l of thought that d e n i e s the continued e x i s t e n c e of Aboriginal sovereignty. T h i s w a s the position consistently t a k e n by g o v e r n m e n t in C a n a d a and r e m a i n s the position of government in  18  sovereignty. For a challenge to the standard interpretation of Mabo (No. 2) as constituting a rejection of terra nullius, see David Ritter, "The Rejection of Terra Nullius in Mabo: A Critical Analysis" (1996) 18 Sydney L Rev 5. See also Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. See Canada, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, vol 2:2 (Ottawa: Canada Commuication Group, 1996) ("Restructuring the Relationship"); Canada, Partners in Confederation: Aboriginal Peoples, Self-Government and the Constitution (Ottawa: Canada Communication Group, 1993) ('Partners in Confederation"). See also the concept of diminished sovereignty and domestic dependent nations articulated by Marshall CJ in Johnson v Mcintosh 21 U.S. (8 Wheat) 543 (1823), Cherokee Nation v Georgia 30 U.S. (5 Pet.) 1 (1831) and Worcester v Georgia 31 U.S. (6 Pet.) 515 (1832). These cases are collectively referred to as the "Marshall trilogy".  21 Australia.  19  It is also the position often, but mistakenly, attributed to the High C o u r t of  Australia. P r o p o n e n t s of this position a r g u e that the assertion of C r o w n s o v e r e i g n t y completely extinguished Aboriginal sovereignty. H o w e v e r , if this did not c o m p l e t e l y extinguish Aboriginal sovereignty, the Commonwealth  Constitution  20  exhaustively  divided all g o v e r n m e n t a l p o w e r s a n d therefore there is no constitutional s p a c e for Aboriginal sovereignty or Aboriginal self-government. T h e s e are  ill-founded,  unsubstantiated assertions that I c o n s i d e r a n d reject in this chapter.  T h e fundamental difference between t h e s e three s c h o o l s of thought, apart from the o b v i o u s d i s c r e p a n c i e s regarding the impact of colonisation o n Aboriginal sovereignty, is differing interpretations of the term "sovereignty". In order to clearly delineate t h e s e positions, the c o n c e p t of sovereignty must be e x a m i n e d . T w o prominent a n d contemporary sovereignty scholars, F . H . Hinsley a n d Hideaki S h i n o d a , provide a n introductory understanding of the complexity a n d d y n a m i c nature of s o v e r e i g n t y .  21  S O V E R E I G N T Y : MYRIAD M E A N I N G S  19  For a good summary of these arguments, made by the then Leader of the Opposition and the current Premier of British Columbia, and their rejection, see Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333 at 351 355.  20  Commonwealth of Australian Constitution Act 1900 ("Commonwealth Constitution").  2 1  The texts I consider are F.H. Hinsley, Sovereignty, 2 ed. (Cambridge: Cambridge University Press, 1986) and Hideaki Shinoda, Re-Examining Sovereignty (London: MacMillan Press, 2000). See also Hans Kelsen "Sovereignty and International Law" in W.J. Stankiewicz, In Defense of Sovereignty (London: Oxford University Press, 1969) at 115 and K.W.B. Middleton, "Sovereignty in Theory and Practice" in W.J. Stankiewicz, In Defense of Sovereignty'(London: Oxford University Press, 1969) at 132. n d  22  Sovereignty  is the most glittering and controversial  doctrine and practice of public international  notion in the history,  law. Its meaning  throughout the history of law and of the state since medieval  S c h o l a r s d e b a t e the origin of the c o n c e p t of s o v e r e i g n t y .  23  has  oscillated  times  22  However, as F . H . Hinsley  notes, the s e m a n t i c difficulties a s s o c i a t e d with the term are e x a c e r b a t e d by the t e n d e n c y to a s s u m e that w h e n a n ancient term is still in use, its m e a n i n g has not changed over time.  24  Hinsley s u g g e s t s that:  T h e term sovereignty originally a n d for a long time e x p r e s s e d the idea that there is a final a n d absolute authority in the political c o m m u n i t y .  25  H i d e a k i S h i n o d a a r g u e s that the notion of sovereignty a p p e a r e d in E u r o p e in order to represent the privileged status of kings a n d that it w a s m u c h later that sovereignty w a s d i s c u s s e d in c o n n e c t i o n with states. S h i n o d a s e e s the term "sovereignty" a s e m a n a t i n g from the d e c l i n e of the s e n s e of C h r i s t e n d o m . H e e x p l a i n s that in the Middle A g e s , "sovereign" w a s u s e d not in its m o d e r n s e n s e , but to m e a n "superior" a n d that a n y superior w a s s o v e r e i g n .  26  In E n g l a n d , the E n g l i s h w o r d "souerein" or  2 2  Steinberger, "Sovereignty" in Encyclopedia for Public International Law, vol. 4 (Elsevier: North-Holland, 2000) at 500.  2 3  See F.H. Hinsley, Sovereignty, 2  n d  ed. (Cambridge: Cambridge University Press, 1986) at 22 for a.discussion on the  disagreement as to whether it originated in classical Greece or Western Europe in the 13 century. ,h  2  "/b/c/at22.  25  Ibid at 1. For elaboration, see ibid at 26.  2 6  Hideaki Shinoda, Re-Examining Sovereignty (London: MacMillan Press, 2000) at 9 referring to Bertrand de Jounveney into the Political Good, Sovereignty: An Inquiry into the Political Good, trans. By J.F. Huntingdon (Cambridge: Cambridge University Press, 1957) at 171.  23 "soverayne", w h i c h had derived from."super", acquired the letter "g" by a s s o c i a t i o n with " r e i g n i n g " . D e s p i t e d e b a t e s a s to the exact origin of the w o r d or its particular 27  m e a n i n g at any g i v e n time, S h i n o d a , in contrast to Hinsley, a r g u e s that:  Before the sixteenth century the idea of sovereignty w a s not e s t a b l i s h e d a s a principle of the political community, a n d of international society. O n l y in the p r o c e s s of modernity did people consciously  understand it a s s u c h . It w a s in  this p r o c e s s that the idea of state sovereignty took s h a p e in people's m i n d s a n d constituted their thoughts a n d b e h a v i o u r s .  28  O t h e r s c h o l a r s refer to Aristotle's concept of the s u p r e m e power a s a n early definition of sovereignty. Aristotle u s e d the term to identify the s u p r e m e authority within a c o m m u n i t y .  29  T h i s definition d o e s not a s s o c i a t e sovereignty with the state. It  is also consistent with its popular contemporary definition referring to the status under w h i c h a p e o p l e h a v e effective political control o v e r the matters that c o n c e r n them.  3 0  U s i n g this-broader definition, sovereignty is the authority to g o v e r n a  community, w h i c h m a y be absolute or limited.  Despite the variety of definitions a n d the d e b a t e regarding the origins of the term, sovereignty is predominantly a s s o c i a t e d with the state a n d international legal norms.  27  28  Ibid at 9 referring to Walter W. Skeat, An Etymological Dictionary of the English Language, new ed. (Oxford, Clarendon Press, 1924) at 584. /fo/d at 10 -11.  2 9  Above n 22 at 503.  3 0  Garth Nettheim, "Sovereignty and Aboriginal Peoples" (1991) 2:53 Aboriginal Law Bulletin 4 at 5.  24 T h i s association, an association the High Court relied on, must be critically e x a m i n e d in order to understand why this is often co n sid ered to be the only definition of sovereignty.  25  International Law, Sovereignty and the State  T h e Peace of Westphalia in 1648 is often referred to a s the beginning of the traditional international s y s t e m . A n important c o n c e p t in this state-centric s y s t e m is sovereignty. Sovereignty, a s it h a s b e e n interpreted from the Peace of Westphalia,  is  c a p a b l e of e x i s t e n c e only within societies in w h i c h there is a state, w h e r e a state is a b o d y that is recognisable by international law a s a n international legal actor.  S h i n o d a distinguishes between "sovereignty" a n d "state sovereignty", r e c o g n i s i n g there are multiple notions of sovereignty. H e a r g u e s , "the study of sovereignty is the study of an i d e a " .  31  S h i n o d a defines state sovereignty a s a notion in c o n t e m p o r a r y  international law of a juristic p e r s o n that includes a government, p e r m a n e n t population, defined territory a n d the capacity to enter relations with other s t a t e s .  32  Hinsley, however, limits the notion of sovereignty to state sovereignty:  T h e c o n c e p t of sovereignty will not be found in societies in w h i c h there is no state.  33  / 3 1  Above n 26 at 3.  32  Ibid at 7. Shinoda's definition of state reflects Article 1 of the Montevideo Convention on Rights and Duties of States, 26 December 1933.  3 3  Above n 23 at 22.  26 Hinsley t a k e s a conventional a p p r o a c h to sovereignty. H e regards the notion of state a s a n a d v a n c e d form of society. It is only at the point w h e r e a society a d v a n c e s to a state that the idea of sovereignty e m e r g e s . T h i s c o n c e p t of sovereignty d e p e n d s o n w h e t h e r the state o v e r c o m e s the resistance of "customary society". H i n s l e y relies on the a s s u m p t i o n that there is a n evolutionary transition from a stateless society to a society ruled by a state a n d that the state only o c c u r s in " a d v a n c e d c o m m u n i t i e s " .  34  H e d e c l a r e s that there is an:  ... a b s e n c e of a n y notion of sovereignty in the primitive s t a g e s of political societies.  35  In describing the difference between primitive a n d a d v a n c e d c o m m u n i t i e s , he refers to Aboriginal Australia:  ... e v e n the A u s t r a l i a n aborigines w h o s e various c l a n s meet together from time to time in religious a s s e m b l i e s w h i c h have s o m e p o w e r to regulate disputes between the g r o u p s ... may be regarded a s being a r e c o g n i z a b l e if impermanent government s y s t e m , a n d thus a r e c o g n i z a b l e if minimal v e r s i o n of the s t a t e .  3 4  /b/d at 3.  35 /b/d at 2. 36  Ibid at 5.  36  27  Despite c o n c e d i n g that A u s t r a l i a n Aboriginal societies m a y be c o n s i d e r e d a s a state, he d e n i e s that sovereignty could exist in s u c h a primitive society or primitive state w h e r e the state has not o v e r c o m e the resistance of c u s t o m a r y society. Hinsley a r g u e s that the difference between primitive a n d a d v a n c e d societies is a s qualitatively d e c i s i v e as the difference between a m a n a n d a c o c k r o a c h .  T o a r g u e that the stateless society and the society ruled by the state are essentially similar in respect of their political institutions is no more helpful in the field of political s c i e n c e than would be a statement in the field of natural s c i e n c e that a m a n and a c o c k r o a c h are essentially in the s a m e family b e c a u s e they both have legs a n d need to e a t .  37  H i n s l e y ' s argument is b a s e d o n Eurocentric historical d e t e r m i n i s m a n d social D a r w i n i s m . S h i n o d a r e s p o n d s to Hinsley, arguing that sovereignty d o e s not rely o n the evolution of primitive s o c i e t y . . H e rejects the interpretation that African stateless 38  s o c i e t i e s are merely premature forms of modern E u r o p e a n s t a t e s .  39  S h i n o d a rejects  this a s s u m p t i o n a s archaic a n d a r g u e s that E u r o p e a n domination is a product of politics a n d power. I a g r e e with S h i n o d a . Hinsley's distinction between primitive a n d a d v a n c e d c o m m u n i t i e s is unacceptable in contemporary society w h e r e s o c i a l D a r w i n i s m has b e e n adamantly rejected.  37  Ibid at 7. For the full argument, see ibid at 4- 7 .  3 8  Above n 26 at 3 referring to above n 23 at 1 -26.  39  Ibid at 4  28 Contemporary Notions of Sovereignty  It is perplexing that sovereignty a n d state are c o n c e i v e d a s interconnected, i n s e p a r a b l e notions g i v e n the divergent historical understandings of the term "sovereignty". A l t h o u g h there is a strong history of relationship between t h e s e two terms, the c o n t e m p o r a r y understanding is often more in line with its ancient u s a g e , particularly the definition e x p o u n d e d by Aristotle, than with its use in the W e s t p h a l i a n legal s y s t e m . T h e r e h a v e b e e n two recent c h a l l e n g e s to this notion of state sovereignty: globalisation and indigenous rights m o v e m e n t s .  First, the increasing i n t e r c o n n e c t e d n e s s of the world a n d d e c r e a s i n g border controls h a v e resulted in s c h o l a r s questioning whether the notion of sovereignty r e m a i n s useful in a n ever-increasingly g l o b a b l i s e d w o r l d .  40  A s international bodies, s u c h a s  the United N a t i o n s a n d the E u r o p e a n U n i o n , increase in power, a tension d e v e l o p s b e t w e e n state sovereignty a n d the ultimate d e c i s i o n - m a k e r s . S t a t e s b e c o m e b o u n d by international regulations a n d at times are forced to c o m p l y with international legal norms. If sovereignty m e a n s that the state is the ultimate d e c i s i o n - m a k e r , then globalisation h a s p l a c e d a limit on sovereignty.  S e c o n d l y , Aristotle's broader definition of sovereignty that d o e s not rely on a state is consistent with the m a n n e r in w h i c h Aboriginal people in Australia often use the term  4 0  Dianne Otta, "A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia" [1995] 21 Syracuse Journal of International Law & Commerce 65. More generally, see Report of the Commission on Global Governance, Our Global Neighbourhood (Oxford: Oxford University Press, 1995).  29  sovereignty. Aboriginal people, including elders, leaders a n d activists, often refer to their sovereignty or d e s c r i b e t h e m s e l v e s a s s o v e r e i g n p e o p l e s .  For example,  41  L a r i s s a Behrendt, at the Indigenous B a r A s s o c i a t i o n conference in Ottawa in 2 0 0 0 , stated:  It is p e r h a p s b e c a u s e w e have never b e e n a c k n o w l e d g e d a s a s o v e r e i g n p e o p l e that the notion of sovereignty has b e c o m e so important to us. W e u s e the term "sovereignty" in a w a y that has m a d e the word our o w n , a n e x p r e s s i o n of the very particular, quite unique w a y in which w e s e e our future. In a n s w e r to the question "What do y o u want?" m a n y Indigenous p e o p l e will reply "First w e h a v e to h a v e our sovereignty r e c o g n i s e d " .  42  D e s p i t e the c o m p l e x i t i e s of this sovereignty debate, three deductions m a y be d r a w n . First, sovereignty is a c o m p l e x , d y n a m i c term that has b e e n a s s o c i a t e d with different m e a n i n g s o v e r centuries. S e c o n d l y , there is a t e n d e n c y to a s s o c i a t e sovereignty with the state, a s o c c u r s in international law. Finally, sovereignty is not limited, historically or contemporarily, to notions of the state.  4 1  This is particularly evident in Michael Mansell's statements. See Michael Mansell, "They Can Keep Their Justice - We'll Keep Our Country: the A P G View" (paper presented to the Aboriginal Justice Issues conference in Cairns, June 1992) [unpublished] at 9. The A P G is the Aboriginal Provisional Government. See also Michael Mansell, "The Bicentenary and Aboriginal Sovereignty" (1988) Law Institute Journal 1206; Noel Pearson, "Reconciliation To Be or Not To Be: Separate Aboriginal Nationhood or Aboriginal Self-Determination and Self-Government Within the Australian Nation?" (1993) 3:61 Aboriginal Law Bulletin 14; Geoff Clark, "Launch of ATSIC Treaty Documents" (lecture presented at Parliament House in Melbourne, 8 May 2001) [unpublished] at 12.  4 2  Larissa Behrendt, "Slicing the Circle: Treaty, Native Title, Aboriginal Sovereignty and the Compartmentalizing of Indigenous Rights in Australia" (Paper presented to the Indigenous Bar Association Conference in Ottawa, 2000) [unpublished] at 4. See also Australia, Senate Standing Committee on Constitutional and Legal Affairs: Two Hundred Years Later...Report on the Feasibility of a Compact or 'Makaratta' between the Commonwealth and Aboriginal People. Parliamentary Paper No. 107/1983. (Canberra: Australian Government Publishing Services, 1983).  30  Moving Beyond the Realm of State Sovereignty  In order to clearly distinguish absolute state sovereignty from continuing but modified A b o r i g i n a l sovereignty, I c o n s i d e r the notion of modified sovereignty that w a s c o m p r e h e n s i v e l y articulated by the R o y a l C o m m i s s i o n o n Aboriginal P e o p l e s ("RCAP").  4 3  R C A P s u m m a r i s e d the argument for the recognition of self-government.  At the time of E u r o p e a n contact, aboriginal p e o p l e s w e r e s o v e r e i g n a n d independent peoples, p o s s e s s i n g their o w n territories, political s y s t e m s and c u s t o m a r y laws. A l t h o u g h colonial rule modified this situation, it did not deprive aboriginal p e o p l e s of their inherent right of self-government, w h i c h formed an integral part of their cultures. T h i s right continued to exist, in the a b s e n c e of clear and plain legislation to the contrary. A l t h o u g h in m a n y c a s e s the right w a s curtailed a n d tightly regulated, it w a s n e v e r completely extinguished. [ E m p h a s i s a d d e d ] .  44  J u s t i c e Binnie a d o p t e d R C A P ' s argument that aboriginal sovereignty c o n t i n u e s to exist b e y o n d colonisation in a modified form, providing the foundation of the inherent 4 3  See Restructuring the Relationship above n 18 and Partners in Confederation above n 18. Restructuring the Relationship formed part of RCAP's final report. Partners in Confederation, a discussion paper, dealt with the original status of Aboriginal peoples and the effect of the Constitutional Act 1982. In describing the original status of Aboriginal people, reference was made to the recognition of Aboriginal law by the courts, particularly the 1867 decision of Connolly v Woolrich (1867) 11 LCJ197, the signing of treaties and the Royal Proclamation of 1763. R C A P then considered whether self-government was an Aboriginal right under section 35(1) of the Constitution Act 1982.  44  Restructuring the Relationship above n 18 at 202.  31  right of self-government, in the S u p r e m e Court of C a n a d a d e c i s i o n in Minister of National  (2001)  45  Revenue  v Grand Chief Michael  Mitchell also known as  Kanentakeron  Binnie J , writing for himself a n d Major J , introduced the c o n c e p t of "shared  sovereignty" between aboriginal people a n d the federal a n d provincial g o v e r n m e n t s in his dissenting judgment. A l t h o u g h R C A P refers to m e r g e d sovereignty a n d Binnie J to shared sovereignty, I use the term modified sovereignty to include both of t h e s e terms.  G r a n d C h i e f M i c h a e l Mitchell is a M o h a w k of A k w e s a s n e . A k w e s a s n e lies at the "jurisdictional epicentre of the St. L a w r e n c e R i v e r a n d straddles the C a n a d a - U n i t e d S t a t e s border, a s well a s provincial a n d state b o r d e r s . "  46  G r a n d C h i e f Mitchell  c r o s s e d the international border b e t w e e n the United S t a t e s a n d C a n a d a with g o o d s p u r c h a s e d in the United States. H e d e c l a r e d the g o o d s but a s s e r t e d that aboriginal a n d treaty rights e x e m p t e d him from paying duty. Mitchell w a s s e r v e d with a claim for unpaid duty a n d sought declaratory relief. T h e F e d e r a l Court, at first instance, held that he had a n aboriginal right to c r o s s the border freely without having to pay c u s t o m s duties on g o o d s destined for p e r s o n a l a n d c o m m u n i t y u s e a n d n o n c o m m e r c i a l trade with other First Nations. T h e F e d e r a l Court of A p p e a l affirmed a n aboriginal right to bring g o o d s into C a n a d a duty-free, subject to limitations b a s e d o n e v i d e n c e of the traditional range of M o h a w k trading. T h e S u p r e m e Court of  45  4 5  Minister of National Revenue v Grand Chief Michael Mitchell also known as Kanentakeron [2001] 1 S.C.R. 911.  tod at 915.  32 C a n a d a held that the aboriginal right h a d not b e e n e s t a b l i s h e d a n d that Mitchell must pay duty.  O n l y Justice Binnie c o n s i d e r e d the i s s u e of aboriginal sovereignty. H e noted that Mitchell did not dispute C a n a d i a n sovereignty but sought M o h a w k a u t o n o m y within the broader framework of C a n a d i a n sovereignty. H e classified the claim a s not a claim for freedom of movement, but rather a n aspiration to live a s if the international b o u n d a r y did not e x i s t .  47  H e stated:  If the principle of "merged sovereignty" articulated by the R o y a l C o m m i s s i o n o n Aboriginal P e o p l e s is to have any true m e a n i n g , it must include at least the idea that aboriginal and non-aboriginal C a n a d i a n s together form a s o v e r e i g n entity with a m e a s u r e of c o m m o n purpose a n d united effort. It is this n e w entity, a s inheritor of the historical attributes of sovereignty, with w h i c h existing aboriginal a n d treaty rights must be r e c o n c i l e d . T h e constitutional objective is reconciliation not mutual isolation. W h a t is significant is that the R o y a l C o m m i s s i o n itself s e e s aboriginal people a s full participants with n o n aboriginal p e o p l e s in a s h a r e d C a n a d i a n sovereignty. Aboriginal p e o p l e s do not stand in opposition to, nor are they subjugated by, C a n a d i a n sovereignty. T h e y are part of i t .  47  /b/dat915 - 916.  <* Ibid  aim.  48  33 In s u m m a r y , modified Aboriginal sovereignty r e c o g n i s e s that Aboriginal people w e r e s o v e r e i g n people prior to colonisation, but that colonisation h a s h a d a modifying a n d diminishing impact o n Aboriginal sovereignty a n d the ability to e x e r c i s e unlimited jurisdiction. Modified Aboriginal sovereignty r e c o g n i s e s that Aboriginal p e o p l e retain a n d e x e r c i s e governmental a n d jurisdictional p o w e r s . Therefore, in the context of Australia, modified Aboriginal sovereignty is simply the idea that Aboriginal p e o p l e retain at least s o m e sovereignty o v e r their traditional l a n d .  4 9  In this thesis, I use the term absolute sovereignty to d e s c r i b e sovereignty that requires a state a n d is grounded in the W e s t p h a l i a n international legal s y s t e m .  5 0  T h i s is distinguishable from modified sovereignty that exists independent of a state r e c o g n i s a b l e by international law.  SOVEREIGNTY CONSIDERED BY AUSTRALIAN C O U R T S  T h e High Court of Australia has rejected c l a i m s of absolute Aboriginal sovereignty in s e v e r a l c a s e s : Coe (No. 7 J ,  51  Wacando  Walker v New South Wales ( 1 9 9 4 ) .  v Commonwealth  (1981),  52  Coe (No. 2) a n d  53  4 9  Stephen Gray, "Planting the Flag or Burying the Hatchet: Sovereignty and the High Court Decision in Mabo v Queensland" (1993) 2 Griffith Law Review 39 at 63.  5 0  Unless otherwise indicated, absolute state sovereignty or Westphalian sovereignty are merely alternate expressions for absolute sovereignty.  51  In fact, the question of Aboriginal sovereignty came before the courts for the first time in the modern era in R v Wedge [1976] 1 NSWLR 581. In defending a murder charge, the defence argued that the court had no jurisdiction to hear the case. The New South Wales Supreme Court held that the Aboriginal people of Australia were not a sovereign people and were subject to New South Wales' law. Prior to this decision, in the 1830's, the New South Wales Supreme Court  34  T h e a c c e p t e d interpretation of these c a s e s , that the High Court rejected the e x i s t e n c e of Aboriginal sovereignty in a n y form w h a t s o e v e r in t h e s e c a s e s , must be c h a l l e n g e d . B y c o n s i d e r i n g the nature of the question before the Court, identifying the underlying a s s u m p t i o n s on w h i c h the High C o u r t relies and critically e x a m i n i n g s u b s e q u e n t interpretations, it b e c o m e s apparent that t h e s e c a s e s reject a b s o l u t e A b o r i g i n a l sovereignty. T h e s e c a s e s do not reject modified Aboriginal sovereignty, w h i c h provides the foundation for the recognition of a c o m m o n law inherent right of A b o r i g i n a l self-government.  C o e v Commonwealth  (No. 1) (1979)  P a u l C o e , a prominent Aboriginal lawyer a n d a c t i v i s t ,  54  i s s u e d a writ out of the H i g h  Court of Australia against the Australian a n d British G o v e r n m e n t s . C o e sought d e c l a r a t i o n s a n d relief, purportedly o n behalf of "the Aboriginal p e o p l e of Australia", for the o c c u p a t i o n , settlement a n d continued d e a l i n g in Australian lands by the A u s t r a l i a n a n d British G o v e r n m e n t s . In particular, he sought a declaration that all l a n d o c c u p i e d a n d u s e d by Aboriginal p e o p l e r e m a i n s "at the absolute c o m m a n d of  considered the existence of Aboriginal sovereignty in a trilogy of cases that considered the applicability of British criminal law to intra-Aboriginal disputes. For further details, see Chapter 5. 5 2  (1981) 148 CLR 1.  5 3  (1994) 182 CLR 45.  5 4  Paul Coe was formerly the Chairman of the Aboriginal Legal Service (NSW) and has always been very politically active. In January 1972, Paul Coe, Gary Foley and Dennis Walker announced the formation of the Black Panther Party of Australia. Coe was also involved in the establishment of the tent embassy. See David Hollingsworth, Race and Racism in Australia (Katoomba: Social Sciences Press, 1998) at 175.  35  the Aboriginal people free from interference" and that all legislation allowing for land transfers or mining be d e c l a r e d invalid. C o e also sought an injunction to prevent the G o v e r n m e n t from mining, a s well a s c o m p e n s a t i o n to "the Aboriginal nation" for the deprivation of proprietary a n d religious rights and for interference with their culture, religion, c u s t o m s , l a n g u a g e and w a y of l i f e .  55  C o e applied for leave to a m e n d the statement of claim. T h e p r o p o s e d a m e n d m e n t s a s s e r t e d Aboriginal sovereignty a n d invoked section 116 of the Constitution. ® 5  Commonwealth  " O n behalf of the Aboriginal c o m m u n i t y and nation of A u s t r a l i a " ,  57  C o e c l a i m e d Britain had wrongfully claimed sovereignty, p o s s e s s i o n a n d o c c u p a t i o n o v e r Australia. A n alternative statement of claim alleged that the p r o c l a m a t i o n s by C a p t a i n J a m e s C o o k in 1770 a n d C a p t a i n Arthur Phillip in 1788 a m o u n t e d to claims of c o n q u e s t a n d that therefore the radical title vested in the C r o w n w a s subject to the rights and interests of "the Aboriginal nation". T h e first defendant, Australia, filed an a p p e a r a n c e and the s e c o n d defendant, G r e a t Britain, applied to have the statement of claim struck out.  T h i s claim w a s brought under the original jurisdiction of the High Court. A s a result, the statement of claim w a s c o n s i d e r e d at first instance by a single High Court judge. T h i s d e c i s i o n w a s a p p e a l e d . T h e question before the Court, at first instance a n d o n  5 5  Above n 1 at 120 - 127. See the prayer for relief in the statement of claim that is set out in full in Justice Gibb's judgment. On appeal, the parties consented to treat the proposed amended statement of claim as if it were a duly delivered statement of claim. As a result, the application to strike was treated as if it related to a duly delivered statement of claim.  5 6  Section 116 of the Commonwealth Constitution is the freedom of religion provision.  5 7  Above n 1 at 120, from paragraph 1A of the proposed amended statement of claim.  36  a p p e a l , w a s w h e t h e r the statement of claim contained a c a u s e of action a n d if so, w h e t h e r l e a v e s h o u l d b e granted to a m e n d the statement of c l a i m . T h e H i g h C o u r t e x p r e s s e d substantive i s s u e s in the context of t h e s e procedural i s s u e s .  Sitting a l o n e at first instance, M a s o n J d i s m i s s e d the application for leave to a m e n d the statement of claim. O n a p p e a l , the High Court divided 2 to 2. G i b b s a n d A i c k i n J J held that the a p p e a l should be d i s m i s s e d a n d d e n i e d leave to a m e n d whilst J a c o b s a n d M u r p h y J J granted leave to a m e n d . P u r s u a n t to section 23(2)(a) of the Judiciary Act 1903 (Cth), M a s o n J ' s d e c i s i o n at first instance, refusing leave to a m e n d the plaintiff's statement of claim, w a s a f f i r m e d .  58  T h e r e w e r e two key points of departure between the majority a n d the minority. First, G i b b s a n d A i c k i n J J (who, with M a s o n J , the judge at first instance, constituted the majority) c o n s i d e r e d it settled law that Britain a c q u i r e d the Australian c o l o n i e s by settlement, a n d not conquest, under the doctrine of discovery, a s e x p r e s s e d by the Privy C o u n c i l in Cooper v Stuart.  59  J a c o b s a n d M u r p h y J J o n the other hand held  that the position in Cooper v Stuart w a s o p e n for question  6 0  Secondly, Gibbs and  A i c k i n J J held that the a m e n d e d statement of claim w a s "repetitious, confused a n d o b s c u r e a n d in s o m e respects inconsistent within i t s e l f .  5 8  61  T h e y held that the greater  Section 23(2)(a) requires that where the Court is equally divided in opinion, that the decision appealed from shall be affirmed. However, the court report incorrectly cited section 23(2)(b) as the relevant provision. Section 23(2)(b) applies to cases other than those on appeal and requires that the opinion of the chief justice or the senior justice prevails.  a> (1889) 14 App Cas 286 at 291. 6 0  They held that the claim to proprietary and possessory rights to land recognised by the common law was sufficiently pleaded. Cooper v Stuart was ultimately overruled in Mabo (No. 2).  6 1  Above n 1 at 118.  37  part of the a m e n d e d statement of claim w a s e m b a r r a s s i n g and did not d i s c l o s e a c a u s e of action. J a c o b s and Murphy J J held that there w a s no discretion to strike out the w h o l e of a statement of claim if it d i s c l o s e d a c a u s e of a c t i o n .  62  Despite t h e s e differences, all four j u d g e s a g r e e d that the c h a l l e n g e to the a s s e r t i o n of C r o w n sovereignty w a s non-justiciable in the High Court of Australia. G i b b s and A i c k i n J J held that the a n n e x a t i o n of the e a s t c o a s t of Australia by C a p t a i n C o o k in 1770 and s u b s e q u e n t a c t s that c o n s o l i d a t e d the Australian continent as a dominion of the C r o w n "were acts of state the validity of w h i c h could not be c h a l l e n g e d " .  63  L i k e w i s e , J a c o b s J rejected the c h a l l e n g e to the assertion of British sovereignty o v e r Australia b e c a u s e "sovereignty alleged to be p o s s e s s e d by the Aboriginal n a t i o n " w a s "formulated a s a claim b a s e d on a sovereignty a d v e r s e to the C r o w n . "  6 5  64  Jacobs  J held that the validity of the C r o w n ' s claim of sovereignty and s o v e r e i g n p o s s e s s i o n s w e r e "not matters of municipal law but of the law of nations and are not c o g n i s a b l e in a court e x e r c i s i n g jurisdiction under that sovereignty which is sought to be c h a l l e n g e d . "  66  Although Murphy J a g r e e d generally with J a c o b s J , he did not d e a l  specifically with the sovereignty c l a i m .  62  6 7  H o w e v e r , Murphy J w a s of the opinion that  Ibid.  63  Ibid at 128 per Gibbs J referring to New South Wales v Commonwealth (1975) 135 CLR 377 at 388 ("the Seas and Submerged Lands Case") where Gibbs J stated that, "[t]he acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state." Therefore, submissions recognising the operation of Aboriginal legal systems in Australia, which challenge the authority and legitimacy of the Australian legal system and its status as the sole legal system in Australia, have been considered nonjusticiable.  64  tod at 132.  6 5  tod at 133.  6 6  tod at 132.  67  tod at 138.  38 the plaintiff could a r g u e that the acquisition of sovereignty did not extinguish Aboriginal o w n e r s h i p rights.  J u s t i c e G i b b s wrote the leading judgment in Coe (No. 1). In d e n y i n g leave to a m e n d the statement of claim, he d e n i e d the existence a n d applicability of c o m m o n law c o n c e p t s of d o m e s t i c d e p e n d e n t nations, self-government a n d Aboriginal sovereignty. C h i e f J u s t i c e M a r s h a l l , in the famous trilogy of Johnson Worcester  v Georgia  69  a n d Cherokee  Nation v Georgia,  70  v  Mcintosh,  68  expressed these concepts  in the context of the British colonisation of the United States. In rejecting C o e ' s claim to absolute sovereignty, G i b b s J , referred to a n d distinguished M a r s h a l l C J ' s judgment in Cherokee  Nation v Georgia.  G i b b s J , in the following key p a s s a g e ,  wrote:  If the a m e n d e d statement o f claim intends to s u g g e s t either that the legal foundation of the C o m m o n w e a l t h is insecure, or that the powers of the Parliament are more limited than is provided in the Constitution, or that there is an Aboriginal nation w h i c h h a s sovereignty o v e r Australia, it cannot be supported.  In fact, w e w e r e told in argument, it is intended to claim that there  is an Aboriginal nation w h i c h h a s sovereignty o v e r its o w n people, notwithstanding that they remain citizens of the C o m m o n w e a l t h ; in other words, it is sought to treat the Aboriginal people of Australia a s a d o m e s t i c  68  Johnson v Mcintosh (1823) 21 US (8 Wheat) 543.  69  Worcester v Georgia (1832) 31 US (6 Pet) 515.  70  Cherokee Nation v Georgia (1831) 30 US (5 Pet) 1.  39  d e p e n d e n t nation, to use the e x p r e s s i o n w h i c h M a r s h a l l C J applied to the C h e r o k e e Nation of Indians: Cherokee  Nation v. State of Georgia (1831), 5  Pet 1, at p 17. H o w e v e r the history of the relationships b e t w e e n the white settlers a n d the Aboriginal p e o p l e h a s not b e e n the s a m e in Australia a n d in the United States, a n d it is not p o s s i b l e to say, a s w a s said by Marshall C J , at p. 16, of the C h e r o k e e Nation, that the Aboriginal people of Australia are o r g a n i s e d a s a "distinct political society separated from others", or that they h a v e b e e n uniformly treated a s a state. T h e j u d g m e n t s in that c a s e therefore provide no a s s i s t a n c e in determining the position in A u s t r a l i a . T h e Aboriginal people are subject to the laws of the C o m m o n w e a l t h a n d of the S t a t e s or Territories in w h i c h they respectively reside. T h e y h a v e no legislative, executive or judicial o r g a n s by w h i c h sovereignty might be e x e r c i s e d . If s u c h o r g a n s existed, they would h a v e no powers, e x c e p t s u c h a s the laws of the C o m m o n w e a l t h , or of a State or Territory, might confer upon t h e m . T h e contention that there is in Australia an Aboriginal nation e x e r c i s i n g sovereignty, e v e n of a limited kind, is quite i m p o s s i b l e in law to maintain. [All emphasis added].  71  T h i s captures the crux of G i b b s J's rejection of absolute A b o r i g i n a l sovereignty a n d a l s o e n c a p s u l a t e s the High Court's rejection of absolute A b o r i g i n a l sovereignty in this series of c a s e s . T h i s p a s s a g e has b e e n quoted with a p p r o v a l by the High Court in Coe (No. 2) a n d Walker v New South Wales. T h e problematic a s s u m p t i o n s that  71  Above n1 at 128- 129.  40  form the foundation of the rejection of A b o r i g i n a l sovereignty, a s s u m p t i o n s that are both explicitly a n d implicitly captured by this p a s s a g e , resonate throughout the H i g h Court d e c i s i o n s . T h e s e a s s u m p t i o n s include:  1.  History in the United S t a t e s is different from history in Australia a n d that a s a result of this difference in history, Aboriginal p e o p l e s in Australia cannot be r e c o g n i s e d a s s o v e r e i g n , self-governing Aboriginal nations.  2.  Aboriginal sovereignty n e c e s s a r i l y c h a l l e n g e s the legal foundation of the C o m m o n w e a l t h of A u s t r a l i a .  3.  Aboriginal sovereignty n e c e s s a r i l y limits parliamentary power.  4.  T h e Commonwealth  Constitution  exhaustively divides all l a w - m a k i n g  p o w e r s between the federal g o v e r n m e n t a n d state g o v e r n m e n t s .  5.  Legislative, executive a n d judicial a r m s of government are a n e c e s s a r y requirement of sovereignty.  6.  Aboriginal people do not h a v e legislative, executive and judicial o r g a n s to e x e r c i s e sovereignty.  41 7.  A n Aboriginal nation maintaining any form of sovereignty is "impossible".  T w o c h a l l e n g e s must be brought to this d e c i s i o n . T h e first c h a l l e n g e c o n c e r n s the nature of the question presented to the Court, w h i c h w a s a c l a i m of o v e r a r c h i n g sovereignty o v e r Australia o n behalf of a single Aboriginal nation. T h e s e c o n d c h a l l e n g e c o n c e r n s the validity of the a s s u m p t i o n s u p o n w h i c h this d e c i s i o n is built. H o w e v e r , a s these a s s u m p t i o n s tend to flow through t h e s e sovereignty d e c i s i o n s , I merely raise this issue a n d return to d i s c u s s it in full after e x a m i n i n g this s e r i e s of cases.  T h e H i g h Court in Coe (No. 1) w a s faced with a claim for absolute W e s t p h a l i a n state sovereignty, for a single Aboriginal nation of Australia that fundamentally c h a l l e n g e d the legitimacy of the A u s t r a l i a n state. T h i s w a s categorically rejected. T h i s is not surprising. S u c h a claim h a s n e v e r b e e n a c c e p t e d a n y w h e r e else in the C o m m o n w e a l t h . It is wrong to think that this rejection n e c e s s a r i l y e x c l u d e s sovereignty that is not absolute W e s t p h a l i a n sovereignty, exists at a c o m m u n i t y a n d not a national level a n d d o e s not fundamentally c h a l l e n g e the legitimacy of the A u s t r a l i a n state. T h e rejection of absolute sovereignty of a single fictitious nation is not a rejection of modified sovereignty of m a n y different Aboriginal nations. Modified sovereignty, existing at a c o m m u n i t y level that co-exists with A u s t r a l i a n sovereignty, w a s not c o n s i d e r e d by the High Court in Coe (No. 1).  42 Further, the a s s e r t i o n that C o e m a d e , that there is o n l y o n e A b o r i g i n a l nation in A u s t r a l i a , must be c h a l l e n g e d . P a u l C o e asserted that Aboriginal p e o p l e existed and continue to exist a s a single s o v e r e i g n nation. T h i s is a fundamental flaw in the statement of claim. Justice G i b b s questioned whether there is a "body of p e r s o n s properly d e s c r i b e d a s "the Aboriginal c o m m u n i t y a n d nation of A u s t r a l i a " "  72  a n d if so,  w h e t h e r C o e is entitled to sue on its behalf. Indeed, h o w could C o e h a v e standing to s u e on behalf of the Aboriginal nation of A u s t r a l i a ? G i b b s J q u e s t i o n e d standing b a s e d o n the grounds:  ... that there is no Aboriginal nation, if by that e x p r e s s i o n is m e a n t a people o r g a n i s e d a s a separate State or e x e r c i s i n g any d e g r e e of s o v e r e i g n t y . "  73  [ E m p h a s i s added].  T h e plaintiffs claim a n d G i b b s J's rejection, are both b a s e d o n the notion that any form of sovereignty necessarily entails state s e p a r a t i s m . But this is a very limited interpretation of sovereignty a n d not the only, let alone the most appropriate, interpretation of Aboriginal sovereignty. H e d o e s not c o n s i d e r modified sovereignty a s a notion distinct from absolute sovereignty.  C o e l a c k e d standing, not b e c a u s e no s o v e r e i g n Aboriginal nation c a n exist in A u s t r a l i a without challenging A u s t r a l i a n sovereignty, but rather, b e c a u s e there is not  "/bid at 131. 73  Ibid.  43 a single Aboriginal nation of Australia, a n d certainly not o n e that has absolute state sovereignty.  T h e r e w e r e o v e r 2 0 0 Aboriginal l a n g u a g e s in A u s t r a l i a a n d approximately 5 0 0 nations at the time of colonial contact. Despite quibbles of anthropological terminology (from "band" to "language group" to "nation" to "moiety" to "mob"), it is ahistorical and incorrect to a s s o c i a t e sovereignty in Aboriginal A u s t r a l i a with a n ability to m a k e laws nationally. T h e r e is no single national Aboriginal legal s y s t e m in . A u s t r a l i a . T h e r e are m a n y Aboriginal legal s y s t e m s . E a c h legal s y s t e m a n d set of l a w s g o v e r n s only specific Aboriginal peoples, those that are m e m b e r s of a particular Aboriginal community or Aboriginal nation. T h i s is w h e r e sovereignty lies.  F o r e x a m p l e , Koori law in Victoria d o e s not influence Bardi law in the K i m b e r l e y s . Bardi will respect Koori law w h e n they are in Koori country, a n d Koori will r e s p e c t Bardi law w h e n they are in Bardi country, but Bardi are not bound or g o v e r n e d by Koori law at any other time. Bardi are g o v e r n e d by Bardi law. Sovereignty, a n d in this instance, Aboriginal sovereignty, is the ability to m a k e laws that g o v e r n a community. In Aboriginal societies in Australia, this o c c u r s at the local c o m m u n i t y level, not nationally. Despite o v e r 2 0 0 y e a r s of colonisation and g o v e r n m e n t policies of assimilation, Aboriginal p e o p l e s h a v e distinct cultures, l a n g u a g e s and law. It is historically, culturally and contemporarily incorrect to talk of o n e Aboriginal nation of Australia.  44 Wacando  (1981)  v Commonwealth  S e v e r a l y e a r s after the d e c i s i o n in Coe (No. 1), the High Court h a n d e d d o w n its d e c i s i o n in Wacando  v Commonwealth.  C a r l e m o W a c a n d o , a traditional o w n e r of  parts of D a r n l e y Island, intended to d e v e l o p beche-de-mer fishing a n d to explore a n d exploit p e t r o l e u m .  74  T h e Q u e e n s l a n d a n d F e d e r a l G o v e r n m e n t s a r g u e d they  w e r e entitled to prevent W a c a n d o ' s actions unless he had a permit, leave or l i c e n c e from the G o v e r n m e n t . W a c a n d o a r g u e d that the Letters Patent of 1878 w e r e invalid a n d ineffective arid that a s a result, Darnley Island w a s not part of Q u e e n s l a n d or Australia.  C h i e f J u s t i c e G i b b s , writing the leading judgment, held that D a r n l e y Island h a d b e e n part of Q u e e n s l a n d since 1 A u g u s t 1879 a n d remained part of Q u e e n s l a n d . st  7 5  M a s o n , A i c k i n , W i l s o n and B r e n n a n J J , in brief but s e p a r a t e judgments, a g r e e d with Gibbs CJ's decision.  7 6  T h i s c a s e f o c u s e d o n the effect of certain imperial instruments that d e c l a r e d D a r n l e y Island part of Australia. It w a s not a challenge to the legitimacy, legality or justice of  7 4  Beche-de-mer, also known as trepang, is a sea cucumber. Wacando intended to fish in the seabed surrounding Darnley Island and between Darnley Island and other islands that are more than 60 miles from the Queensland mainland coast.  7 5  Above n 52 at 19.  76  Ibid at 27 per Mason J, ibid at 28 per Aickin J and ibid at 28 per Wilson J. Wilson J agrees with Gibbs CJ but has one reservation that there is no legal efficacy of the Letters Patent.of 1878. Brennan J, ibid at 30, also agrees with Gibbs CJ.  45 the legal doctrine authorising the extension of sovereignty o v e r Darnley I s l a n d .  77  H o w e v e r , M u r p h y J wrote a n interesting judgment that d e m o n s t r a t e s the a s s u m p t i o n s underlying the High Court's rejection of absolute Aboriginal sovereignty.  In the Treaty of Tordesillas  (1494) ihe P o r t u g u e s e a n d S p a n i s h c l a i m e d to  divide b e t w e e n them the n o n - E u r o p e a n world ... U n d e r this disposition the E a s t e r n half of Australia a n d D a r n l e y Island apparently b e l o n g e d to S p a i n . T h e a r r o g a n c e of the E u r o p e a n p o w e r s continued into and throughout the nineteenth century a n d the British w e r e no e x c e p t i o n . A r o u n d the world l a n d w a s c l a i m e d under the false pretence.that it w a s u n o c c u p i e d or terra  nullius  78  ... Islands off the Australian mainland w e r e a n n e x e d or a b a n d o n e d without reference to the inhabitants. T h e c a v a l i e r w a y in w h i c h the British authorities dealt with the affairs of the Australian c o l o n i e s is e v i d e n c e d by g r o s s i n c o n s i s t e n c i e s and ludicrous errors of g e o g r a p h i c a l description in important S t a t e d o c u m e n t s referred to in the h e a r i n g .  79  T h e eighteenth century pretensions of the British authorities to m a k e law for other p e o p l e s a r o u s e d resistance by the A m e r i c a n c o l o n i e s w h i c h culminated 77  Ibid at 11. Gibbs CJ noted that the plaintiff did not challenge the correctness of the statement of Diplock L.J in Post Office  v. Estuary Radio Ltd. (1968) 2 QB 740 at 753, which he had cited with approval in the Seas,and Submerged Lands Case above n 61 at 388: It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension the authority of Parliament is not required. 7 8  Importantly, he refers to Coe (No. 1).  7 9  Above n 50 at 27.  46  in the W a r of I n d e p e n d e n c e . A l t h o u g h t h e s e pretensions (like those of the Stuart Kings) h a v e b e e n p r o g r e s s i v e l y modified a n d now s e e m u n a c c e p t a b l e to many, they provide the b a s i s of the a s s u m p t i o n s o n w h i c h this c a s e w a s a r g u e d ... O n t h e s e a s s u m p t i o n s however, it follows that the application of the Colonial Boundaries  Act 1895 (Imp.) d i s p o s e s of the plaintiffs claim that  Darnley Island is not part of Q u e e n s l a n d . [ E m p h a s i s a d d e d ] .  80  M u r p h y J's articulate j u d g m e n t indicates c l e a r dissatisfaction with the m a n n e r of acquisition of sovereignty in Australia. H e notes the ludicrous pretensions relied upon to maintain the fiction of terra nullius a n d Australia a s a settled colony. T h e interesting a s p e c t of M u r p h y J's d e c i s i o n is his explicit d i s c u s s i o n of the a s s u m p t i o n s upon w h i c h the acquisition of Australia w a s legally justified. T h e s e a s s u m p t i o n s , a c c o r d i n g to M u r p h y J , d o not align with contemporary standards. M o r e fundamentally, t h e s e are merely a s s u m p t i o n s . It is t h e s e a s s u m p t i o n s that w e r e relied upon to justify colonisation. It is similar a s s u m p t i o n s that underpin the apparent rejection of the e x i s t e n c e of Aboriginal sovereignty in contemporary Australian society.  80  Ibid at 28.  47  Coe v Common  wealth (No. 2) (1993)  After the landmark d e c i s i o n in Mabo (No. 2), recognising native title a n d rejecting j u r i s p r u d e n c e arising from Cooper  v Stuart, the question of Aboriginal sovereignty  w a s a g a i n brought before the High Court.  O n behalf of the Wiradjuri, Isabelle C o e , the sister of P a u l C o e (the plaintiff in Coe (No. 1)),  81  sought a declaration u n d e r the original jurisdiction of the High Court that  the Wiradjuri are the o w n e r s of lands of a large part of southern a n d central N e w South W a l e s .  8 2  In the alternative, C o e a r g u e d that the "Wiradjuri are a d o m e s t i c  d e p e n d e n t nation, entitled to self g o v e r n m e n t and full rights o v e r their traditional lands, s a v e only the right to alienate t h e m to w h o e v e r they p l e a s e . "  83  T h e assertion  of the Wiradjuri a s a d o m e s t i c d e p e n d e n t nation w a s p r e m i s e d on the recognition of the Wiradjuri a s a s o v e r e i g n nation of p e o p l e .  84  T h e defendants, the C o m m o n w e a l t h of Australia and the State of N e w S o u t h W a l e s , applied to,strike out certain p a r a g r a p h s or alternatively to d i s m i s s , stay or strike out  8 1  Paul Coe, Chairman of the Aboriginal Legal Service, acts for the plaintiff in these proceedings.  8 2  Above n 3 at 194 for a description of the lands.  83  Ibidai 195. The "sovereignty claim" is set out at ibid at 195 - 196.  84  Ibid.  48 the statement of c l a i m . applications.  8 5  M a s o n C J , sitting a l o n e at first instance, heard the  86  C o e , relying o n M u r p h y a n d J a c o b J J ' s d e c i s i o n in Coe (No. 1), argued that Coe (No. 1) must be read in light of Mabo (No. 2). H o w e v e r , M a s o n C J restricted the reinterpretation of Coe (No. 1), stating, " C o e lends no support w h a t s o e v e r to a subsisting Aboriginal claim to s o v e r e i g n t y " .  87  C h i e f J u s t i c e M a s o n stated that:  Mabo (No. 2) is entirely at o d d s with the notion that sovereignty a d v e r s e to the C r o w n r e s i d e s in the Aboriginal people of Australia. T h e d e c i s i o n is equally at o d d s with the notion that there resides in the Aboriginal people a limited kind of sovereignty e m b r a c e d in the notion that they are "a d o m e s t i c d e p e n d e n t nation" entitled to self-government a n d full rights (save the right of alienation) or that a s a free a n d independent p e o p l e they are entitled to any rights a n d interests other than those created or r e c o g n i z e d by the laws of the C o m m o n w e a l t h , the State of N e w S o u t h W a l e s a n d the c o m m o n law. Mabo (No.2) d e n i e d that the C r o w n ' s acquisition of sovereignty o v e r Australia c o u l d be c h a l l e n g e d in the municipal courts of this country ... Mabo (No. 2) r e c o g n i z e d that land in the Murray Islands w a s held by m e a n s of native title under the paramount sovereignty of the C r o w n . [ E m p h a s i s a d d e d ] .  8 5  88  Commonwealth of Australia sought an order pursuant to 0 20 r 29 or 0 26 r 18 of the High Court Rules 1952 (Cth),  8 6  Interestingly, it was Mason CJ's decision at first instance in Coe (No. 1), which was ultimately upheld.  8 7  Above n 3 at 199. /b/cf at 200.  49  C h i e f Justice M a s o n c o l l a p s e d all notions of sovereignty into o n e notion of absolute state sovereignty. H o w e v e r , sovereignty is far more c o m p l e x than this. C h i e f J u s t i c e M a s o n d o e s not provide r o o m for this complexity in his a n a l y s i s :  T h e allegation . . . that the Wiradjuri are a d e p e n d e n t d o m e s t i c nation, entitled to self-government a n d full rights o v e r their tribal lands, is but another w a y of putting the sovereignty claim. T h e allegation h a s no basis in d o m e s t i c law. L i k e w i s e , the claim ... that the Wiradjuri are a free a n d independent people is but another a s p e c t of the sovereignty claim, having no independent legal significance. [ E m p h a s i s a d d e d ] .  89  C h i e f Justice M a s o n ' s r e a s o n i n g is flawed. A s a result of folding all sovereignty a n d self-government arguments into o n e c l o s e d notion of absolute W e s t p h a l i a n state sovereignty, M a s o n C J a p p e a r s to reject the possibility of Wiradjuri sovereignty existing in any form w h a t s o e v e r .  Interestingly, M a s o n C J held that the claim w a s brought for a n improper purpose. In addition to e v i d e n c e that the predominant p u r p o s e w a s to aid a political c a m p a i g n  »K>K/at 200.  50 foreign to the litigation, the fact that the core of the claim was sovereignty and therefore untenable constituted further evidence of an improper purpose.  90  In the result, the High Court rejected the sovereignty claim that the Commonwealth lacked legislative competence to impair Wiradjuri rights. Mason CJ, sitting alone at first instance, rejected the argument that after Mabo (No. 2), the Crown's acquisition of sovereignty over Australia could be challenged in domestic courts. He also affirmed Gibbs J's statement in Coe (No.1) that the notion of domestic dependent nations is not applicable in Australia.  Walker v New South Wales (1994)  Walker was charged with six offences under the Crimes Act 1900 (NSW) '* 9  In his  defence, Walker challenged the ability of the New South Wales Parliament to enact the provisions under which he had been'charged and asserted that the common law is only valid in its application to Aboriginal people to the extent it has been accepted by Aboriginal people. New South Wales applied for the action to be dismissed or  90  Ibid at 206 - 207, relying on Williams v Spautz (1992) 174 CLR 509. The alleged campaign was to contribute to the political settlement of claims made by Aboriginal people in Australia, including the Wiradjuri. In particular, the alleged intention was to indicate that Aboriginal people have rational claimsand that the farming community should start negotiating with the Wiradjuri for the payment of royalties for the occupation of Wiradjuri land. This was per John McDonnell's affidavit, which deposes statements by Paul Coe. The plaintiff, Isabelle Coe did not contest the making of these statements.  9 1  Walker is a well-respected Aboriginal elder and activist and was charged under section 33A of the Crimes Act 1900 (NSW) for malicious discharge of loaded arms with intent to do grievous bodily harm or to resist arrest and section 58 of the Crimes Act 1900 (NSW) for assault with intent to commit a felony or assault of an officer in the execution of his duty. The incident occurred whilst Walker was defending a sacred site. In response to the final sentencing decision, a "Free , Denis Walker" campaign was instigated.  51  stayed, arguing that the statement of claim did not plead a reasonable cause of action.  92  Walker denied this was a claim for sovereignty. The question raised was whether, after Mabo (No. 2), earlier cases that determined Aboriginal law did not exist, that were based on terra nullius, maintained precedential weight. The plaintiff argued that Aboriginal criminal law is recognised by the common law and continues as Aboriginal land tenure laws were held to continue in Mabo (No. 2). The plaintiff asserted that courts had never finally determined whether Aboriginal criminal law is still applicable and argued that "the criminal law that was imported to New South Wales on colonization was only the law that affected the colonists."  93  Chief Justice Mason, sitting alone at first instance, referred to Coe (No. 1) and held that the pleadings were couched in terms of legislative incapacity and therefore untenable.  94  In considering whether the previous jurisprudence was still applicable,  Mason C J again stated that:  There is nothing in the recent decision in Mabo v. Queensland (No. 2) ... to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to 9 2  0 26 r 18 High Court Rules 1952 (Cth).  93  Above n 53 at 46.  94  Ibid at 48.  52 Aboriginal people is in a n y w a y subject to their a c c e p t a n c e , adoption, request or consent. S u c h notions amount to the contention that a n e w s o u r c e of sovereignty r e s i d e s in the Aboriginal p e o p l e . Indeed, Mabo (No.2) rejected that s u g g e s t i o n .  95  M a s o n C J c o n s i d e r e d Mabo (No. 2) to be "entirely at o d d s " with any notion of Aboriginal sovereignty. Further, M a s o n C J r e a s o n e d that a construction that results in different criminal s a n c t i o n s for different p e r s o n s for the s a m e c o n d u c t offends both the principle of equality a n d section 10 of the Racial Discrimination  Act (1975)  (Cth)  96  M a s o n C J held that the statement of claim did not d i s c l o s e a r e a s o n a b l e c a u s e of action "in so far as it is b a s e d on the proposition that the legislatures l a c k e d p o w e r to legislate over Aboriginal p e o p l e s . "  97  A s in the previous d e c i s i o n s rejecting the  existence of Aboriginal sovereignty, this c a s e c o l l a p s e d all notions of A b o r i g i n a l sovereignty into o n e W e s t p h a l i a n notion of sovereignty that interconnects notions of sovereignty with the state.  REJECTION OF ABSOLUTE NOT MODIFIED SOVEREIGNTY  95  Ibid.  96  Ibid at 49. Section 10 of the Racial Discrimination Act 1975 (Cth) is the equality rights provision.  97  Ibid at 50. Even though it was a request for the action to be dismissed or alternatively stayed, the statement of claim was struck out for no reasonable cause of action.  53 T h e s e High Court c a s e s , particularly Coe (No. 1) a n d Coe (No. 2), at first g l a n c e p o s e a formidable hurdle to the assertion of Aboriginal sovereignty in A u s t r a l i a today. T h i s is the argument often raised to d e n y the right of self-government a n d the continuing existence of Aboriginal sovereignty in any form w h a t s o e v e r . H o w e v e r , properly c o n s i d e r e d , these c a s e s do not e x c l u d e the possibility of the a s s e r t i o n a n d recognition of Aboriginal self-government where the underlying Aboriginal sovereignty is not in opposition to C r o w n sovereignty. It is this form of modified A b o r i g i n a l sovereignty that supports the argument for the recognition of A b o r i g i n a l self-government.  In order to indicate the limited extent the rejection of absolute A b o r i g i n a l sovereignty in t h e s e c a s e s p o s e for the recognition of c o m m o n law self-government, I e x a m i n e the nature of the questions that w e r e put before the Court, the a s s u m p t i o n s the C o u r t relied o n in its r e s p o n s e a n d the e x p a n s i v e interpretations c o m m e n t a t o r s have g i v e n to t h e s e c a s e s .  Flawed Questions  T h e questions brought before the Court arguing for the recognition of A b o r i g i n a l sovereignty all failed to clearly distinguish between absolute sovereignty a n d modified sovereignty.  54  F o r instance, in Coe (No. 1), the High Court w a s faced with a c l a i m for absolute W e s t p h a l i a n state sovereignty for a n ahistorical single Aboriginal nation of Australia. In addition, C o e attempted to m a k e a claim of modified sovereignty o n behalf of the single Aboriginal nation'of Australia. R e l y i n g on Marshall C J ' s d e c i s i o n in Nation v Georgia,  98  Cherokee  C o e failed to establish the r e l e v a n c e of this United S t a t e s  j u r i s p r u d e n c e a n d failed to clearly distinguish the concept of d o m e s t i c d e p e n d e n t nations, a c o n c e p t e n c a p s u l a t e d by modified sovereignty, from absolute W e s t p h a l i a n state sovereignty. T h e question before the Court thus c o l l a p s e d all notions of sovereignty into o n e notion of absolute sovereignty.  W h e n the question of Aboriginal sovereignty w a s raised p o s t - M a o o (No. 2), after the recognition of inherent Aboriginal rights to land, the plaintiffs a g a i n failed to distinguish between absolute a n d modified sovereignty. Isabelle C o e , in Coe (No. 2), m a d e a claim for absolute sovereignty a n d in the alternative, a claim for recognition a s a d o m e s t i c d e p e n d e n t nation. A l t h o u g h the claim a p p e a r s to be for modified sovereignty, it w a s not clearly articulated to distinguish it from the claim of absolute sovereignty. T h i s is evident in M a s o n C J ' s r e s p o n s e w h e r e he stated that Mabo (No. 2) is "equally at odds" with any other form of "limited" sovereignty.  B e c a u s e t h e s e c a s e s w e r e not properly a d v a n c e d o r properly a r g u e d , the Court s e e m s to h a v e c o n s i d e r e d Aboriginal sovereignty a s either absolute sovereignty or  9 8  Although the concept of domestic dependent nations was discussed, the issue of self-government was not considered to the same extent as in the final decision of the Marshall trilogy, Worcester v Georgia.  55  no sovereignty. T h e plaintiffs did not a d v a n c e and the Court did not c o n s i d e r the proper construction of colonial law that there is a mid-point b e t w e e n t h e s e two positions. Therefore, the Court w a s not confronted with the question of an individual Aboriginal nation with laws distinct to itself or modified sovereignty and selfg o v e r n m e n t that is consistent with the existence of the Australian state. A s a result, b e c a u s e t h e s e i s s u e s h a v e n e v e r b e e n c o n s i d e r e d in Australia, they h a v e n e v e r b e e n rejected.  A further interesting a s p e c t of the nature of the q u e s t i o n s brought in t h e s e c a s e s is that all of t h e s e c a s e s , e x c e p t for Walker v New South Wales, w e r e brought u n d e r the original jurisdiction of the High C o u r t . " This m e a n s that the statement of c l a i m w a s filed in the High Court and a single j u d g e acted a s a trial j u d g e at first instance. T h i s is quite a different situation to most High Court c a s e s that form part of the appellate jurisdiction of the High Court and have b e e n c o n s i d e r e d by a trial court, an appellate court and granted s p e c i a l leave to a p p e a l before being c o n s i d e r e d by the High Court.  T h e r e are two fundamental differences that must be r e c o g n i s e d . First, c a s e s brought under the original jurisdiction d e a l with both questions of law and questions of fact.  9 9  Both the Commonwealth Constitution and the Judiciary Act 1903 (Cth) have vested the High Court with original jurisdiction. Section 75 of the Commonwealth Constitution vested the High Court with original jurisdiction in five areas, including matters where the Commonwealth, States or other countries are parties to the litigation. In addition, section 30 of the Judiciary Act 1903 (Cth) also confers original jurisdiction on the High Court in matters arising under the Commonwealth Constitution or its interpretation. The High Court also has exclusive jurisdiction where its jurisdiction is exclusive of the jurisdiction of state courts. Section 38 of the Judiciary Act 1903 (Cth) confers exclusive jurisdiction on the High Court in matters involving states or the Commonwealth.  56 H o w e v e r , c a s e s brought under the appellate jurisdiction are limited to q u e s t i o n s of law. Therefore, in these c a s e s , H i g h C o u r t j u d g e s were acting a s j u d g e s at first instance.  100  S e c o n d l y , in c o n s i d e r i n g c a s e s brought under the appellate jurisdiction,  the High C o u r t h a s the benefit of the r e a s o n s of judgment of the lower courts. T h e r e are no p r e v i o u s d e c i s i o n s in c a s e s brought under the original jurisdiction. A s a result, the p r o b l e m s that m a y a r i s e with a statement of claim that has not b e e n subject to the normal disputation at trial may, a n d did, arise in t h e s e c i r c u m s t a n c e s .  Therefore, although t h e s e are all High Court d e c i s i o n s , it is important to r e c o g n i s e that they w e r e brought under the original jurisdiction. A c c o u n t i n g for the fact that the High C o u r t ' s original jurisdiction only e x t e n d s to matters that go to the core of the A u s t r a l i a n constitutional a n d legal framework, it is important to r e c o g n i s e the procedural nature of these c a s e s . A first instance d e c i s i o n , m a d e prior to trial of the i s s u e s , must not be extrapolated into a rejection of Aboriginal sovereignty in all forms w h a t s o e v e r .  Flawed A s s u m p t i o n s Underpinning the Court's R e s p o n s e  Earlier in this chapter, I outlined s e v e n a s s u m p t i o n s that underpin t h e s e High C o u r t decisions.  101  1 0 0  The question before the Court is not whether the issues raised have been made out on a balance of probabilities but rather, whether the statement of claim raises a cause of action and is not vexatious, embarrassing or scandalous; See  1 0 1  See page 39.  0 26 r 18 and 0 20 r 29 High Court Rules 1952 (Cth).  57  A s s u m p t i o n n u m b e r o n e is not maintainable. T h e rejection of the Marshall jurisprudence b e c a u s e there is a "difference" b e t w e e n the treatment of indigenous p e o p l e s in Australia and the treatment of indigenous p e o p l e s in the United S t a t e s is b a s e d o n a flawed understanding of the United S t a t e s jurisprudence. In C h a p t e r 3, I elaborate this point. Despite the apparent rejection in Coe (No. 1) a n d Coe (No. 2), the Marshall trilogy formed part of the colonial c o m m o n law that w a s imported to A u s t r a l i a at colonisation.  T h e crux of a s s u m p t i o n s n u m b e r two to s e v e n is a reliance on o n e particular notion of sovereignty. G i v e n the nature of the questions presented t o t h e Court, this is not surprising. T h e High Court c o l l a p s e d all notions of sovereignty, including Aboriginal sovereignty that d o e s not exist in opposition to C r o w n sovereignty, into o n e notion of absolute state sovereignty. T h e synthesis of t h e s e c o m p l e x notions of sovereignty under the banner of absolute sovereignty d e n i e d the Court the opportunity to c o n s i d e r the possibility of the continuing e x i s t e n c e of modified Aboriginal sovereignty. T h i s extrapolation of the c o n c e p t of sovereignty is without jurisprudential basis a n d with respect, the High C o u r t is incorrect in d e n y i n g the existence of all forms of A b o r i g i n a l sovereignty a n d self-government on this g r o u n d . A s a result, I reject all six a s s u m p t i o n s that rely o n this c o l l a p s e d notion of sovereignty.  58 First, Aboriginal sovereignty, w h e r e it is modified sovereignty, d o e s not n e c e s s a r i l y c h a l l e n g e the legal foundation of the C o m m o n w e a l t h of Australia. S e c o n d , Aboriginal sovereignty d o e s not n e c e s s a r i l y limit Parliamentary power. Aboriginal a n d Parliamentary p o w e r c a n co-exist. Third, the division of p o w e r s in the Commonwealth Constitution d o not preclude the e x i s t e n c e of Aboriginal sovereignty. Aboriginal sovereignty h a s a different s o u r c e than C r o w n sovereignty a n d therefore d o e s not rely o n the division of p o w e r s in the Commonwealth Constitution, p o w e r s that e m a n a t e from C r o w n sovereignty. Fourth, legislative, executive a n d judicial a r m s are not a n e c e s s a r y requirement of government. T h i s is a n e r r o n e o u s ethnocentric a s s u m p t i o n . Fifth, w h e t h e r o r not Aboriginal people have t h e s e three a r m s of government is irrelevant to whether o r not they are s o v e r e i g n p e o p l e s . A g a i n , this is a n ethnocentric perception of government. Finally, a n Aboriginal nation maintaining sovereignty is not i m p o s s i b l e . Aboriginal sovereignty continues to exist in a modified form.  T h e High Court's a s s u m p t i o n s , all relying o n o n e understanding of sovereignty a s absolute sovereignty, are invalid. A s a result, the inferences the High C o u r t h a s d r a w n from t h e s e a s s u m p t i o n s a r e questionable.  Conflated Commentary  59  Unfortunately, c o m m e n t a t o r s h a v e generally given e x p a n s i v e interpretations to this series of High C o u r t c a s e s by e x a g g e r a t i n g the s c o p e of the rejection of sovereignty. A s a result, the myth that Aboriginal sovereignty has b e e n rejected in a n y form w h a t s o e v e r has b e e n perpetuated. T h i s has then b e e n u s e d to d e n y the right of selfgovernment. P e t e r G r o s e aptly s u m m a r i s e s the g e n e r a l p o s i t i o n .  102  In o n e s e n t e n c e the s u m m a r y of the i s s u e of i n d i g e n o u s sovereignty in A u s t r a l i a n municipal courts is that it is a non-justiciable i s s u e .  1 0 3  A s a result of this position, t h e s e c a s e s are generally relied o n to distinguish Australia from C a n a d a , N e w Z e a l a n d a n d the United States, w h e r e self-government h a s b e e n r e c o g n i s e d to varying d e g r e e s . A n d r e w L o k a n writes:  It a p p e a r s unlikely that any broad a n d g e n e r a l right to self-government, of the kind r e c o g n i s e d in the United S t a t e s by M a r s h a l l C J in the early d e c a d e s of the 19th century, will be r e c o g n i s e d a s part of the c o m m o n law of Australia. Mabo's  e m p h a t i c statements about the e s t a b l i s h m e n t of C r o w n sovereignty,  1 0 2  See Otta, above n 40 at 102. She concludes that "[i]n the terms of contemporary international and domestic legal discourse, indigenous sovereignty is an impossibility." See also H. McRae, G. Nettheim & L Beacroft, Aboriginal Legal Issues (Sydney: Law Book Company, 1991) at 70. Garth Nettheim, "International Law and Sovereignty" in Christine Fletcher (ed.), Aboriginal Self-Determination in Australia (Canberra: Aboriginal Studies Press, 1994) 70 at 73.  1 0 3  Peter Grose, "The Indigenous Sovereignty Question and the Australian Response" (1996) 3:1 Australian Journal of Human Rights 40 at 43. Although he disagrees with these decisions, he suggests that political routes are the best option and sees the legal question as moot at 61 - 68.  60  c o u p l e d with the holdings in the two Coe v Commonwealth leave little or no r o o m for a claim of this n a t u r e .  c a s e s , a p p e a r to  104  With respect, this interpretation of Coe (No. 1) a n d Coe (No. 2) is incorrect. T h e High Court in Coe (No. 1) w a s faced with a claim for absolute W e s t p h a l i a n state sovereignty, for a single Aboriginal nation of A u s t r a l i a that fundamentally c h a l l e n g e d the legitimacy of the A u s t r a l i a n state. T h i s w a s categorically rejected by the H i g h Court. It is w r o n g to think that this rejection n e c e s s a r i l y e x c l u d e s sovereignty that is not absolute W e s t p h a l i a n sovereignty, exists at a c o m m u n i t y level a n d d o e s not fundamentally c h a l l e n g e the legitimacy of the A u s t r a l i a n state.  CONCLUSION  Pre-contact Aboriginal sovereignty g a v e Aboriginal p e o p l e s e x c l u s i v e jurisdiction o v e r their land and affairs. T h e colonisation of A u s t r a l i a a n d the establishment of colonial government have n e c e s s a r i l y modified A b o r i g i n a l sovereignty. H o w e v e r , Aboriginal sovereignty cannot be understood by reference only to international law c o n c e p t s . Instead, a pluralistic notion of sovereignty s h o u l d be applied consistent with the c o m i n g together of communities, legal s y s t e m s a n d different forms of government.  105  1 0 4  Andrew Lokan, "From Recognition to Reconciliation: The Functions of Aboriginal Rights Law" (1999) 23 Melbourne University Law Review 65 at 116.  1 0 5  Patrick Macklem, "Normative Dimensions of an Aboriginal Right of Self-Government" (1995) 21 Queen's Law Journal 173 at 185. Macklem argues that recognising the right of self-government is driven by the desire to recognise incidents  61  O n c e the assertion of absolute sovereignty is jettisoned, the a s s e r t i o n of modified sovereignty d o e s not result in the incapacity of Parliament. A u s t r a l i a n judicial d e c i s i o n s do not d e n y that Aboriginal people are entitled to c o m m o n law rights, including the c o m m o n law right of s e l f - g o v e r n m e n t .  106  Therefore, although the High  C o u r t has rejected the existence of absolute sovereignty o n s e v e r a l o c c a s i o n s , this is not fatal to the recognition of a c o m m o n law right of Aboriginal self-government. A b o r i g i n a l sovereignty continues to exist a n d , although modified, supports the c o m m o n law right of self-government.  of inherent Aboriginal sovereignty in light of the existence of the state. See also S.E. Merry, "Resistance and the Cultural Power of Law" (1995) 29 Law and Society Review 11 at 23, who argues that using this definition of modified Aboriginal sovereignty, it promotes a "legally plural notion of law in which state law is only one of many levels". 1 0 6  Above n 3 at 200.  62  Chapter Three SELF-GOVERNMENT & THE COLONIAL COMMON LAW  In 1832, the United S t a t e s S u p r e m e Court d e c i d e d Worcester v Georgia.^ T h i s s e m i n a l d e c i s i o n is foundational to Aboriginal rights jurisprudence, not only in the United S t a t e s but throughout m u c h of the former British E m p i r e . C h i e f J u s t i c e M a r s h a l l wrote the leading judgment in Worcester v Georgia a n d in two p r e c e d i n g A b o r i g i n a l rights c a s e s : Johnson  v Mcintosh  a n d Cherokee  Nation v  T h e s e c a s e s are collectively referred to a s the "Marshall trilogy".  Georgia.  4  In t h e s e c a s e s , Marshall C J treated land a n d sovereignty a s the two vital e l e m e n t s of Aboriginal rights. 1 focus o n the final d e c i s i o n in the trilogy a s it c o n t a i n s the 5  clearest a n d most c o m p r e h e n s i v e consideration of self-government.  1  2  6  3 1 U.S. (6 Pet.) 515 (1832). 21 U.S. (8 Wheat) 543 (1823).  3  30 U.S. (5 Pet.) 1  4  See Howard Berman, "The Concept of Aboriginal Rights in the Early Legal History of the United States" (1978) 27 Buffalo Law Review 637. Chief Justice John Marshall was the fourth Chief Justice of the United States Supreme Court. He took the oath of office on 4 Feb 1801 and served until his death on 6 July 1835. See J.E. Smith, John Marshall: Definerofa Nation (New York: Henry Holt, 1996) at 1, 20, 283, and 285; Christopher D. Jenkins, "John Marshall's Aboriginal Rights Theory and its Treatment in Canadian Jurisprudence" (2001) 35 University of British Columbia Law Review 1.  5  Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333 (Written argument of the Nisga'a Tribal Council  6  Howard Berman, "The Concept of Aboriginal Rights in the Early Legal History of the United States" (1978) 27 Buffalo Law Review 637 at 660 argues that Worcester v Georgia provides the clearest, most complete articulation of Aboriginal rights and should be seen as the culmination of an evolving doctrine. Berman also notes that this is the only case in the trilogy decided on substantive merits involving a "live issue" of Aboriginal rights. Therefore, although Coe (No. 1) and Coe (No. 2) dealt with the second case, Cherokee Nation v Georgia, I suggest that this case was not the final or most articulate statement on self-government.  at 27).  63  Worcester  v Georgia reviews the history of British d e a l i n g s with Aboriginal p e o p l e s  in A m e r i c a a n d articulates certain principles implicit in t h o s e dealings. C h i e f J u s t i c e M a r s h a l l ' s judgment, akin to Lord M a n s f i e l d ' s celebrated d e c i s i o n in Campbell Hall,  7  v  provides "structure and c o h e r e n c e to a n untidy, diffuse body of c u s t o m a r y law  b a s e d o n official practice." Worcester 8  v Georgia e n c a p s u l a t e s the c o m m o n l a w  legal doctrine of inherent Aboriginal self-government, a doctrine originating in British imperial law.  T h e c o n c i s e statement of the inherent right of self-government in Worcester v Georgia h a s b e e n adopted in C a n a d a but not in Australia. T h e adoption of this doctrine in C a n a d a is indicative of its nature a s a colonial c o m m o n law doctrine. It is the imperial colonial origins of this doctrine that provide the b a s i s for its application in A u s t r a l i a . Therefore, o n e must ask, if Worcester  v Georgia coherently states British  colonial c o m m o n law, w h y h a s it not b e e n a d o p t e d in A u s t r a l i a ? In order to a n s w e r this question, I first e x a m i n e the d e c i s i o n in Worcester  v Georgia before c o n s i d e r i n g  the C a n a d i a n a n d A u s t r a l i a n r e s p o n s e .  WORCESTER  7  8  V GEORGIA  & THE RIGHT OF SELF-GOVERNMENT  (1774) 1 Cowp. 204; 98E.R. 1045. Brian Slattery, "Understanding Aboriginal Rights" (1987) 66 Canadian Bar Review 727 at 739.  64 In 1829, G e o r g i a p a s s e d legislation that a d d e d C h e r o k e e territory to G e o r g i a ' s counties, e x t e n d e d G e o r g i a ' s laws o v e r that territory and annulled all C h e r o k e e l a w s . T h e following year, G e o r g i a p a s s e d further legislation that prevented the 9  e x e r c i s e of power under pretext of authority from the C h e r o k e e Nation and prevented white p e r s o n s from residing within C h e r o k e e territory.  10  In S e p t e m b e r  1 8 3 1 , S a m u e l A . W o r c e s t e r , a N e w E n g l a n d missionary, w a s c h a r g e d with "residing within the limits of the C h e r o k e e nation without a l i c e n s e . "  11  H e received four y e a r s  imprisonment. W o r c e s t e r a p p e a l e d to the S u p r e m e Court.  W o r c e s t e r w a s a p r e a c h e r and argued that he w a s residing in C h e r o k e e territory with p e r m i s s i o n of the C h e r o k e e Nation and the United States. H e submitted that the a l l e g e d crime w a s not within the court's jurisdiction. W o r c e s t e r pointed to treaties s i g n e d b e t w e e n the United S t a t e s and the C h e r o k e e Nation, arguing that t h e s e r e c o g n i s e d the C h e r o k e e a s a s o v e r e i g n nation, authorised to govern t h e m s e l v e s and therefore not subject to G e o r g i a ' s laws. W o r c e s t e r argued that G e o r g i a ' s acts w e r e repugnant to both the United S t a t e s constitution and the treaties and a s a result w e r e unconstitutional a n d v o i d .  1 2  O n 3 M a r c h 1832, C h i e f J u s t i c e M a r s h a l l delivered the S u p r e m e Court's d e c i s i o n . In c o n s i d e r i n g the validity of the treaties and G e o r g i a ' s legislation, Marshall C J  9  For full text (including the lower court decisions) see Worcester v Georgia 1832 U.S. LEXIS 489 at 9.  10  /Jb/'c/ at 1.  11  Above n 1 at 537. Elizur Butler, James Trott, Samuel Mays, Surry Eaton, Austin Copeland and Edward Losure were also charged with the same offence.  12  Ibid at 538 - 5 4 0 .  65 g r a p p l e d with the implications of the United S t a t e s o c c u p a t i o n of Indian land, attempting to reconcile United S t a t e s sovereignty with Indian r i g h t s .  13  C h i e f J u s t i c e M a r s h a l l c o n s i d e r e d the doctrine of d i s c o v e r y and confirmed the preexisting sovereignty of Indian nations:  A m e r i c a , s e p a r a t e d from E u r o p e by a wide o c e a n , w a s inhabited by a distinct people, divided into separate nations, independent of e a c h other and of the rest of the world, having institutions of their own, and governing t h e m s e l v e s by their o w n l a w s .  14  T h e doctrine of d i s c o v e r y has often b e e n misinterpreted to justify the extinguishment of aboriginal rights, title and s o v e r e i g n t y .  15  However, the C h i e f J u s t i c e articulated the  doctrine of d i s c o v e r y s u c h that it regulates the relationship b e t w e e n E u r o p e a n nations a n d merely restricts Indian nations ability to treat with the  "discovering"  nation, if Indian nations c h o o s e to treat. T h e doctrine of d i s c o v e r y d o e s not i m p o s e a n y other restrictions o n aboriginal p e o p l e s .  1 3  14  1 5  There were two preliminary issues in Worcester v Georgia. The first issue was whether the Supreme Court had jurisdiction. Marshall C J determined there was jurisdiction, as the validity of treaties, and at a minimum their construction, was called into question. The second issue was whether the record was properly before the court. There was a question whether the clerks signature, rather than the judge's signature was sufficient; ibid at 537. Marshall CJ and M'Lean J , ibid at 563, 568 and 573, held that there was no deficiency. Baldwin J dissented on this ground, arguing that the record was not properly returned upon the writ of error as the record ought to have been returned by the state court, not by the clerk of the state court. As to the merits of the case, Baldwin J stated that his opinion remained the same as was expressed in Cherokee Nation v State of Georgia. ibid at 5 4 2 - 5 4 3 . See Mabo v Queensland (1992) 175 CLR 1 {"Mabo (No. 2)") and Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333.  66  M a r s h a l l C J c o n s i d e r e d n u m e r o u s treaties, including the Treaty of Holston™ interpreted the Treaty ofHolston  He  as explicitly r e c o g n i s i n g the national character of  the C h e r o k e e , C h e r o k e e lands and their right of self-government and also i m p o s i n g o n the United S t a t e s a duty of protection. T h i s relationship of protection w a s consistent with the roles of the United S t a t e s a n d G e o r g i a since Confederation. C h i e f J u s t i c e M a r s h a l l c o n c l u d e d that the United S t a t e s had the sole right to d e a l with First N a t i o n s .  After recognising pre-existing sovereignty and o c c u p a t i o n , M a r s h a l l C J articulated the concept of self-government. In a n oft-quoted p a s s a g e , Marshall C J stated:  T h e Indian nations had a l w a y s b e e n c o n s i d e r e d a s distinct, independent political communities, retaining their original natural rights, a s the undisputed p o s s e s s o r s of the soil, from time i m m e m o r i a l , with the single e x c e p t i o n of that i m p o s e d by irresistible power, w h i c h e x c l u d e d t h e m from intercourse with a n y other E u r o p e a n potentate than the first d i s c o v e r e r of the coast of the particular region c l a i m e d : a n d this restriction w h i c h those E u r o p e a n potentates i m p o s e d o n t h e m s e l v e s , a s well a s o n the Indians. T h e very term "nation," so generally applied to them, m e a n s "a people distinct from others."  17  1 6  Above n 1 at 556. This treaty was frequently renewed.  1 7  /Jb/d at 559.  67  In addition to elaborating o n the doctrine of d i s c o v e r y , this p a s s a g e r e c o g n i s e s i n d i g e n o u s p e o p l e s a s "nations". Importantly, the term is u s e d in its general international s e n s e r e c o g n i s i n g , at a m i n i m u m , a m e a s u r e of self-government. In addition, referring to Vattel a n d the L a w of N a t i o n s , M a r s h a l l C J noted that although a w e a k state, in order to provide for its safety, m a y place itself under the protection of a more powerful state, the w e a k e r state d o e s not c e a s e being s o v e r e i g n or lose its right of s e l f - g o v e r n m e n t .  18  Therefore, c o n c e i v i n g of the C h e r o k e e a s a nation  under the protection of the United S t a t e s w a s consistent with international legal practice a n d meant the C h e r o k e e retained their inherent right of self-government.  M a r s h a l l C J ' s view w a s not u n a n i m o u s . M ' L e a n J , in a notable c o n c u r r e n c e , r e c o g n i s e d C h e r o k e e self-government but r e a s o n e d that, "the e x e r c i s e of the p o w e r of self-government by the Indians within a state, is undoubtedly contemplated to be temporary."  19  H i s rationale w a s that a time might c o m e w h e r e "a tribe of Indians shall  b e c o m e so d e g r a d e d or r e d u c e d in n u m b e r s a s to lose the p o w e r of selfgovernment" a n d that in that c a s e , the local law, by necessity, must be e x t e n d e d o v e r the Indian n a t i o n . T h i s h e g e m o n i c reasoning, b a s e d on the "dying race 20  theory", relies o n the inferiority a n d s u b s e q u e n t frailty of Indian nations.  18  Ibid at 561.  19  Ibid at 593. See also Timothy Joseph Preso, "A Return to Uncertainty in Indian Affairs: The Framers, the Supreme Court and the Indian Commerce Clause" (1994) 19 Am. Indian L. Rev. 443 at 456.  20  Ibid. Worcester v Georgia has had a chequered experience in its interpretation in United States law, with the United States Supreme Court oscillating between an expansive and restrictive definition of Aboriginal self-government. See Timothy Joseph Preso, "A Return to Uncertainty in Indian Affairs: The Framers, the Supreme Court and the Indian Commerce Clause" (1994) 19 Am. Indian L. Rev. 443 at 456 - 459.  68  Despite this Darwinist construction of Indian nations, M ' L e a n J r e c o g n i s e d the inherent right of Aboriginal self-government:  At no time h a s the sovereignty of the country b e e n r e c o g n i z e d a s existing in the Indians, but they h a v e a l w a y s admitted to p o s s e s s m a n y of the attributes of sovereignty. All the rights w h i c h belong to self-government h a v e b e e n r e c o g n i z e d a s vested in t h e m . T h e i r right of o c c u p a n c y h a s n e v e r b e e n guestioned, but the fee in the soil h a s b e e n c o n s i d e r e d in the g o v e r n m e n t . T h i s m a y be called the right to the ultimate d o m a i n , but the Indians h a v e a present right of p o s s e s s i o n . [ E m p h a s i s a d d e d ] .  21  M ' L e a n J's c o n c e p t i o n of self-government is g r o u n d e d in a recognition of prior o c c u p a t i o n a n d prior sovereignty, w h i c h is consistent with aboriginal rights jurisprudence in C a n a d a and A u s t r a l i a . Importantly, he distinguishes b e t w e e n absolute state sovereignty a n d modified or limited s o v e r e i g n t y .  22  In the result, the S u p r e m e Court d e c l a r e d G e o r g i a ' s legislation void a n d the judgment a nullity b e c a u s e it w a s repugnant to the constitution, laws a n d treaties of the United States.  2 1  Above n 1 at 580.  2 2  This distinction and its implications were developed in full in Chapter 2.  69  WORCESTER  Worcester  V GEORGIA  IN C A N A D A AND AUSTRALIA?  v Georgia e n c a p s u l a t e s the c o m m o n law legal doctrine of inherent  Aboriginal self-government, w h i c h originates in British imperial law. S i n c e both C a n a d a and Australia w e r e c o l o n i s e d by Britain and founded on British colonial c o m m o n law, this doctrine is applicable in both C a n a d a and Australia. I c o n s i d e r first the C a n a d i a n and then the Australian judicial treatment of this c a s e .  Canada: A Selective Embracing  T h e inherent right of Aboriginal self-government is r e c o g n i s e d in C a n a d a however, this is primarily through g o v e r n m e n t p o l i c y .  23  Although the courts h a v e c o m m e n t e d  o n the issue, indicating there may be a c o m m o n law right constitutionally protected by section 35(1) of the Constitution Act 1982, the i s s u e has not b e e n c o n c l u s i v e l y d e c i d e d by the S u p r e m e Court of C a n a d a .  2 4  C o u r t s have, however, r e c o g n i s e d  principles emanating from Worcester v Georgia as principles of British colonial c o m m o n law applicable in C a n a d a . T h e most recent and c o m p r e h e n s i v e  2 3  The federal government's policy, "Aboriginal Self-Government: The Government of Canada's Approach to the implementation of the Inherent Right of the Negotiation of Aboriginal Self-Government" (1995) includes the statement that: The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institution, and with respect to their social relationships.  2 4  As mentioned in Chapter 1, in interpreting section 35(1) and determining the content of Aboriginal rights, courts must have regard to the common law.  70  consideration of the relevance of Worcester  v Georgia a n d the inherent right of self-  g o v e r n m e n t w a s a first instance d e c i s i o n by the S u p r e m e Court of British C o l u m b i a in CampbellvBritish  Columbia  25  T h e first significant statement o n the applicability of Worcester Connelly  v Woolrich  (186 7 ) ,  2 6  v Georgia w a s in  a c a s e d e c i d e d just nine d a y s after C a n a d i a n  Confederation. M o n k J reviewed the M a r s h a l l trilogy a n d c o n c l u d e d that the assertion of British sovereignty did not affect the pre-existing c u s t o m a r y law of the C r e e Nation. M o n k J wrote:  Will it be c o n t e n d e d that the territorial rights, political organization s u c h a s it w a s , or the law a n d u s a g e s of the Indian tribes, w e r e abrogated -- that they c e a s e d to exist w h e n t h e s e two E u r o p e a n nations b e g a n to trade with the Aboriginal o c c u p a n t s ? In my opinion, it is b e y o n d controversy that they did not -- that so far from being a b o l i s h e d , they w e r e left in full force, a n d w e r e not e v e n modified in the slighted d e g r e e in regard to the civil rights of the natives. A s bearing upon this point, I cannot do better than to cite the d e c i s i o n of a learned a n d august tribunal - the S u p r e m e Court of the United States. In the celebrated c a s e of Worcester  against the State of Georgia,  Chief Justice  M a r s h a l l . . . said . . . [Monk J set out in length p a s s a g e s I h a v e already cited] T h o u g h s p e a k i n g more particularly of Indian lands a n d territories, yet the  25  Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333.  26 (1867) 11 L.C.J 197.  71 o p i n i o n of the Court a s to the m a i n t e n a n c e of the laws of the A b o r i g i n e s is manifest throughout. T h e principles laid d o w n in this judgment, admit of no doubt.  ... I h a v e no hesitation in s a y i n g that, adopting t h e s e v i e w s of the question under consideration ... the Indian political a n d territorial rights, l a w s a n d u s a g e s remained in full force - both at A t h a b a s k a a n d in the H u d s o n B a y region, previous to the Charter of 1670 a n d e v e n after that date, a s will a p p e a r hereafter.  27  M o n k J , c o n c e d i n g that the A t h a b a s k a district w a s within the H u d s o n B a y territories, c o n c l u d e d that although the c o m m o n law prevailed, it had a very restricted application:  ... only a m o n g , and in favour of, a n d against t h o s e "who b e l o n g e d to the C o m p a n y or w e r e living under them". It did not apply to the Indians, nor w e r e the native laws or c u s t o m s a b o l i s h e d or modified, a n d this is u n q u e s t i o n a b l y true in regard to their civil rights. It is e a s y to c o n c e i v e , in the c a s e of joint o c c u p a t i o n of extensive countries by E u r o p e a n s a n d native nations or tribes, that two different s y s t e m s of civil a n d e v e n criminal law m a y prevail. History is full of s u c h instances, a n d the d o m i n i o n s of the British C r o w n exhibit c a s e s of that kind. That Charter did introduce the E n g l i s h law, but did not, at the s a m e  27  Ibid al 205-207. Story J concurred in this decision.  72 time, m a k e it applicable generally or indiscriminately - it did not a b r o g a t e the Indian laws and u s a g e s . [ E m p h a s i s a d d e d ] .  28  M o n k J articulated two principles in this judgment. First, that the principles of selfg o v e r n m e n t articulated by M a r s h a l l C J in Worcester  v Georgia are principles of  British c o m m o n law. T h e y are therefore applicable in C a n a d a and throughout the British E m p i r e . S e c o n d l y , that although the focus of the M a r s h a l l trilogy w a s land, the principles relating to the continuing existence and recognition of A b o r i g i n a l law "is manifest  throughout".  29  J u s t i c e Strong's judgment in the S u p r e m e Court of C a n a d a ' s d e c i s i o n in St. Catherines  Milling & Lumber  Co. v R ("St. Catherines  Milling")  30  in 1887 a l s o  r e c o g n i s e d the c o m m o n law nature of the principles enunciated in Worcester Georgia.  T h i s d e c i s i o n w a s a p p e a l e d and affirmed by the Privy C o u n c i l .  3 1  v  Although  aboriginal self-government w a s not directly c o n s i d e r e d , the Court d i s c u s s e d aboriginal title in a m a n n e r that h a s implications for the recognition of selfgovernment.  28 /b/dat 213-214. 23 Ibid at 214. 3 0  (1887) 13 SCR 577 at 610 - 613. See also Ritchie CJ at 600, Fournier J at 638 who concurred with Ritchie CJ and Gwynne J at 650. Henry J at 639 dismissed the appeal and did not refer to United States case law.  31  St. Catherines Milling & Lumber Co. v. R. (1888) 10 App. Cas. 13. The Privy Council did not consider the applicability of United States case law in Canada but handed down its decision on the basis of the Royal Proclamation of 1763.  73  St. Catherines  Milling involved a dispute over the o w n e r s h i p of trees. T h e land in  q u e s t i o n had b e e n surrendered under the North West Treaty No. 3. T h e Privy C o u n c i l held that section 109 of the Constitution Act 1867 transferred all lands, m i n e s a n d minerals to the p r o v i n c e s . H o w e v e r , this transfer w a s subject to "an interest other than that of the P r o v i n c e in the s a m e " .  32  t h e Privy C o u n c i l held that  aboriginal title w a s s u c h a n interest a n d therefore e n c u m b e r e d the provincial title. A s a result, o n c e lands w e r e surrendered by treaty to the federal C r o w n , the lands b e c a m e the property of the province. C o n s e q u e n t l y , the federal timber l i c e n s e w a s invalid a s the federal government's interest in the land a n d the trees had c e a s e d w h e n the land w a s s u r r e n d e r e d .  33  In the S u p r e m e Court of C a n a d a , S t r o n g J r e c o g n i s e d the origin of the doctrine of aboriginal rights, w h i c h includes self-government, a s the c o m m o n law, rather than the Royal Proclamation  of 1763.  3A  Strong J also referred to the c o n c e p t of "domestic,  d e p e n d e n t nation", implicitly r e c o g n i s i n g the inherent right of aboriginal selfg o v e r n m e n t . T h e crucial a s p e c t of J u s t i c e Strong's j u d g m e n t is his recognition that:  ... the survival of pre-existing aboriginal rights a n d the c o n t i n u e d legal validity of e s s e n t i a l a s p e c t s of aboriginal internal self-government w e r e principles of  32  Ibid at 32. See also Shin Imai, "Treaty Lands and Crown Obligations: The "Tracts Taken Up" Provision" (2001) 27 Queen's Law Journal 1.  3 3  3 4  /b/d at 34. Above n 30 at 610.  ft  74  British c o m m o n law a n d w e r e to be applied in C a n a d i a n territories a s they had b e e n in what were now A m e r i c a n territories.  35  S e v e r a l y e a r s later, the S u p r e m e C o u r t of C a n a d a in Province of Canada  (1895)  36  adopted the p a s s a g e from Worcester  of Ontario v Dominion  v Georgia that r e c o g n i s e d  Indian nations a s "distinct, independent, political communities".  T h e question of self-government lay dormant until 1969, w h e n the N i s h g a Tribal Council  3 7  sought a declaration that aboriginal title h a d never b e e n lawfully  extinguished in their traditional territory in north-western British C o l u m b i a . In the S u p r e m e C o u r t of C a n a d a d e c i s i o n of Calder v British Columbia  (1973),  38  the C o u r t  split 3 to 3 o n the substantive i s s u e . J u d s o n J , writing for Matland a n d Ritchie J J , reflected o n the M a r s h a l l d e c i s i o n s , reaffirmed St. Catherine's aboriginal title h a d b e e n e x t i n g u i s h e d .  39  Milling a n d held that  Hall J , writing for S p e n c e J a n d L a s k i n C J  held that there w a s a "wealth of jurisprudence" affirming the c o m m o n law recognition of aboriginal rights to the p o s s e s s i o n a n d enjoyment of lands. Hall J also referred to the M a r s h a l l d e c i s i o n s and c o n s i d e r e d Johnson  v Mcintosh  "the outstanding judicial  p r o n o u n c e m e n t o n the subject of Indian rights a n d self-government".  35  40  Hall J held  Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (Written Argument, Plaintiff at 97).  36 (1895) 25 S.C.R. 434 at 3 7  Now the Nisga'a Lisims Government.  3 8  [1973] SCR 313. There was no judicial consideration of aboriginal land questions before this time, primarily due to legal restrictions prohibiting First Nations access to courts,  39  40  / b / d at 320. Ibid at 346. Calder concerned the question of land, therefore making Johnson v Mcintosh, not Worcester v Georgia, the most applicable case. However, as the reasoning in Worcester v Georgia, relies heavily on Johnson v Mcintosh, Hall J's  7 5  that aboriginal title had not b e e n extinguished. T h e 3 to 3 split w a s resolved by P i g e o n J w h o , although not c o m m e n t i n g o n the substantive issues, held that the declaration could not be granted b e c a u s e a fiat had not b e e n obtained. D e s p i t e the ultimate d e c i s i o n , it is significant that all six justices w h o dealt with the substantive i s s u e s a g r e e d that Worcester  v Georgia w a s p e r s u a s i v e in C a n a d i a n jurisprudence  a n d that aboriginal title had existed in British C o l u m b i a a s a matter of c o m m o n law.  After Calder and the introduction of the Constitution Act 1982, the S u p r e m e Court of C a n a d a in Guerin v Canada  41  referred to Worcester  v Georgia in recognising that  aboriginal rights arise from prior o c c u p a t i o n and reaffirming the inherent nature of aboriginal rights.  In 1990, in R v S / o u /  42  L a m e r J , a s he then w a s , writing for a u n a n i m o u s court, held  that G r e a t Britain had "nation-to-nation relations" with indigenous nations. H e referred to British and F r e n c h efforts to s e c u r e military alliance during the S e v e n Y e a r ' s W a r a s e v i d e n c e of their regard of First N a t i o n s a s "independent L a m e r J quoted M a r s h a l l C J in Worcester  nations".  43  v Georgia in support of this position:  judgment also implicitly builds on concepts articulated in Worcester v Georgia, At times, Hall J seems to have used the two cases interchangeably, particularly when discussing the doctrine of discovery. 4 1  [1984] 2 S.C.R. 335 at 377 per Dickson J .  4 2  [1990] 1 S.C.R. 1025. The question before the Court was whether an undertaking by a British general to the Hurons in 1760 was a treaty under s 88 of the Indian Act, R.S.C., 1985, c. I-5. See also Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333 (Written argument of the Nisga'a Tribal Council at 17 -19).  43  Ibid at 1053, "[t]he Indian nations were regarded in their relations with the European nations which occupied North America as independent nations".  76  ... s u c h w a s the policy of G r e a t Britain towards the Indian nations inhabiting the territory from w h i c h s h e e x c l u d e d all other E u r o p e a n s ; s u c h her c l a i m s , and s u c h her practical exposition of the charters s h e had granted: she c o n s i d e r e d t h e m a s nations c a p a b l e of maintaining the relations of p e a c e and war: of governing t h e m s e l v e s , under her protection: and s h e m a d e treaties with them, the obligation of w h i c h she a c k n o w l e d g e d . [ E m p h a s i s a d d e d ] .  A s M o n k J in Connelly  44  v Woolrich had noted, L a m e r J r e c o g n i s e d that aboriginal  rights e n c o m p a s s rights to both land a n d self-government:  T h e British C r o w n r e c o g n i z e d that the Indians had certain o w n e r s h i p rights o v e r their land, it sought to establish trade with t h e m w h i c h w o u l d rise a b o v e the level of exploitation a n d give t h e m a fair return. It also a l l o w e d them a u t o n o m y in their internal affairs, intervening in this a r e a a s little a s possible. [Emphasis a d d e d ]  4 5  L a m e r J c o n c l u d e d by distinguishing b e t w e e n absolute and modified sovereignty a n d recognising the b a s i s of the inherent right of self-government:  44  Ibid at 1053 - 1043, quoting above n 1 at 548 - 549.  «/tttfaM055.  77  R e l a t i o n s with the Indian tribes fell s o m e w h e r e b e t w e e n the kind of relations c o n d u c t e d b e t w e e n s o v e r e i g n states a n d the relations that s u c h states had with their o w n c i t i z e n s .  46  S e v e r a l years later in R v Van der Peet,  47  that before M a r s h a l l C J in Worcester  L a m e r C J grappled with a n issue similar to  v Georgia.  In determining the p u r p o s e s behind  s e c t i o n 35(1), L a m e r C J referred to M a r s h a l l C J ' s d e c i s i o n s , finding the "relevance of t h e s e c a s e s a r i s e s from their articulation of g e n e r a l principles, rather than their specific legal h o l d i n g s " . C h i e f J u s t i c e L a m e r held that section 35(1) r e c o g n i s e d that 48  distinctive aboriginal societies o c c u p i e d North A m e r i c a prior to E u r o p e a n settlement a n d that section 35(1) attempted to reconcile aboriginal prior o c c u p a t i o n with C r o w n sovereignty.  49  Importantly, the broad definition of what activities constituted a n  aboriginal right o p e n e d the d o o r for c l a i m s that section 35(1) included a right of selfgovernment.  50  T h e question of self-government w a s explicitly c o n s i d e r e d in R v  Pamajewon.  5v  S h a w a n a g a a n d E a g l e L a k e First Nations m e m b e r s , convicted of violating g a m b l i n g prohibitions, argued they were exercising a right of self-government protected by s  « At 1038. 4 7  [1996] 2 S.C.R. 507.  48  Ibid at 541.  49  Ibid at 538 - 539, 547 - 548. Lamer C J , at 544, also adopted the "distinct political communities" from Worcester v Georgia, above n 1 at 599.  5 0  Christopher D. Jenkins, "John Marshall's Aboriginal Rights Theory and its Treatment in Canadian Jurisprudence" (2001)  51  [1996] 2 S.C.R. 821.  35 U.B.C. L. Rev. 1.  78 35(1). This argument w a s rejected. T h e S u p r e m e C o u r t of C a n a d a indicated that although a c l a i m to self-government could be a d v a n c e d , it must not be in excessively general terms.  52  T h i s w a s reiterated in Delgamuukw  v British  Columbia  ("Delgamuukw ') 1  53  In Delgamuukw,  the G i t k s a n and W e t ' s u w e t ' e n c l a i m e d a g e n e r a l right to g o v e r n  people residing within their traditional lands and to determine whether provincial laws applied. This w a s a claim for "ownership and j u r i s d i c t i o n " , than inherent s e l f - g o v e r n m e n t .  55  54  a broader c l a i m  T h e jurisdiction claim e x t e n d e d b e y o n d G i t k s a n  and  W e t ' s u w e t ' e n m e m b e r s to all people within the lands c l a i m e d . T h e Court of A p p e a l d i s m i s s e d the claim for jurisdiction on the b a s i s that the Constitution Act exhaustively divided legislative p o w e r b e t w e e n the federal and  1867  provincial  g o v e r n m e n t s and a s a result no constitutional s p a c e r e m a i n e d for aboriginal jurisdiction.  56  This d e c i s i o n w a s a p p e a l e d , h o w e v e r w h e n this c a s e c a m e before the  S u p r e m e Court of C a n a d a , the i s s u e s relating to aboriginal title w e r e the  principal  focus of the a r g u m e n t s before the Court, particularly the oral arguments. H o w e v e r ,  52  Ibid at 832, 835 per Lamer C J ; at 837 per L'Hereux-Dube J.  5 3  [1997] S.C.R. 1010. The initial statement of claim asserted a right to lands and jurisdiction. However, at the Supreme Court of Canada, the claim had been reduced to land only.  54  Delgamuukw v British Columbia [1997] S.C.R. 1010 (Statement of Claim). The statement of claim included a claim for jurisdiction to govern themselves, their territory, maintain institutions and to confirm ownership and jurisdiction, at para. 56, 56(A), 57, 58, 59, 60 - 63. There was also an application for a declaration that Provincial jurisdiction over the Territory (a defined area) is "subject to the Plaintiffs right to ownership and jurisdiction". See also Delgamuukw v British Columbia [1997] S.C.R. 1010 (Opening Statement of the plaintiff at 21). This was essentially a claim for absolute sovereignty.  55  The claim was modified and at the Court of Appeal, counsel distinguished between absolute sovereignty and modified sovereignty (although not in these precise terms).  56  Delgamuukw v British Columbia (1993)104 DLR (4th) 470 at 520 per Macfarlane J .  79 the S u p r e m e C o u r t of C a n a d a did c o m m e n t a n d e x p r e s s l y left o p e n the question of w h e t h e r self-government is a right protected by s e c t i o n 35(1). L a m e r C J wrote:  In the courts below, c o n s i d e r a b l e attention w a s given to the question of w h e t h e r s. 35(1) c a n protect a right to self-government, a n d if so, what the contours of that right are. T h e errors of fact m a d e by the trial j u d g e , a n d the resultant need for a new trial, m a k e it i m p o s s i b l e for this C o u r t to determine w h e t h e r the claim to self-government h a s b e e n m a d e out. M o r e o v e r , this is not the right c a s e for the C o u r t to lav d o w n the legal principles to g u i d e future litigation. T h e parties s e e m to h a v e a c k n o w l e d g e d this point, p e r h a p s implicitly, by giving the a r g u m e n t s o n self-government m u c h l e s s weight o n a p p e a l . O n e s o u r c e of the d e c r e a s e d e m p h a s i s o n the right to selfg o v e r n m e n t on a p p e a l is this Court's judgment Pamajewon.  T h e r e , I held that  the rights to self-government, if they existed, cannot be framed in e x c e s s i v e l y g e n e r a l terms. T h e appellants did not h a v e the benefit of my j u d g m e n t at trial. Unsurprisingly, a s c o u n s e l for the W e t ' s u w e t ' e n specifically c o n c e d e s , the appellants a d v a n c e d the right to self-government in very broad terms, a n d therefore in a m a n n e r not c o g n i z a b l e under s. 35(1). [ E m p h a s i s a d d e d ] .  57  A s a result, L a m e r C J c o n c l u d e d that, "the i s s u e of self-government will fall to b e determined at t r i a l " .  57  Aboven52 at 1114 -1115.  » Ibid at 1115.  58  Therefore, after Delgamuukw,  the question of w h e t h e r the  80  c o m m o n law right of self-government w a s constitutionally protected under section 35(1) w a s still o p e n for question. H o w e v e r , the C o u r t did reiterate the limitation e x p r e s s e d in R v Pamajewon  that a claim of self-government must not be m a d e in  e x c e s s i v e l y general terms.  Finally, in 2 0 0 1 , the S u p r e m e Court of British C o l u m b i a c o n s i d e r e d the validity of the self-government provisions in the N i s g a ' a Treaty in Campbell  v British  Columbia.  W i l l i a m s o n J a c k n o w l e d g e d that a limited form o f self-government, w h i c h the N i s g a ' a maintained after the assertion of sovereignty, w a s modified in the N i s g a ' a treaty a n d protected by section 3 5 ( 1 ) .  59  In reaching this d e c i s i o n , C a m p b e l l J stated that:  A n y d i s c u s s i o n of the recognition by courts of the survival of a limited right of self-government in aboriginal p e o p l e s in North A m e r i c a must start with three celebrated d e c i s i o n s of the long serving C h i e f J u s t i c e of the United States, J o h n M a r s h a l l , all d e c i d e d in the first third of the 19th c e n t u r y .  60  W i l l i a m s o n J relied o n Marshall C J ' s c a s e s , particularly in their c o n s i d e r a t i o n of British imperial p o l i c y .  61  H e referred to Johnson  v Mcintosh  a s r e c o g n i s i n g that the  exertion of British sovereignty had not extinguished, but only d i m i n i s h e d , the 5 9  Above n 25 at 376. See also s 24 of the Nisga'a Treaty, where "modification" not "extinguishment" was used.  » Ibid at 356. 6 1  /h/d.  81  inherent aboriginal right to self-government." including Worcester  62  R e l y i n g o n M a r s h a l l C J ' s judgments,  v Georgia, W i l l i a m s o n J . found support for a n aboriginal right to  self-government, r e c o g n i s e d by section 35(1) a n d constitutionally enforceable against the federal government.  In considering the c o m m o n law doctrine of a n inherent right of aboriginal selfgovernment, C a n a d i a n courts have consistently l o o k e d to M a r s h a l l C J ' s jurisprudence, including his judgment in Worcester  v Georgia. A l t h o u g h it h a s not  b e e n ultimately d e c i d e d whether section 35(1) i n c l u d e s a n inherent right of selfgovernment, it is clear that s u c h a right exists. C a n a d i a n courts h a v e r e c o g n i s e d the s o u r c e of this inherent right a s prior o c c u p a t i o n a n d prior sovereignty, a recognition largely e m b r a c i n g notions articulated in Worcester  v Georgia.  63  These decisions  h a v e r e c o g n i s e d that the nature of the principles p r o n o u n c e d by M a r s h a l l C J in Worcester  v Georgia were principles that had ripened into a British c o m m o n law  doctrine of self-government. A s a result of this nature a s a c o m m o n law doctrine, Worcester  v Georgia has b e e n r e c o g n i s e d a s forming part of C a n a d i a n c o m m o n  law.  Australia: Denial or Merely a Misunderstanding?  « /b/dat 357. 6 3  Above n 50.  82 In Australia, there is no c o m p a r a b l e self-government d i s c o u r s e . Despite the s e e m i n g l y i n s e p a r a b l e relationship between indigenous c o m m u n a l land title and recognition of self-government and d e c i s i o n - m a k i n g powers, d i s c u s s i o n of selfg o v e r n m e n t and indigenous sovereignty has effectively b e e n s i l e n c e d in legal discourse.  64  T h e first judicial consideration of Aboriginal rights and title w a s by the F e d e r a l C o u r t in 1971 in Milirrpum v Nabalco  65  Cooper  v Stuarf  56  B l a c k b u r n J relied on L o r d W a t s o n ' s j u d g m e n t in  in maintaining the legal fiction that Australia w a s terra nullius and  a settled colony under the doctrine of discovery. Despite e m b r a c i n g this b r o a d e n e d notion of the doctrine of d i s c o v e r y , S t a t e s c a s e law in A u s t r a l i a .  68  67  Blackburn J rejected the operation of United  Worcester v Georgia w a s restricted to its facts, the  validity of G e o r g i a ' s legislation, and d e e m e d not r e l e v a n t .  69  T h i s w a s despite the  recognition that Marshall C J "surveyed the history of colonization on the North A m e r i c a n continent".  70  B l a c k b u r n J c o n c l u d e d that native title w a s a b r o g a t e d by the  doctrine of terra nullius. ^ 7  6 4  See Michael Mansell, "The Bicentenary and Aboriginal Sovereignty" (1988) Law Institute Journal 1206 at 1207. See also Larissa Behrendt, "Slicing the Circle: Treaty, Native Title, Aboriginal Sovereignty and the Compartmentalizing of Indigenous Rights in Australia" (Paper presented to the Indigenous Bar Association Conference in Ottawa, 2000) [unpublished] in a section titled, "The S-Word" at 4; Dianne Otta, "A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia" [1995] 21 Syracuse J . Int'l L. & Com. 65.  65  Milirrpum v Nabalco PtyLtd and the Commonwealth (1971) FLR 141. Similar to Canada, Aboriginal people were denied access to the courts for numerous reasons, including a perceived inability to take the oath and therefore give evidence.  66  Cooper v Stuart (1889) App Cas 286.  67  Mabo v Queensland (1992) 175 CLR 1 ("Mabo (No. 2j") per Brennan J . Above n 65 at 218. /b/c/at 216.  7  °/b/d at 215.  71  /6/d at 262.  83  T h e question of absolute Aboriginal sovereignty w a s raised in Coe v  Commonwealth  (1979) ("Coe (No. 1)"). T h e High C o u r t rejected this absolute sovereignty claim o n 72  the basis that the validity of the C r o w n ' s sovereignty cannot be c h a l l e n g e d . rejected the adoption of M a r s h a l l C J ' s judgment in Cherokee  73  Gibbs J  Nation v Georgia,  the  s e c o n d d e c i s i o n in the M a r s h a l l trilogy, on the b a s i s that the history of the colonial relationship in the United S t a t e s w a s "different" from Australia.  In 1992, the H i g h Court of A u s t r a l i a r e c o g n i s e d native title in Mabo (No. 2). With inherently conflicting r e a s o n i n g , D a w s o n J distinguished United S t a t e s c a s e s , including Worcester  v Georgia, o n the b a s i s that First N a t i o n s w e r e  regarded a s "domestic d e p e n d e n t nations", retaining a certain d e g r e e of sovereignty but still r e c o g n i s e d that native title o w e s m u c h to the celebrated j u d g m e n t of M a r s h a l l C J in Johnson  Queensland,  75  v. Mcintosh.  74  In Wik Peoples  v  Kirby J also distinguished United S t a t e s jurisprudence b e c a u s e  of the recognition of aboriginal p e o p l e s a s nations with inherent p o w e r s of a limited sovereignty that h a d n e v e r b e e n extinguished. Kirby J stated that this is not the relationship that indigenous people of Australia enjoy with the A u s t r a l i a n legal s y s t e m . In Coe (No. 2),  76  M a s o n C J affirmed G i b b s J  7 2  (1979) 24 A.L.R. 118. This case and its associated problems were considered in detail in Chapter 2.  7 3  /bid at 132 per Jacobs J, at 138 per Murphy J, at 138 per Gibbs J and at 128 per Aitkin J concurring with Gibbs J .  7 4  Above n 67 at 135 per Dawson J .  75  Wik Peoples v Queensland (1996) 141 A. L. R. 129.  7 6  Coe  v Commonwealth Nation v Georgia.  (1993) 118 A.L.R. 193 ("Coe  (No.  2j"). This was referring to Marshall CJ's decision in  Cherokee  84 statement in Coe (No.1) that the notion of d o m e s t i c d e p e n d e n t nation is not a p p l i c a b l e in Australia.  A u s t r a l i a n courts h a v e consistently rejected notions of Aboriginal sovereignty and the applicability of M a r s h a l l C J ' s jurisprudence, including Worcester v Georgia.  W H Y DOES CANADA ACCEPT WHILE AUSTRALIA REJECT WORCESTER  V  GEORGIA?  J u s t i c e C h a p m a n in the N e w Z e a l a n d S u p r e m e Court decision in R v  Symonds,  77  classified the M a r s h a l l trilogy a s clearly b a s e d o n :  the principles of the c o m m o n law as applied and adopted from the earliest times by the colonial l a w s .  7 8  T h i s is further recognition of the imperial colonial origins, as articulated in  Worcester  v Georgia that u n d e r s c o r e s the doctrine of Aboriginal self-government. A s a result, Worcester  v Georgia is relevant in both C a n a d a and Australia. T h e question then  7 7  (1847) [1840- 1932] NZPCC 387.  78  Ibid at 392. He was actually referring to Cherokee Nation v Georgia, however, from the preceding paragraphs, this statement clearly extrapolates to Johnson v Mcintosh and Worcester v Georgia. See also the Privy Council decision in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 A.C. 399 (P.C.), where the Privy Council held that the common law could affirm and give effect to rights held under Aboriginal law.  85 b e c o m e s , w h y has this doctrine b e e n r e c e i v e d with s u c h different r e s p o n s e s in C a n a d a and Australia?  A u s t r a l i a h a s not e m b r a c e d the doctrine of self-government b e c a u s e of a flawed understanding of the d e c i s i o n in Worcester  v Georgia a n d the doctrine of self-  g o v e r n m e n t . T h e principal r e a s o n A u s t r a l i a n courts h a v e g i v e n for rejecting this j u r i s p r u d e n c e is that Australia is "different" from the United States. But isn't C a n a d a also "different" from the United S t a t e s ?  T h e "difference" that A u s t r a l i a n courts h a v e relied on in rejecting the M a r s h a l l trilogy c a n be s e e n in G i b b s J's j u d g m e n t in Coe (No. 1) w h e r e he states that:  ... it is not p o s s i b l e to say, a s w a s said by M a r s h a l l C J ... that the Aboriginal people of Australia are o r g a n i s e d a s a "distinct political society separated from others", or they h a v e b e e n uniformly treated a s a state. [ E m p h a s i s added].  79  T h e "difference" referred to s e e m s to be merely that treaties h a v e not b e e n s i g n e d in A u s t r a l i a but h a v e b e e n s i g n e d in the United States. H o w e v e r , the lack of treaties is a matter of historical fact a n d d o e s not infer that Australia is not legally required to r e c o g n i s e Aboriginal sovereignty a n d Aboriginal self-government. If the "difference"  7 9  Above n 72 at 128 - 129. The reference is to Marshall CJ in Cherokee Nation v Georgia above n 3 at 16.  86  is a social Darwinist indication of the evolutionary s c a l e , o n w h i c h Aboriginal A u s t r a l i a n s are often p l a c e d at the bottom, this is u n a c c e p t a b l e .  H o w e v e r , the rejection of this j u r i s p r u d e n c e in A u s t r a l i a is not b e c a u s e of a "difference" b e t w e e n the treatment of i n d i g e n o u s p e o p l e s in the United S t a t e s a n d the treatment of i n d i g e n o u s p e o p l e s in A u s t r a l i a . Rather, the rejection of this jurisprudence is b a s e d on a mistaken interpretation of Worcester  v Georgia,  the  M a r s h a l l trilogy a n d the doctrine of self-government. T h e real false a s s u m p t i o n that Australian courts relied on in interpreting a n d rejecting the Marshall jurisprudence is that it r e c o g n i s e s absolute Aboriginal sovereignty that exists in opposition to C r o w n sovereignty.  Therefore, rather than relying o n a n a s s u m p t i o n of difference between Australia and the United S t a t e s in rejecting Worcester  v Georgia, Australian courts (and plaintiffs)  h a v e construed the M a r s h a l l trilogy in s u c h a m a n n e r so that "domestic d e p e n d e n t nations" is equivalent to absolute W e s t p h a l i a n state sovereignty that exists in opposition to C r o w n s o v e r e i g n t y .  80  T h e C o u r t interpreted the M a r s h a l l trilogy in this  w a y for two r e a s o n s . First, b e c a u s e that w a s the m a n n e r it w a s presented to the Court in the statement of claim a n d s e c o n d l y , b e c a u s e of an e m b e d d e d notion (or the a c c e p t a n c e of the plaintiffs e m b e d d e d notion) that every claim to sovereignty must be a claim to s e p a r a t e a n d absolute state sovereignty. T h i s is the flawed a s s u m p t i o n upon w h i c h this jurisprudence w a s rejected. With respect, A u s t r a l i a n  8 0  These terms are explained in detail in Chapter 2.  87  courts faijed to c o m p r e h e n d the distinction b e t w e e n absolute state sovereignty, a notion r e c o g n i s e d in international law a n d identified with the P e a c e of W e s t p h a l i a , a n d modified sovereignty, w h i c h d o e s not c h a l l e n g e the C r o w n sovereignty and in fact exists harmoniously with C r o w n sovereignty.  Therefore, the divergent interpretation of Worcester  v Georgia in C a n a d a a n d  Australia is not b e c a u s e C a n a d i a n law is s o m e h o w more "similar" to United S t a t e s law, but rather, b e c a u s e of a flawed understanding of the c a s e in Australia. A u s t r a l i a n courts have failed to c o m p r e h e n d that Worcester  v Georgia is a statement  of British colonial c o m m o n law a n d not merely A m e r i c a n law.  CONCLUSION  Worcester  v Georgia is a n historic c a s e , r e c o g n i s i n g a n inherent aboriginal right of  self-government. W h e n C h i e f J u s t i c e Marshall h a n d e d d o w n the United S t a t e s S u p r e m e Court d e c i s i o n in 1832, this pre-existing right of self-government had ripened into a rule of c o m m o n law a p p l i c a b l e to British c o l o n i e s .  81  Inherent self-  g o v e r n m e n t has b e e n c o n s i d e r e d by s e v e r a l C a n a d i a n courts a n d a c c e p t e d by a C a n a d i a n court. In contrast, A u s t r a l i a n courts a n d g o v e r n m e n t s h a v e v e h e m e n t l y rejected the notion that Aboriginal sovereignty a n d self-government exist a n d have sought to distinguish the situation in the United States. T h e explanation of  81  Above n 35 at 89.  88  "difference", u s e d by the High C o u r t of Australia in Coe (No. 1), d o e s not hold up under scrutiny, g i v e n the imperial colonial c o m m o n law notions underpinning M a r s h a l l C J ' s judgment. T h e c h a l l e n g e A u s t r a l i a n courts n o w face is recognising the previously flawed interpretation of this c a s e a n d moving b e y o n d this interpretation in order to r e c o n s i d e r a n d r e c o g n i s e the applicability in Australia of Worcester  v  Georgia and its consideration of self-government a s a statement of British c o m m o n law.  89  Chapter Four NATIVE TITLE & SELF-GOVERNMENT  In 1992, a revolutionary High C o u r t d e c i s i o n altered the w a y in w h i c h A b o r i g i n a l land rights w e r e understood. In Mabo (No. 2), for the first time there w a s judicial :  recognition of native title, a n Aboriginal right to land. A l t h o u g h this d e c i s i o n instigated a w i d e variety of d i s c u s s i o n s , I explore the relationship between native title and self-government. B y a n a l y s i n g native title in this manner, o n e realises that self-government is r e c o g n i s e d a s a n a s p e c t of native title a n d already o p e r a t e s within the Australian legal s y s t e m .  In this chapter, I outline the d e c i s i o n in Mabo (No. 2) before c o n s i d e r i n g two a r g u m e n t s that c h a l l e n g e the contemporary a c c e p t a n c e of a manufactured separation between land and sovereignty.  B y considering native title and its inter-relationship with self-government, it b e c o m e s apparent that self-government c a n be, a n d is, r e c o g n i s e d by the Australian legal s y s t e m . In Mabo (No. 2), B r e n n a n J wrote:  In d i s c h a r g i n g the duty to d e c l a r e the c o m m o n law of Australia, this C o u r t is not free to adopt rules that a c c o r d with c o n t e m p o r a r y notions of justice a n d  1  (1992) 175 CLR 1.  90  h u m a n rights if their adoption would fracture the skeleton of principle w h i c h g i v e s the body of our law its s h a p e and internal c o n s i s t e n c y .  2  Importantly, the recognition of self-government, a s w a s the c a s e with the recognition of native title, d o e s not fracture the skeleton of the Australian legal s y s t e m .  THE LAND RIGHTS MOVEMENT IN AUSTRALIA  T h e r e h a s b e e n a long history of protest d e m a n d i n g Aboriginal land rights in A u s t r a l i a . T h e m o d e r n land rights m o v e m e n t b e g a n with the Gurindji's W a v e Hill 3  walk-off in the 1 9 6 0 ' s , s a w the Y o l g n u ' s unsuccessful struggle to prevent bauxite 4  mining o n their traditional l a n d , the establishment and m a i n t e n a n c e of the 5  2  Ibid a\ 29.  3  See Henry Reynold's work for a history of early protest, in particular The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (Ringwood: Penguin, 1982). For the lead-up to the modern land rights movement, see David Hollingsworth, Race and Racism in Australia (Katoomba: Social Sciences Press, 1998) at 168.  4  The first formal protest for land was the walk-off at Wave Hill cattle station by the Gurindji people. In August 1966 the Gurindji people went on strike demanding wages and the return of their traditional lands. Although their demand was rejected, the Gurindji camped on their land, breaking Australian law. Support was found throughout the northern Territory and across Australia and eventually the Gurindji won title to part of their land. In an important symbolic gesture, Prime Minister Golf Whitlam poured earth through the hands of Vincent Lingiari, a Gurindji elder and a principal activist in the Wave Hill walkoff. See Yunupingu, Galarrwuy, Our Land is Our Life: Land Rights- Past, Present and Future. (St Lucia: University of Queensland Press, 1997) at 5.  5  In the 1960's, the Federal Government decided to establish a bauxite mine in Arnhem land, traditional Yolgnu territory. In response the Yolgnu people sent a petition to the House of Representatives demanding their land rights be respected. The petition was on bark, with a border of paintings illustrating the importance of the land, and in the centre a written explanation of the paintings. It was a protest that involved both traditional and non-traditional ways of expressing the importance of the land. The bark petition provoked legal action and a government inquiry. Despite this, the mine went ahead. Justice Blackburn, of the Northern Territory Supreme Court, had to decide whether the Yolgnu had any legal right to their land. In Milirrpum v Nabalco (1971) 17 FLR 141, he decided that the common law of Australia was not "cogniscant of native title" and that the Yolgnu had "a more cogent feeling of obligation to the land than ownership of it". The decision of Milirrpum v Nabalco was strongly criticised and even the High Court of Australia had reservations. Despite the negative result of Milirrpum v Nabalco, where native title was not recognised, some positive actions did follow as there was a growing awareness of Aboriginal rights. The Whitlam Labor Government appointed the Woodward Royal Commission, which recommended a statutory land rights scheme. This scheme was enacted, and after some  91  Aboriginal tent e m b a s s y , and culminated in the High Court's d e c i s i o n in Mabo 6  (No.  2). High h o p e s followed this d e c i s i o n and it w a s c o n s i d e r e d by m a n y to be the culmination of 30 years of activism in the m o d e r n land rights m o v e m e n t . H o w e v e r , this has not proved to be the c a s e . C o n s e r v a t i v e legislation and increasingly c o n s e r v a t i v e interpretations of native title principles has meant that most d e v e l o p m e n t s s i n c e Mabo (No. 2) h a v e e r o d e d , rather than d e v e l o p e d i n d i g e n o u s rights.  THE MABO DECISIONS  In M a y 1982, three Murray (Mer) Islanders, E d d i e M a b o , David P a s s i and J a m e s R i c e , instituted p r o c e e d i n g s against the State of Q u e e n s l a n d on behalf of the M e r i a m p e o p l e . T h e y argued that the M e r i a m people had o c c u p i e d the islands s i n c e time i m m e m o r i a l in established c o m m u n i t i e s with unique social and political organization. A s a result, they a r g u e d that they had native title rights. In r e s p o n s e , Q u e e n s l a n d d e n i e d that the M e r i a m p e o p l e had any native title rights at all.  unfavourable amendments by the Fraser Liberal Government due to the pressure from mining and pastoral industry groups, it was passed as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Other states followed the Northern Territory and enacted similar legislation. Despite the watering down of the Northern Territory legislation by the Fraser Government, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) has been very important. It was the first legislative recognition of an Aboriginal right to land. It has allowed Aboriginal people legal recognition of what they have always known, that the land is theirs. By 1996 more than 50% of the Northern Territory had been handed back. 6  The tent embassy was set up in 1972 in response to Prime Minister William McMahon's Australia Day speech. A number of Aboriginal people, including Paul Coe, Gary Foley and Dennis Walker (founders of the Black Panther Party of Australia) set up a beach umbrella (which was later replaced by tents) opposite Parliament house in Canberra. It was called the Aboriginal Embassy because, as Gary Foley stated, "Aborigines were treated like aliens in their own land." The tent embassy gained huge support across Australia for Aboriginal land rights and remains today. Gary Foley, quoted in David Hollingsworth, Race and Racism in Australia (Katoomba: Social Sciences Press, 1998) at 175.  92  Queensland  H o w e v e r , just to be sure, the Q u e e n s l a n d G o v e r n m e n t e n a c t e d the Coast Islands Declaratory  Act 1985 (Qld) ( " Q u e e n s l a n d Act"). T h e Q u e e n s l a n d Act:  ... retrospectively a b o l i s h e d all s u c h rights and interests as the Islanders may h a v e o w n e d and enjoyed before its e n a c t m e n t .  In 1988, in Mabo v Queensland  Murray 7  ("Mabo (No. 1)"), the High Court held that if the 8  Q u e e n s l a n d A c t w e r e sufficiently "clear and plain" it would extinguish native title. H o w e v e r , the majority held that the Q u e e n s l a n d A c t w a s invalid b e c a u s e it c o n t r a v e n e d s e c t i o n ' s 9 and  10 of the  Racial Discrimination  Act (1975) (Cth).  9  The  q u e s t i o n of whether the M e r i a m people had native title rights o v e r their l a n d s w a s still u n d e c i d e d .  O n 3 J u n e 1992 the High Court h a n d e d d o w n its d e c i s i o n in Mabo (No. 2). F o r the first time in Australia there w a s recognition of native title as a c o m m o n law right. T h e H i g h Court held that native title is a legal right to land, r e c o g n i s e d by the c o m m o n  7  Above n 1 at 196 per Mason CJ quoting Queensland counsel. See also at 210 where Brennan, Toohey and Gaudron JJ also quoted Queensland counsel: . It has the effect that those rights which might otherwise have survived annexation in 1879 are deemed not to have survived and, for the purposes of 1985, never to have survived.  8  (1988) 166 CLR 186.  9  Section 10 of the Racial Discrimination Act provides for rights to equality before the law. Brennan, Deane, Toohey and Gaudron JJ held that the Queensland Act was inconsistent with section 10(1) of the Racial Discrimination Act. Wilson and Dawson JJ dissented on this issue and Mason CJ did not comment. In regards to section 9 of the Racial Discrimination Act, Mason CJ, Wilson and Dawson JJ held that the Queensland Act was not inconsistent. Section 9 of the Racial Discrimination Act is the provision that declares racial discrimination to be unlawful. The High Court split on - this issue. The remaining judges did not comment on section 9.  93 law upon the colonisation of Australia, that continues until extinguished by the g o v e r n m e n t by c l e a r and plain intention. T h e High Court d e c l a r e d that:  ... the M e r i a m people are entitled a s against the w h o l e world to p o s s e s s i o n .  10  T h e H i g h Court's recognition of native title w a s not the creation of a n e w right previously foreign to the c o m m o n law, but an a c k n o w l e d g m e n t of the reception of native title into the c o m m o n law. A s G a r t h Nettheim c o m m e n t s :  T h e Mabo d e c i s i o n w a s revolutionary to the extent that it correctly applied the c o m m o n law after y e a r s of m i s a p p l i c a t i o n .  11  T h e judgement did not confine itself to Murray (Mer) Island. T h e High Court d e c l a r e d the c o m m o n law for all A u s t r a l i a .  12  T h i s c o m p l e x d e c i s i o n c o n s i d e r e d the impact of colonisation o n indigenous land rights, the doctrine of terra nullius, a n d the existence a n d limitations of native title rights and interests. Before c o n s i d e r i n g the implications of this c a s e for selfgovernment, it is n e c e s s a r y to c o n s i d e r a peculiar a s p e c t of this d e c i s i o n that 1 0  Above n 1 at 2. See also Brennan J at 76 and Toohey J at 217.  11  Garth Nettheim, Gary Meyers & Donna Craig, Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights (Canberra: Aboriginal Studies Press, 2002) at 238. For a more in depth discussion of this concept of law, see Ronald Dworkin, Law's Empire (Cambridge: Balknap Press, 1986) Cf: H.L.A Hart, The Concept of Law (Oxford: Clarendon Press, 1994).  1 2  Above n 1 at 2. See also Mason CJ and McHugh J at 15. See also Lisa Strelein, "Aboriginal Land Rights in Australia" (Native Title Research Unit at Australian Institute of Aboriginal and Torres Strait Islander Studies, 1999) [unpublished] at <http://www.firstpeoples.org/land_rights/australia/land_rights_in_australia.htm>.  94 distinguished land rights from sovereignty. T h i s distinction forms the basis for understanding both the current a n d potential relationship between native title a n d self-government in Australia.  In Mabo (No. 2), the High Court explicitly distinguished between questions of land rights a n d questions of sovereignty. A l t h o u g h this is partially a result of the particular question before the Court, a question of land rights, the High Court did e x p r e s s l y d r a w this distinction. T h e clearest e x p r e s s i o n of this distinction is by J u s t i c e Brennan.  J u s t i c e B r e n n a n distinguished between the C r o w n ' s title to a c o l o n y a n d the C r o w n ' s o w n e r s h i p of land in a c o l o n y .  13  H e noted that sovereignty v e s t e d in the C r o w n is of  two kinds, either "the power of government" or "title to the c o u n t r y " .  14  T h e distinction  is that the former is only c a p a b l e of belonging to a s o v e r e i g n w h e r e a s the latter c a n belong to a n y o n e . Further:  T h e acquisition of territory is chiefly the province of international law; the acquisition of property is chiefly the province of the c o m m o n l a w .  13  14  15  Ibid at 43-45. to/d at 44. Ibid.  1 5  95 A s a result of this distinction, the High Court w a s able to recognise native title without considering the question of the continuing e x i s t e n c e of modified Aboriginal sovereignty or Aboriginal s e l f - g o v e r n m e n t .  16  Therefore, self-government a n d native title are c o n s i d e r e d to be two distinct c o n c e p t s . A l t h o u g h I a g r e e that the inherent right of self-government is a s e p a r a t e right, I a r g u e that t h e s e two rights inter-relate a n d that in fact, the recognition of native title n e c e s s a r i l y involves recognition a n d e x e r c i s e of a s p e c t s of the inherent right of self-government.  In s u m m a r y , native title h a s b e e n r e c o g n i s e d a s a c o m m o n law right in A u s t r a l i a . H o w e v e r , in recognising native title, the Court h a s d r a w n a n artificial distinction between questions of land rights a n d questions of sovereignty. Despite this distinction a n d the o v e r w h e l m i n g trend to restrict the rights and interests that flow from native title, there are two a s p e c t s of native title, a s it exists today, that provide intriguing insights into the operation of a n d p r o s p e c t s for self-government in Australia.  16  Canadian jurisprudence has not drawn such a stark division between questions of land rights and questions of sovereignty. In Delgamuukw, a decision that ultimately played a similar role in Canadian jurisprudence as Mabo (No. 2) by recognising Aboriginal title. In Delgamuukw, the Gitksan and Wet'suwet'en claimed "ownership and jurisdiction". See Delgamuukw v British Columbia [1997] S.C.R. 1010 (Opening Statement of the plaintiff at 21). See also Delgamuukw v British Columbia [1997] S.C.R. 1010 (Statement of Claim at para. 56, 56(A) and 57). In both the trial court and Court of Appeals' decisions, the claim for jurisdiction was dismissed. Although the Court of Appeal decision was appealed to the Supreme Court of Canada, only issues relating to Aboriginal title were argued and the Supreme Court of Canada was not directly confronted with issues of jurisdiction. However, despite the construction of the question before the Supreme Court, that Court's judgment addressed primarily the title issues. See discussion above at page 77.  96  COMMUNAL NATIVE TITLE AND S E L F - G O V E R N M E N T  In Mabo (No. 2), the H i g h Court r e c o g n i s e d that native title is a c o m m u n a l r i g h t .  17  S e c t i o n 2 2 3 of the Native Title Act 1993 (Cth), consistent with the c o m m o n law position, also defines native title a s a c o m m u n a l right.  18  T h e c o m m o n law recognition of native title a s a c o m m u n a l right requires the e x i s t e n c e of a c o m m u n a l d e c i s i o n - m a k i n g authority and d e c i s i o n - m a k i n g structure to e x e r c i s e the c o m m u n a l r i g h t .  19  It implies recognition of d e c i s i o n - m a k i n g p o w e r and  d e c i s i o n - m a k i n g authority by Aboriginal c o m m u n i t i e s . A s a result, recognition of native title a s a c o m m u n a l right includes an implied recognition that the Aboriginal c o m m u n i t y must h a v e at least a d e g r e e of self-government n e c e s s a r y to allocate the u s e of land to w h i c h a title extends. Therefore, a s a c o m m u n a l title:  1 7  Interestingly, their communal title was recognised despite their traditional laws and customs containing no concept of community title. Instead, title was held by individuals or family groups; per Brennan J in Mabo (No. 2) at 22. Kent McNeil interprets the Meriam peoples' communal title as originating and deriving its content from their exclusive occupation as a community of the Island of Mer rather than from their traditional laws or customs, per Kent McNeil, Emerging Justice: Essays on Indigenous Rights in Australia and Canada (Saskatoon: Houghton Boston Printers, 2001) at 422. See a Toohey J in Mabo v State of Queensland (1992) 175 CLR 1 C'Mabo (No. 2j") at 188-92. However, this does not restric the application of Meriam laws and customs in determining the existence and content of individual and group rights within the Meriam community. Therefore, despite the construction of a communal nature of title for the Meriam people, it is clear that the High Court in Mabo (No. 2) recognised native title as a communal right. See Brennan J in Mabo (No. 2) at 61-63.  1 8  Section 223 (1) states "The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters.  1 9  The communal nature "presupposes the existence of community authority that must be governmental in nature", per Kent McNeil, "Self-Government and the Inalienability of Aboriginal Title" (2002) 47 McGill Law Journal 473.  97  ... d e c i s i o n making authority o v e r A b o r i g i n a l or native title lands rests with the c o m m u n i t y involved. Aboriginal title therefore has g o v e r n m e n t a l attributes that m a k e it m u c h more than a property r i g h t .  20  T h e relationship between c o m m u n a l title a n d self-government is most clearly e x p r e s s e d in C a n a d i a n jurisprudence w h e r e the c o m m u n a l nature of Aboriginal title in C a n a d a , the equivalent of native title in A u s t r a l i a , h a s also b e e n r e c o g n i s e d . In Delgamuukw,  21  the S u p r e m e Court of C a n a d a defined aboriginal title a s a:  ... collective right to land held by all m e m b e r s of a n aboriginal nation. D e c i s i o n s with respect to that land are also m a d e by that community. T h i s is a n o t h e r feature of aboriginal title w h i c h is sui generis a n d distinguishes it from normal property rights. [ E m p h a s i s a d d e d ] .  22  T h e S u p r e m e Court of C a n a d a r e c o g n i s e d that a s a c o m m u n a l right, there is a n implied recognition that the aboriginal c o m m u n i t y must have at least a d e g r e e of d e c i s i o n - m a k i n g power or self-government n e c e s s a r y to allocate the use of land to w h i c h title extends. E x p a n d i n g this point, J u s t i c e W i l l i a m s o n of the S u p r e m e Court of British C o l u m b i a in Campbell  2  v British Columbia,  23  r e c o g n i s e d that:  °/Wdat para 42.  21  Delgamuukw v British Columbia (1997) 3 SCR 1010.  22  Ibid at 1082-1083. Aboriginal title "encompasses within it a right to choose to what ends a piece of land can be put" at 1113. See Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333 at 366 - 367.  23  Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333.  98  O n the face of it, it s e e m s a right to aboriginal title, a c o m m u n a l right w h i c h includes o c c u p a t i o n and use, must of necessity include the right of the c o m m u n a l o w n e r s h i p to m a k e d e c i s i o n s about that o c c u p a t i o n and use, matters c o m m o n l y d e s c r i b e d a s governmental. T h i s s e e m s essential w h e n the o w n e r s h i p is c o m m u n a l . [ E m p h a s i s a d d e d ] .  24  C a n a d i a n courts have r e c o g n i s e d that the right of a c o m m u n i t y to m a k e d e c i s i o n s regarding the use of the land is a fundamental a s p e c t of aboriginal title. T h e right of a c o m m u n i t y to m a k e d e c i s i o n s regarding the use of the land includes the right to h a v e a political structure for making those d e c i s i o n s . Therefore, in C a n a d a a n d , I suggest, in c o m m o n s e n s e , the right of a n aboriginal c o m m u n i t y to d e c i d e the u s e for the land e n c o m p a s s e d by aboriginal title is a n e x e r c i s e of the right of selfgovernment.  L i k e C a n a d i a n aboriginal title, the c o m m u n a l nature of native title in Australia must entail a continuing right of self-government. A s M c N e i l notes:,  ... given the nature of the right to full beneficial o w n e r s h i p of the land, a determination of p o s s e s s o r y native title in Australia, like its counterparts in  * Ibid ai 362.  99  North A m e r i c a , must n e c e s s a r i l y include the rights to m a n a g e the land a n d m a k e d e c i s i o n s about the u s e s of the land subject to p o s s e s s o r y native title.  25  T h e logical implication that the c o m m u n a l nature of native title n e c e s s a r i l y entails d e c i s i o n - m a k i n g powers to s o m e d e g r e e has received recognition a s a n e l e m e n t of native title. T h e F e d e r a l Court in both Miriuwung Gajerrong d e c i s i o n s ,  26  at first  i n s t a n c e a n d in the Full Court, confirmed that native title confers the right to m a n a g e a n d determine the u s e s of the land according to A b o r i g i n a l laws a n d c u s t o m s . L i k e w i s e , the c o n s e n t determination affirmed in Hayes v Northern  Territory  27  r e c o g n i s e d the rights of c o m m o n law native title holders to "make d e c i s i o n s about the use of the land and w a t e r s " .  28  In affirming this c o n s e n t determination, O l n e y J of  the F e d e r a l Court, stated that this right to m a k e d e c i s i o n s :  ... w o u l d be a normal adjunct of the recognition of native title rights a n d interests in l a n d .  29  25  Western Australia v Ward and Ors (2000) 170 ALR 159 at 212-213 and Ward v Western Australia (1998) 159 ALR 483 at 645.  26  Western Australia v Ward and Ors (2000) 170 ALR 159 at 32 and Ward and Ors v State of Western Australia and Ors (1998) 159 ALR 483 at 639-40; The High Court decision, Western Australia v Ward (2002) 191 ALR 1 did not address this issue.  2 7  [1999] FCA 1248 (Unreported, 9 September 1999). The court order required parties to confer in order to agree on the final form of the determination. See also Hayes v Northern Territory [2000] FCA 671 (Unreported, 23 May 2000) for the final determination, especially subsections 3(d) and 3(f).  2 8  Lisa Strelein.'The Vagaries of Native Title: Partial Recognition of Aboriginal Law in the Alice Springs Native Title Case: Hayes v Northern Territory* (2000) 4:26 Indigenous Law Bulletin 13.  2 9  Above n 27 at para 51.  100  M o r e recently, the native title determination in Rubibi Community Australia  30  w a s c o n s i s t e n t with the d e c i s i o n in Hayes  v Northern  v Western Territory  and  included "the right to m a k e d e c i s i o n s about the u s e a n d enjoyment of the a r e a " .  31  T h e consistent recognition that native title rights a n d interests include a right to m a n a g e a n d m a k e d e c i s i o n s about the land indicates that this position is not contentious in Australian native title law. Therefore, the distinction b e t w e e n land rights a n d sovereignty that the High Court took in Mabo (No. 2) is not reflected in current native title determinations. T h e s e determinations r e c o g n i s e d e c i s i o n - m a k i n g p o w e r s that are g o v e r n m e n t a l in nature a s a n a s p e c t of native title.  A further illustration of the g o v e r n m e n t a l nature of native title is r e v e a l e d w h e n e x a m i n i n g the classification of native title a s "proprietary". J u s t i c e B r e n n a n held that native title is a "proprietary c o m m u n i t y title". D e a n e a n d G a u d r o n J J , in a joint 32  judgment, supported B r e n n a n J's c o n c l u s i o n that native title w a s a proprietary interest by determining that the extinguishment of native title w o u l d a m o u n t to a n acquisition of property within section 51 (xxxi) of the Commonwealth  Constitution.  33  Therefore, although the Court divided on this i s s u e in Mabo (No. 2), the prevalent view is that native title is a proprietary interest. A s R i c h a r d Bartlett w r i t e s :  30  31  3 2  34  Rubibi Community v Western Australia [2001 ] 112 FCR 409. / b / d at 452. Above n 1 at 52 per Brennan J.  33  Ibid at 111 per Deane and Gaudron JJ.  3 4  Kent McNeil, Emerging Justice: Essays on Indigenous Rights in Canada and Australia (Saskatoon: Houghton Boston Printers, 2001) at 416.  101  In a c c o r d a n c e with g e n e r a l principles, the High Court has r e c o g n i s e d the proprietary nature of native title ... Native title is afforded the d e g r e e of protection a n d enforceability 'against the w h o l e world' due a proprietary interest.  35  Whilst c o m m u n a l title o b v i o u s l y h a s a proprietary aspect, it also has social, cultural a n d political d i m e n s i o n s that are b e y o n d the s c o p e of standard c o n c e p t i o n s of private property. T h i s is illustrated by the restricted options of alienation a v a i l a b l e to native title holders. G e n e r a l l y , private property is alienable to i n d i v i d u a l s . In 36  contrast, native title c a n only be surrendered to or acquired by the C r o w n or other Aboriginal c o m m u n i t i e s .  37  Native title is only alienable to the C r o w n b e c a u s e it is  o n l y alienable to a n entity that has g o v e r n m e n t a l capacity. Private p e r s o n s w h o h a v e no authority to g o v e r n cannot acguire native title for t h e m s e l v e s , b e c a u s e they do not h a v e a g o v e r n m e n t a l c a p a c i t y .  38  T h e restrictions on alienation indicate that  native title is more than a property right. T h i s is b e c a u s e of its political a n d governmental aspects.  3 5  Richard Bartlett, Native Title in Australia (Butterworths: Sydney, 2000) at 197. This is the conclusion of the section, "The Proprietary Nature of Native Title', beginning at 184.  3 6  Restrictions may apply and certain individuals may have priority (in the case of options), however, it is generally the case  3 7  Above n 1 at 59 - 60, 70 per Brennan J, at 88,110 per Deane and Gaudron JJ, at 194 per Toohey J.  3 8  This is also consistent with a foundational common law principle, that only the Crown can acquire new title. See Chapman J in R v Symonds (1847) [1840 - 1932]' NZPCC 387 at 389 - 390.  that private property may be alienated to individuals, corporations or in some cases, the Crown.  102 It is important to note the limitations of the argument that c o m m u n a l title i n v o l v e s the recognition of d e c i s i o n - m a k i n g p o w e r s a n d to e m p h a s i s e the relationship b e t w e e n this recognition of self-government a s a n a s p e c t of native title a n d the inherent right of self-government. T a k e n to its logical c o n c l u s i o n , c o m m u n a l native title infers d e c i s i o n - m a k i n g p o w e r to m a k e d e c i s i o n s relating to land. T h e s e are the d e c i s i o n m a k i n g p o w e r s that have b e e n r e c o g n i s e d by A u s t r a l i a n courts, w h e r e recognition h a s b e e n limited to d e c i s i o n s that are directly related to land or r e s o u r c e s . T h i s i n c l u d e s d e c i s i o n s s u c h a s how to m a n a g e , use and enjoy the land. It is difficult to logically imply that a c o m m u n a l land title requires d e c i s i o n - m a k i n g power for d e c i s i o n s other than land, for e x a m p l e , for education or criminal justice. T h i s is b e c a u s e native title is a right to land. Despite the g o v e r n m e n t a l a s p e c t s of this proprietary right, native title is not a right to autonomy or to g o v e r n a c c o r d i n g to A b o r i g i n a l law. T h i s limitation could restrict the m a n n e r in w h i c h self-government is r e c o g n i s e d a s a n a s p e c t of native title to d e c i s i o n s relating to land a n d r e s o u r c e s .  But, this limitation is not fatal to the recognition of a n inherent right of selfg o v e r n m e n t . C o m m o n law self-government is a separate, but related, legal doctrine, e m a n a t i n g from British colonial law. T h e d e c i s i o n - m a k i n g r e c o g n i s e d a s a n a s p e c t of native title, d e c i s i o n - m a k i n g towards land, is properly c h a r a c t e r i s e d a s a n e x e r c i s e of the inherent right of self-government.  I n o w c o n s i d e r a s e c o n d argument that also disputes the distinction d r a w n b e t w e e n land rights a n d sovereignty.  103  AN ABORIGINAL RIGHT TO LAND AND SELF-GOVERNMENT: BEYOND SOCIAL DARWINISM  L a n d is a foundational c o n c e p t in A u s t r a l i a n law. L a n d is also central in A b o r i g i n a l law. H o w e v e r , t h e s e are two strikingly different c o n c e p t i o n s of land. T h i s h a s often c a u s e d confusion and a s a result, Aboriginal rights and interests have often b e e n extinguished, d i m i n i s h e d or simply not r e c o g n i s e d .  A u s t r a l i a n relationships to land are predominantly constructed by notions of property and ownership.  Proprietary interests are afforded the highest protection under the law. A characterisation a s property indicates that property r e m e d i e s  enforceable  against the w h o l e world will attach to the-interest. S u c h r e m e d i e s e n s u r e the integrity of the interest.  39  In the High Court's d e c i s i o n in Miriuwung Gajerrong,  Justice C a l l i n a n e x p l a i n e d the  importance of property in describing the British arriving with:  3 9  Above n 35 at 184.  104  ... their c o m m o n a n d statutory law w h i c h had long included a doctrine of a d v e r s e p o s s e s s i o n a n d settled notions about the u s e a n d o c c u p a t i o n of land. T h e s e w e r e c l o s e l y c o n n e c t e d ideas: land w a s to be u s e d a n d enjoyed, a n d t h o s e w h o p o s s e s s e d , u s e d a n d enjoyed the land s h o u l d o w n it, albeit, at first, transiently.  J u s t i c e C a l l i n a n notes the important of u s e a n d o c c u p a t i o n in determining o w n e r s h i p of land. T h e most striking e x a m p l e of the p r e - e m i n e n c e of u s e and o c c u p a t i o n in A u s t r a l i a n law is J u s t i c e B l a c k b u r n ' s d e c i s i o n in Milirrpum v Nabalco  40  in his  articulation of what constitutes'property':  I think that property, in its m a n y forms, generally implies the right to use or enjoy, the right to e x c l u d e others, a n d the right to a l i e n a t e .  41  H o w e v e r , relationships to land are not just defined by property use a n d o w n e r s h i p . R e l a t i o n s h i p s to land m a y also be emotional. T h i s emotional tie m a y be a familial c o n n e c t i o n , s u c h a s third generation farmers, or feelings of joy, fear or recognition of the sublime. A l t h o u g h relationships to land in dominant A u s t r a l i a n society tend to be characterised by a relationship of u s e a n d ownership, they also often involve emotional interactions. H o w e v e r , despite this emotional c o n n e c t i o n to the land, the  "0(1971) 1 7 F L R 1 4 1 . 4 1  /t>/'dat 272.  105  dominant perception of land in A u s t r a l i a n society is starkly different to Aboriginal relationships to land.  L a n d is central to traditional Aboriginal c o s m o l o g y a n d s o c i a l organization. T h e link between people, plant, a n i m a l , a n c e s t r a l beings, morality a n d law m a k e o n e ' s country a n essential defining force in h u m a n r e l a t i o n s .  42  Galarrwuy Yunupingu  e x p l a i n s the importance of land to Aboriginal people:  ... land is all life . . . w e are part of the land and the land is part of us. It cannot be o n e or the other. W e cannot be s e p a r a t e d by anything or a n y b o d y .  43  T h e inseparable nature of person a n d land e x p r e s s e d by G a l a r r w u y Y u n u p i n g u is e c h o e d by S i l a s Roberts:  It is true that the people w h o are belonging to a particular area are really part of that a r e a a n d if that a r e a is destroyed they are a l s o d e s t r o y e d .  It w a s in the D r e a m t i m e that this c o m p l e x relationship w a s e s t a b l i s h e d .  45  44  The  D r e a m t i m e is a n indefinable past era w h e n Australia w a s inhabited only by 4 2  Deborah Rose, Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness (Canberra: Australian Heritage Commission, 1996) in David Hollingsworth, Race and Racism in Australia (Katoomba: Social Sciences Press, 1998) at 174.  4 3  Galarrwuy Yunupingu, Our Land is Our Life: Land Rights- Past, Present and Future (St Lucia: University of Queensland Press, 1997) at 2.  4 4  Silas Roberts, former Chair of the Northern Land Council, from Fox R.W., "Ranger Uranium Environmental Inquiry" 2nd Report (Canberra: Australian Government Publishing Service, 1977) quoted in Paul Kaffman, Wik, Mining and Aborigines (St. Leonards: Allen & Unwin, St. Leonards).  106 djugudani  and malbu.  46  T h e s e spirits r o a m e d the land, creating landmarks, s u c h a s  rivers, hills and rock formations. At various s t a g e s the spirits left the first Aboriginal people on the land, and left the l a n g u a g e and law in the land. T h e ancestral b e i n g s left a master d e s i g n for life. W h e n the D r e a m t i m e e n d e d , the D r e a m i n g c r e a t u r e s m e t a m o r p h o s e d into natural features, s u c h a s a mountain or a star. Their life e s s e n c e s t a y s forever, so the D r e a m t i m e continues. Aboriginal people refer to their heritage from the D r e a m t i m e a s the L a w . This L a w is evident in natural features in the land, a constant reminder of the need to uphold the L a w . A s G a g a d j u Elder, Bill Neidjie s a i d :  O u r story is in the land .... it is written in those s a c r e d p l a c e s . M y children will look after those p l a c e s , that's the law.  D r e a m i n g place .... you can't c h a n g e it, no matter who y o u are. No matter y o u rich man, no matter y o u king. Y o u can't c h a n g e i t .  47  4 5  For a more detailed explanation of the Dreamtime, see Robert Tonkinson, The Mardudjara Aborigines: Living the Dream in Australia's Desert (New York: Holt, Rinehart and Winston, 1978); Ronald M. and Catherine H. Berndt, The World of the First Australians: Aboriginal Traditional Life: Past and Present, 5th ed. (Canberra: Aboriginal Studies Press, 1999).  4 6  These are Mardudjara words for ancestral beings and malevolent spirits respectively.  4 7  Bill Neidjie, Stephen Davis, Allan Fox, Kakadu Man ... Bill Neidjie (Sydney: Mybrood, 1985) at 47 - 48. See also Bill Neidjie, Story about Feeling (Broome: Magabala Books, 1989). T h e a r e in the original.  107 A s a result of the D r e a m i n g , there is a c o m p l e x relationship between land, law, l a n g u a g e and identity. T h i s complexity is indicated by the following quotes:  C u s t o m a r y law is what I a m , the e s s e n c e of a n Aboriginal p e r s o n is customary l a w .  4 8  It is my father's land, my grandfather's land, m y grandmother's land. I a m related to it, it give me m y identity. If I don't fight for it, then I will be m o v e d out of it and [it] will be the loss of my identity.  49  T h e land is not merely a s y m b o l of the political survival and identity of Indigenous peoples, it is central to the worldview, the spirit a n d the history of all Indigenous peoples in A u s t r a l i a . T h e identities, l a n g u a g e and relationships of Indigenous p e o p l e s all c o m e from the land. [ E m p h a s i s a d d e d ] .  50  In the final quote, L i s a Strelein m a k e s reference to indigenous identities, l a n g u a g e a n d relationships that "all c o m e from the land". T h i s is a n important concept that is central to Aboriginal c o n c e p t i o n s of land. T h i s c o n c e p t i o n of land is unparalleled in  4 8  Rosalie Monks speaking on Damien Carrick, "Customary Law and Anglo-Australian Law - Can They Mix?" ABC Radio (29 July 2003) <http://www.abc.net.aU/rn/talks/8:30/lawrpt/stories/s912416.htm>.  4 9  Father Dave Passi, plaintiff in the Mabo cases in Trevor Graham (Director), Land Bilong Islanders (Yarra Bank Films, 1990).  5 0  Lisa Strelein, "Aboriginal Land Rights in Australia" (Native Title Research Unit at Australian Institute of Aboriginal and Torres Strait Islander Studies, 1999) [unpublished] at <http://www.firstpeoples.org/land_rights/australia/land_rights_in_australia.htm>.  108  n o n - i n d i g e n o u s Australia. T h i s is often not understood today, a s it w a s not understood at the time of the colonial frontier.  T h e relationship of Indigenous p e o p l e s to the land is that of a people, in this s e n s e it is a collective identification a n d it is a permanent a n d inalienable identification. T h e spiritual and collective d i m e n s i o n s of the relationship w e r e in direct contrast to the worldview of the colonists. T h e c o l o n i s e r s related to the land on a n individual b a s i s a n d o n a c o m m o d i t y b a s i s . T h e y understood that the lands w e r e or would b e c o m e v a l u a b l e to t h e m a n d w e r e unable or unwilling to understand a n d respect the relationship that Indigenous p e o p l e s held with t h o s e l a n d s .  51  It is interesting to c o n s i d e r the interaction b e t w e e n colonial a n d Aboriginal c o n c e p t i o n s of property with the advent of s o c i a l D a r w i n i s m . S o c i a l D a r w i n i s m d e v e l o p e d by applying scientific Darwinian theories of evolution to h u m a n societies. Herbert S p e n c e r , a 19th century English philosopher, popularised C h a r l e s Darwin's biological work, "Origin of the S p e c i e s " ( I 8 6 0 )  5 2  a s "the survival of the fittest" a n d , in  a v u l g a r i s e d form, extended this b e y o n d s p e c i e s a n d applied the theory to races. T h i s created a pervasive c o n s c i o u s n e s s that certain r a c e s w e r e superior to other races.  51  53  G i v e n that social D a r w i n i s m e m a n a t e d from E u r o p e , it is hardly surprising  Ibid.  5 2  Charles Darwin, On the Origin of Species by Means of Natural Selection, or, The Preservation of Favoured Races in the Struggle for Life (New York: D. Appleton, 1860).  5 3  See Re Southern Rhodesia [1919] AC 211.  109 that the r a c e s p l a c e d at the "developed" a n d powerful e n d of the s c a l e , w e r e E u r o p e a n nations. T h e r a c e s p l a c e d at the lower e n d of this s c a l e of civilization w e r e indigenous tribal p e o p l e s . Essentially, social D a r w i n i s m posited that the s c a l e of civilization is a n evolutionary p r o c e s s a n d that those r a c e s at the lower e n d of the s c a l e merely n e e d e d to "evolve" a n d progress in a n evolutionary p r o c e s s to the top e n d of the s c a l e . T h i s theory has both directly a n d indirectly h a s driven colonial policy towards i n d i g e n o u s people throughout the world for m a n y years. A l t h o u g h the support of social D a r w i n i s m has d e c l i n e d , it still underpins n u m e r o u s judicial d e c i s i o n s a n d provides a mindset difficult to o v e r c o m e in order to r e c o g n i s e that indigenous p e o p l e s ' culture a n d legal s y s t e m s are equally valid a n d important.  A n interesting a s p e c t of social D a r w i n i s m is that the r a c e s that w e r e "civilized" o c c u p i e d the land in a m a n n e r fundamentally different to those p l a c e d at the lower e n d of the s c a l e . T h e o c c u p a t i o n s that s o c i a l D a r w i n i s m privileged w e r e t h o s e that involved d e v e l o p m e n t of the land. This m a y h a v e b e e n farming, or more recently mining, but fundamentally involved building. W h e t h e r this involved building h o u s e s , court buildings or roads, it required s o m e form of altering the land. T h e s e alterations to the land indicated the superiority of m a n o v e r both beast a n d nature. Ironically, the fact that m a n k i n d has b e e n so "successful" in altering the land, is n o w r e c o g n i s e d a s the c a u s e of major environmental a n d health i s s u e s . T h e pollution of water sources, the extinction of t h o u s a n d s of s p e c i e s with t h o u s a n d s more at risk, the d a m a g e to the o z o n e layer, m a s s deforestation, salinity i s s u e s , global w a r m i n g  110 a n d the d a m a g e to c o m p l e x reef s y s t e m s are directly c a u s e d by the alteration of the land that has o c c u r r e d so rapidly s i n c e the Industrial R e v o l u t i o n .  In a n y event, for the p u r p o s e s of s o c i a l D a r w i n i s m , o c c u p a t i o n that involved p h y s i c a l alteration of the land w a s privileged. T h i s partially explains the p l a c e m e n t of indigenous p e o p l e s at the "uncivilized" end of the s c a l e . A l t h o u g h indigenous u s e s of land vary, Aboriginal p e o p l e s in Australia were predominantly, but not e x c l u s i v e l y , hunter-gatherer societies. T h i s n o m a d i c lifestyle required and nurtured a t r e m e n d o u s body of k n o w l e d g e about the land and its resources. D e v e l o p m e n t o c c u r r e d in the c o m p l e x spiritual relationship b e t w e e n land, language, law, time, animals a n d people.  54  Therefore, o c c u p a t i o n of the land w a s not n e c e s s a r i l y a c c o m p a n i e d by a  s e d e n t a r y lifestyle or physical development. O c c u p a t i o n of the land involved a c o m p l e x spiritual relationship. A s this m a n n e r of o c c u p a t i o n did not visibly reflect E u r o p e a n notions of o c c u p a t i o n , s o c i a l Darwinian theorists classified Aboriginal people in A u s t r a l i a a s uncivilized.  J u s t i c e B l a c k b u r n ' s d e c i s i o n in Milirrpum v Nabalco must be a n a l y s e d k e e p i n g in mind this D a r w i n i a n c o n c e p t i o n of property and hierarchy. T h i s judgment is a n e x a m p l e of the failure to c o m p r e h e n d Aboriginal relationships to land. B l a c k b u r n J w a s faced with the question of w h e t h e r the relationship to land in Y o l g n u society w a s proprietary. B l a c k b u r n J wrote that:  5 4  Robert Tonkinson, The Mardudjara Aborigines: Living the Dream in Australia's Desert (New York: Holt, Rinehart and Winston, 1978). In particular, Chapter 1, "The Spiritual Imperative" at 14.  111  ... the problem at present before the C o u r t is to c h a r a c t e r i z e what the Aboriginal relationship is a s manifested by what they s a y a n d d o to the land. [Emphasis added].  55  J u s t i c e B l a c k b u r n a s s u m e d that Y o l g n u relationships to land are determined by what they "do to the land". T h i s is also evident from his indicia of property, quoted a b o v e , w h i c h includes the "right to use a n d enjoy". Not surprisingly, B l a c k b u r n J failed to c o m p r e h e n d Y o l g n u relationships to land a n d ultimately relied o n the familiar: A u s t r a l i a n legal constructions of property a n d o w n e r s h i p . B l a c k b u r n J held:  In my opinion, therefore, there is so little r e s e m b l a n c e b e t w e e n property, a s our law, or what I know of a n y other law, u n d e r s t a n d s that term, a n d the c l a i m s of the plaintiffs for their clans, that I must hold that t h e s e c l a i m s are not in the nature of proprietary interests.  T h e requirement that land o w n e r s h i p must be in a c c o r d a n c e with c o m m o n law u n d e r s t a n d i n g s of property is g r o s s l y ethnocentric. B l a c k b u r n J c o m p l e t e l y failed to c o m p r e h e n d Aboriginal relationships to land a n d i m p o s e d o n e form of property o w n e r s h i p o n the Y o l g n u , a s s u m i n g this form to be universal. H o w e v e r , forms of property o w n e r s h i p are not universal. Further, although referring to this exact  6 5  Above n 40 at 268-269.  112  passage, Blackburn J blatantly ignored the Privy Council's warning in Amodu Secretary,  Southern  Nigeria {"Amodu Tijanf),  56  Tijani v  where Viscount Haldane wrote:  ... in interpreting the native title to land, not only in Southern Nigeria but in other parts of the British Empire, much caution in essential. There is a tendency, operating at times unconsciously, to redress that title conceptually in terms what are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. [Emphasis added].  57  The decision of Blackburn J in  Milirrpum v Nabalco  is a striking example of the  difference between Australian conceptions of land and Aboriginal conceptions of land. The mistake Blackburn J made, by imposing common law indicia of what constitutes property, to Aboriginal conceptions of land, must not be repeated. The warning of Viscount Haldane must be heeded and social Darwinian constructions of race, hierarchy and land ownership must not be present in determining common law native title. In constructing native title in a manner that is respectful of Aboriginal relationships to land, one may see the utility of the concept of the inherent right of self-government.  6 6  [1921] 2 AC 399.  57  Ibid at 402 - 403. Blackburn J quoted Viscount Haldane in Milirrpum v Nabalco above n 40 at 284 - 285.  113  Native title is founded o n the c o m m o n law recognition of the continued Aboriginal right to land under Aboriginal law. It r e c o g n i s e s Aboriginal relationships to land. T h i s c a n be s e e n in both the c o m m o n law a n d statutory definitions of native title. T h e definition provided by the High C o u r t in its opening s u m m a r y in Mabo (No. 2) defined native title a s reflecting the entitlement of Aboriginal people to their traditional lands in a c c o r d a n c e with Aboriginal law. S e c t i o n 2 2 3 of the Native Title Act 1993 (Cth) defines native title a s a n Aboriginal right "in relation to land or waters". Both t h e s e definitions define native title a s a n Aboriginal relationship to land. T h e centrality of this relationship to land is also evident in the use of the term "connection" in t h e s e definitions.  58  It is clear that recognition of Aboriginal relationships to land forms part  of c o m m o n law native title.  It is important to e m p h a s i s e that t h e s e are Aboriginal relationships to land that must be c o m p r e h e n d e d in a m a n n e r u n i m p e d e d by A u s t r a l i a n constructs of what relationships to land s h o u l d be. A n y imposition of B l a c k b u r n J's indicia of property or a n y other similar imposition harkens back to social D a r w i n i s m a n d fails to c o m p r e h e n d the centrality and importance of indigenous perceptions of their relationship to land. T h i s is required not only by c o n t e m p o r a r y rights standards, w h i c h resolutely reject social D a r w i n i a n theories, but also by the nature of native title a s a n inherent right. A n inherent right s t e m s from Aboriginal law rather than from P a r l i a m e n t or the C r o w n . Therefore, native title requires interpretation in a c c o r d a n c e  6 8  Section 223(1 )(b) provides, "the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters".  114 with A b o r i g i n a l relationships to land a s distinct from a n i m p o s e d interpretation relying o n A u s t r a l i a n c o m m o n law norms of property, use a n d o w n e r s h i p of l a n d .  Therefore, g i v e n the nature of Aboriginal relationships to land, a relationship that is c o m p l e x a n d n e c e s s a r i l y intertwined with law, l a n g u a g e a n d identity, recognition of A b o r i g i n a l relationships to land a s part of native title n e c e s s a r i l y involves a recognition of Aboriginal law, l a n g u a g e a n d identity. T h i s is recognition of Aboriginal law, not just a s it relates to land, but Aboriginal law a s a holistic legal s y s t e m . Therefore, not only is Aboriginal law a s it relates to land r e c o g n i s e d a n d affirmed by the A u s t r a l i a n c o m m o n law in its recognition of native title, but Aboriginal law is broadly r e c o g n i s e d a n d affirmed by the c o m m o n law. T h i s h a s far greater ramifications for inherent self-government a s it is not limited to d e c i s i o n - m a k i n g p o w e r s relating to land a n d r e s o u r c e s .  CONCLUSION  T h e r e are two w a y s in w h i c h native title a n d self-government are related c o n c e p t s . T h e s e conflict with the formal manufactured distinction the High Court explicitly drew b e t w e e n questions of land rights a n d questions of sovereignty. T h e right of selfgovernment, in relation to d e c i s i o n s regarding land use, c a n be strongly e s t a b l i s h e d a s a n element of native title. In fact, this limited form of self-government h a s already b e e n r e c o g n i s e d in Australia. Further, the recognition of Aboriginal relationships to  115  land involves recognition of Aboriginal law, language and identity. By ensuring that Australian notions of property and land ownership are not imposed in determining Aboriginal relationships to land for the purposes of native title, the problems of social Darwinism are avoided and Viscount Haldane's warning in Amodu  Tijani is heeded.  It must be noted that both of these examples involved recognition of self-government occurring within the limits of native title. However, self-government is more than just an aspect of native title. The inherent right of self-government is a related, but separate right. Importantly, self-government, as shown by its existence a necessary aspect of native title, does not fracture the skeleton of the Australian legal system.  116  Chapter Five ABORIGINAL CUSTOMARY LAW  Despite the p e r v a s i v e myth that there is only o n e legal s y s t e m in Australia, s i n c e early colonial contact, there has long b e e n judicial recognition of the e x i s t e n c e of A b o r i g i n a l law. T h i s recognition is significant b e c a u s e it m e a n s that the A u s t r a l i a n 1  legal s y s t e m has a c c o m m o d a t e d the operation of a s e p a r a t e legal s y s t e m . That is, there is more than o n e c o m p l e t e legal s y s t e m operating within Australia: the A u s t r a l i a n legal s y s t e m and Aboriginal legal s y s t e m s . T h i s a m o u n t s to recognition that Australia is a legal plurality.  2  In addition to fundamentally challenging the fiction that Australia is not a legal plurality, but a monistic legal society, the judicial recognition of Aboriginal law includes recognition of Aboriginal d e c i s i o n - m a k i n g and Aboriginal law-making power. T h i s is the foundation of the c o m m o n law inherent right of self-government. Selfg o v e r n m e n t is the legal m e c h a n i s m by w h i c h the Australian legal s y s t e m r e c o g n i s e s the e x i s t e n c e and operation of Aboriginal legal s y s t e m s .  1  Although I refer to "Aboriginal law" in the singular, this is only for the ease of argument. I recognise that there are many Aboriginal legal systems and Aboriginal laws in Australia.  1 use the term "legal pluralism" and "legal plurality" to describe more than one legal system and the term "monism" to describe one legal system.  2  117  T h e myth that Australia is monistic society and that the Australian legal s y s t e m d o e s not r e c o g n i s e Aboriginal c u s t o m a r y law as an existing legal s y s t e m , is a result of both historical and contemporary legal doctrine.  T H E G R E A T AUSTRALIAN SILENCE  In 1765, B l a c k s t o n e explained that if land w a s u n o c c u p i e d or uninhabited and d i s c o v e r e d by E n g l i s h subjects, then "all the E n g l i s h laws ... are immediately there in force". H o w e v e r , if land is cultivated and has b e e n c o n q u e r e d or c e d e d , the K i n g 3  m a y alter the laws, but until this h a p p e n s the ancient laws exist u n l e s s they are "against the law of G o d , as in the c a s e of a n infidel country". T h e pivotal c o n c e p t is 4  that vacant land includes territory p o s s e s s e d by " s a v a g e tribes". Aboriginal p e o p l e 5  w e r e c o n s i d e r e d incapable of intelligent transactions with l a n d , s i n c e they did not 6  cultivate the land nor c o m p r e h e n d the "natural laws of G o d " . A s a c o n s e q u e n c e , Britain c o n s i d e r e d Aboriginal people in Australia as "savages". Therefore, neither A b o r i g i n a l o w n e r s h i p nor Aboriginal law w a s r e c o g n i s e d by Britain.  7  3  Sir William Blackstone, Commentaries on the Laws of England, 15 ed. vol. 1 (London, A. Strahan, 1809) at 107. Blackstone caveats that "this must be understood with very many and very great restrictions."  A  Ibid  6  Kenneth Maddock, Anthropology, Law and the Definition of Australian Aboriginal Rights to Land (Amsterdam: Nijmegen, 1980) at 7.  6  Ibid at 7.  7  It is important to recognise that Blackstone's academic writing has never reflected the reality of British colonial practice in North America, see Brian Slattery, Land Rights of Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of their Territories (Saskatoon: Saskatoon Native Law Centre, 1979) (D. Phil, University of Oxford).  th  aim.  118 T h e justification for the acquisition of Australia is p r e m i s e d upon the m i s c o n c e p t i o n that there w a s only one legal s y s t e m . A s a result, Australia w a s classified terra nullius, a land belonging to nobody. Australia w a s constructed a s a s p a c e w h e r e no law operated, effectively a legal v a c u u m . Aboriginal law w a s d e e m e d non-existent. A s a result of terra nullius, the doctrine of d i s c o v e r y and the failure to r e c o g n i s e A b o r i g i n a l law a s law, E n g l i s h c o m m o n law entered Australia without any i m p e d i m e n t s a n d British law w a s i m p o s e d on A b o r i g i n a l p e o p l e s .  A GRADUAL AWARENESS  A s the c o l o n i s e r s quickly c a m e to realise that there w e r e m a n y A b o r i g i n a l p e o p l e s and that Aboriginal people had laws and o w n e d the land, the presumption of terra nullius w a s c h a l l e n g e d . A t the s a m e time, Aboriginal p e o p l e w e r e d e c l a r e d British 8  s u b j e c t s . T h i s purportedly e x c l u d e d any formal recognition of Aboriginal l a w . 9  10  H o w e v e r , consistent with the coloniser's realisation of the fictitious foundation of terra nullius, there w e r e various forms of executive, legislative and judicial recognition of Aboriginal law.  8  Henry Reynolds, This Whispering In Our Hearts (St. Leonards: Allen & Unwin, 1998).  9  Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31 (1986) ("ALRC") in vol 1. at para 23. Two British government reports declared that Aboriginal people were British subjects and subject to British law in all circumstances. In 1837, the Select Committee of the House of Commons Report and Grey's Report, published in 1840. There were also "numerous statutes" which declared Aboriginal people to be British subjects and therefore amendable to British law; see ALRC.  10  Ibid in vol. 1 at para. 58. The ALRC Report stated that, "the customary laws and practices of Indigenous people were denied any formal recognition by the general law'.  119  Governor Macquarie & Governor Davey's Proclamations  In J u n e 1816, G o v e r n o r M a c q u a r i e i s s u e d a proclamation in a n attempt to "curb internecine Aboriginal conflict in a n d near S y d n e y " :  11  That the Practice, hitherto o b s e r v e d a m o n g the Native Tribes, of a s s e m b l i n g in large B o d i e s or Parties a r m e d , and of fighting and attacking e a c h other o n the P l e a of inflicting P u n i s h m e n t s on T r a n s g r e s s o r s of their own Customs Manners  and  at or near S y d n e y , and other principal T o w n s and S e t t l e m e n t s in the  C o l o n y , shall be henceforth wholly a b o l i s h e d , as a barbarous repugnant  Custom  to the British Laws, and strongly militating against the Civilization  of the Natives, w h i c h is an Object of the highest Importance to effect, if possible.  12  G o v e r n o r M a c q u a r i e ' s proclamation w a s in r e s p o n s e to v i o l e n c e authorised by Aboriginal law. A l t h o u g h the term "law" is not u s e d in the proclamation, there is recognition that t h e s e i n s t a n c e s are in a c c o r d a n c e with "custom". Further, this "custom" is inconsistent and "repugnant to" British law.  11  12  Henry Reynolds, Ibid.  Aboriginal Sovereignty: Reflections on Race, State and Nation  (Sydney: Allen & Unwin, 1996) a  120 It is important to c o n s i d e r the terms "custom" a n d " l a w " . T h e term "custom" m a y be 13  u s e d in two distinct s e n s e s . First, "custom" is often u s e d to distinguish b e t w e e n what constitutes law a n d what d o e s not. In this s e n s e , c u s t o m is merely a n a c c e p t e d w a y of acting. If s u c h a c u s t o m is b r e a c h e d , there is no legal r e c o u r s e .  T h e question  14  t h e n b e c o m e s w h e n d o e s c u s t o m constitute l a w ? T h e r e is no simple a n s w e r , although essentially, o v e r the p a s s a g e of time a n d c o n s i s t e n c y of application, c u s t o m s m a y crystallise into l a w .  1 5  S e c o n d l y , the term "custom" m a y be u s e d to refer to unwritten oral traditions that effectively operate in the s a m e m a n n e r a s law. In Australia, Aboriginal law is often referred to a s customary law, a reference to the oral nature of the legal s y s t e m . In this s e n s e , the term "custom" refers to the unwritten nature of the l a w rather than its status a s something l e s s e r than law. T h i s w a s r e c o g n i s e d by Lord D e n n i n g in R v Secretary  of State for Foreign and Commonwealth  Affairs w h e r e he stated that:  T h e s e c u s t o m a r y laws are not written d o w n . T h e y are h a n d e d d o w n b y tradition from o n e generation to another. Y e t b e y o n d doubt they are well e s t a b l i s h e d a n d have the force of law within the c o m m u n i t y .  16  1 3  See Karsten, P. Between Law and Custom: 'High'and 'Low' Legal Cultures in the Lands of the British Diaspora - The United States, Canada, Australia, and New Zealand, 1600 - 1900 (Cambridge: Cambridge University Press, 2002).  14  This distinction is most clearly seen in international law, where custom ripens to customary law, but still remains" subservient to treaties.  1 5  Gerald L. Gall, The Canadian Legal System, 4th ed. (Scarborough: Carswell, 1995) at 120.  1 6  [1982] 2 All ER 118 at 123.  121  In C a n a d a , "custom", in this s e c o n d s e n s e , has also b e e n r e c o g n i s e d a s law. F o r e x a m p l e , J u s t i c e Morrow refused to overrule a n Inuit c u s t o m a r y adoption, respecting its status a s " l a w " .  17  T h e use of the term "custom" in G o v e r n o r M a c q u a r i e ' s proclamation a c c o r d s with the s e c o n d s e n s e of c u s t o m , that it is merely law that h a s not b e e n written d o w n . Therefore, the recognition in G o v e r n o r M a c q u a r i e ' s proclamation that A b o r i g i n a l c u s t o m g o v e r n s Aboriginal behaviour is essentially recognition of Aboriginal law.  In T a s m a n i a in 1816, G o v e r n o r D a v e y also i s s u e d a "Proclamation to the A b o r i g i n e s " , that w a s posted o n trees, in an attempt to inform Aboriginal p e o p l e of A u s t r a l i a n law and its reciprocal obligations. T h i s proclamation, d i s p l a y e d below, d i a g r a m m a t i c a l l y represents the interaction of Aboriginal and British a n d the indiscriminate treatment of British law to both Aboriginal and British in the event of crime.  18  T h i s is to be read from bottom to top, and illustrates that v i o l e n c e b e t w e e n  Aboriginal p e o p l e a n d colonists will be p u n i s h e d regardless of whether a n A b o r i g i n a l p e r s o n or a colonist is the perpetrator. T h e third panel illustrates a truce a n d a n a c c e p t a n c e by Aboriginal people of British law a n d the final (top) panel d i s p l a y s e v e r y o n e living in harmony.  17  W.H. Morrow (ed.) Northern Justice: The Memoirs of Mr Justice William G. Morrow (Toronto: University of Toronto Press, 1995) at 150- 152.  18  The attribution to Governor Davey is incorrect. The Proclamation was issued during the administration of Governor Arthur and is likely to have been designed by George Frankland.  122  G o v e r n o r D a v e y ' s "Proclamation to the A b o r i g i n e s " (1816).  123  T h i s proclamation w a s effectively a political c a m p a i g n to inform and c o n v i n c e Aboriginal p e o p l e of the benefits a n d justice of being subject to British law. Importantly, the proclamation s h o w s that British law applies to d i s p u t e s between A b o r i g i n a l people and colonists but d o e s not declare that British law a p p l i e s to intraA b o r i g i n a l disputes. T h e "Proclamation to the A b o r i g i n e s " d o e s not operate o n the a s s u m p t i o n of terra nullius. Rather, it o p e r a t e s o n an a s s u m p t i o n of pre-existing Aboriginal law and legal plurality.  The Prerogative of Mercy  In the early colonial period, the G o v e r n m e n t w a s responsible for both the initiation a n d final review of criminal prosecutions. T h e Attorney G e n e r a l e x e r c i s e d the functions of a G r a n d Jury. Without the Attorney G e n e r a l ' s initiative a p e r s o n w o u l d not be sent for trial. T h e A L R C s u g g e s t e d that the Attorney G e n e r a l w o u l d rarely initiate a trial for intra-Aboriginal disputes. T h i s is also alluded to in R v  Ballard.  19  P u n i s h m e n t could also be mitigated by the G o v e r n o r ' s prerogative of mercy. Often, the G o v e r n o r would either remit or mitigate punishment in recognition of the fact that Aboriginal people neither understood nor felt a l l e g i a n c e to British law. A s a result  19  R v Ballard or Barrett (unreported, Supreme Court of New South Wales, Forbes CJ & Dowling J, 1829) in Dowling, proceedings of the Supreme Court, Vol. 22, Archives Office of New South Wales, 2/3205 at <http://www.law.mq.edu.aU/scnsw/Cases1829-30/html/r v ballard or barrett 1829.htm>.  124  m a n y capital s e n t e n c e s w e r e c o m m u t e d to transportation a n d Aboriginal prisoners w e r e sent for religious instruction in preparation for a n early r e l e a s e .  20  T h e 'guidelines' for applying the prerogative of mercy w e r e informed by the c o n n e c t i o n b e t w e e n the offence under British law a n d the offence under Aboriginal law. If a n Aboriginal p e r s o n w a s found guilty a n d s e n t e n c e d to death by the courts, but w a s not liable for death under Aboriginal law, the G o v e r n o r w o u l d , a s a g e n e r a l rule, e x e r c i s e the prerogative of m e r c y .  21  C o n s e q u e n t l y , only o n e Aboriginal p e r s o n ,  C h a r l e y , w a s e x e c u t e d between 1788 a n d 1855 w h o would not otherwise h a v e qualified for death under Aboriginal l a w .  22  T h e s e few e x a m p l e s indicate that the executive tacitly r e c o g n i s e d Aboriginal law in the early s t a g e s of colonisation. T h i s contrasts with the S u p r e m e C o u r t of N e w S o u t h W a l e s d e c i s i o n of R v Murrell  23  in 1834, which is often cited a s authority for  the proposition that the Australian legal s y s t e m never r e c o g n i s e d Aboriginal l a w .  2 4  T o the contrary, Australia w a s a plural legal society in the early d a y s of the c o l o n y a n d remains a plural legal society today. A trilogy of c a s e s d e c i d e d by the S u p r e m e Court of N e w S o u t h W a l e s , including the d e c i s i o n in R v Murrell, reveals a n active d e b a t e about the legality a n d justice of applying British law to Aboriginal p e o p l e . T h i s  2 0  ALRC above n 9 vol 1 at para 42.  21  Ibid. Governor Gipps declared to the Executive Council, that this was the test applied.  22  Ibid.  2 3  RvMurre//(1836)1 Legge72.  24  Wik Peoples v Queensland (1996) 141 ALR at 465.  125  d e b a t e indicates that undue weight has b e e n given to R v Murrell in its c o n t e m p o r a r y interpretation. This trilogy constitutes clear judicial recognition of Aboriginal law.  T H E E A R L Y N E W S O U T H W A L E S TRILOGY: T H E O T H E R SIDE O F THE FRONTIER  In the early 1 9  th  25  century, the S u p r e m e Court of N e w S o u t h W a l e s  2 6  d e c i d e d three  c a s e s that c o n s i d e r e d the relationship b e t w e e n Aboriginal law and British law: R v Ballard or Barrett ( 1 8 2 9 ) ,  (1841).  27  R v Jack Congo Murrell ( 1 8 3 4 )  2 8  and  R v Bonjon  29  2 5  This is a reference to Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (Melbourne, Penguin, 1982). Reynolds expressed his methodology in The Other Side of the Frontier as "a major challenge to conventional ideas about Aborigines and therefore to the way in which most Australians view important aspects of their past" at 2. Using this same approach, I revisit these cases and consider the colonial context. By giving equal weight and recognition to two legal systems, I hope to gain an understanding of the colonial mindset and insight into whether the early colonials perceived the colony as a plurality,  2 6  The Supreme Court of New South Wales was the judicial body governing the new British colony. It was the most important court during the colonial frontier in Australia. In 1787, Letters Patent created civil and criminal courts for the arrival of the First Fleet in Australia but a radical overhaul did not occur until 1824. Third Charter of Justice in 1824 established the Supreme Court of New South Wales, with both civil and criminal jurisdiction and granted the Chief Justice precedent over all British subjects, except the Governor or Acting Governor. The Supreme Court of New South Wales, in nearly all respects, has maintained continuity with the Court founded in 1824 under the Third Charter of Justice.  2 7  For a general analysis of these cases, see Bruce Kercher, "Recognition of Indigenous Legal Autonomy in Nineteenth Century New South Wales" 4(13) Indigenous Law Bulletin (1998) 7.  2 8  Above n 23. Although this case was reported, much of the information is from a series of archival material and newspaper articles compiled by the Post-Colonial Institute. As most of the information is not paginated, I will refer to the relevant source where possible.  29  R v Bonjon (unreported, Port Phillip district of the New South Wales, Willis J, 1841) at <http://www.law.mq.edu.au/scnsw/html/r v bonjon 1841 ,htm>. This case is also a compilation of archival material and newspaper reports, with the principal source of the judgment being the Port Phillip Patriot, 20 September 1841. This case is not paginated.  126  Rv  Ballard {1829)  But I know no principle of municipal inhabitants  or national law, which shall subject  of a newly found country, to the operation  finders, in matters of dispute, injury, or aggression  of the laws of the  between  In 1829, an Aboriginal man, Ballard, w a s a c c u s e d of the murder of a n man, B o r r o n d i r e .  31  the  themselves  30  Aboriginal  T h e issue w a s w h e t h e r the court had jurisdiction. R v Ballard  heard by F o r b e s C J at first instance and by F o r b e s C J and Dowling J o n a p p e a l .  was 3 2  T h i s c a s e a r o s e b e c a u s e the Attorney G e n e r a l applied to the C h i e f J u s t i c e for his opinion on w h e t h e r the Court had jurisdiction in this c a s e . A l t h o u g h the Attorney G e n e r a l w a s inclined to d i s c h a r g e the prisoner, he r e q u e s t e d the court's direction. W a s this merely a pragmatic inclination to not p r o s e c u t e ? O r d o e s it reflect a more c o m p l e x recognition of the e x i s t e n c e of Aboriginal law and the inherent injustice of 3 0  31  3 2  Above n 19 at 105-106, per Forbes CJ. Cf: Marshall C J in Worcester v Georgia (1832) 31 US (6 Pet) 515. There is discrepancy in the reporting of the names of the victim and the accused. The Sydney Gazette and the Australian reported that Borrondire, also known as Dirty Dick, was the person killed. The Australian reported the defendant as Ballard but the Gazette called him Barnett. Also, Dowling J , in his notebook, recorded that Dirty Dick was the accused and Ballard the victim. It seems Dowling J incorrectly reversed the names of the victim and the accused. It is important to recognise that the procedural nature of these cases is slightly hazy. I refer to the decisions as being at first instance and the final decision (or the decision on appeal) because to the best of my knowledge, this is the case. • However, this may not be precisely correct. For instance, in this case, Forbes CJ heard the case and his first instance decision may just be comments from the bench, which would explain him participating on the appeal. However, given there were few judges, it is likely that the colonial judiciary was much more flexible with these procedural requirements than would be acceptable today. More specifically, there was only a bench of two because Stephen J was ill. This case is reported in a series of newspaper articles. The first, on 21 April 1829 in the Sydney Gazette, reports the Chief Justice's response to the Attorney General's query of jurisdiction. The decision is handed down on 13 June 1829. In addition to the transcript, there are synopsis's reported on 16 June 1829 in the Australian and the Sydney Gazette.  1  2  7  applying (or misapplying) British law in this situation a n d subjecting A b o r i g i n a l people to two legal s y s t e m s in intra-Aboriginal d i s p u t e s ? A t a m i n i m u m , the Attorney G e n e r a l ' s inclination indicates that he had grave doubts a s to w h e t h e r there w a s jurisdiction in this c a s e . G i v e n the severity of the c h a r g e of murder, it is r e a s o n a b l e to infer that the Attorney G e n e r a l w a s of the opinion that British law did not apply to intra-Aboriginal disputes.  In the first instance, despite being hesitant to p r o n o u n c e on s u c h a n important matter whilst sitting alone, F o r b e s C J w a s confident that there w e r e situations both within a n d outside of British l a w .  33  H e w a s confident that there w a s at least o n e  situation w h e r e British law did not apply a n d he did not c o n s i d e r the e x i s t e n c e of situations outside the s c o p e of British law to be controversial. H e operated o n the a s s u m p t i o n that Aboriginal legal s y s t e m s existed a n d g o v e r n e d Aboriginal p e o p l e without interference in certain situations. H e operated o n the a s s u m p t i o n of legal plurality.  In his final written judgment, constituting the d e c i s i o n o n a p p e a l , F o r b e s C J stated that:  I believe it has b e e n the practice of the C o u r t s of this country, since the C o l o n y w a s settled, never to interfere with or enter into the quarrels that h a v e 3 3  Above n 19. In Sydney Gazette, 23 April 1829. Forbes CJ suggested a distinction between a dispute occurring within a tribe, decided by their own customs, and an Aboriginal person, living in town, who was attacked by another Aboriginal person. He suggested that in the second situation, the Aboriginal person had placed himself under the protection of municipal law. Therefore, British law would govern the second situation and not the first.  128 t a k e n place b e t w e e n or a m o n g s t the natives t h e m s e l v e s . T h i s I look to a s matter of history, for I believe no instance is to be found o n record in w h i c h the acts of c o n d u c t of the aborigines a m o n g s t t h e m s e l v e s h a v e b e e n submitted to the consideration of our C o u r t s of J u s t i c e . It has b e e n the policy of the J u d g e s , & I a s s u m e of the G o v e r n m e n t , in like m a n n e r with other C o l o n i e s , not to enter into or interfere with any c a u s e of dispute or quarrel b e t w e e n the aboriginal n a t i v e s .  34  T h i s clearly r e c o g n i s e s that, a s a matter of practice, British law w a s not a p p l i e d to intra-Aboriginal disputes. Did F o r b e s C J a l s o r e c o g n i s e this to be a matter of l a w ? H e held that it would be unjust a n d u n c o n s c i o n a b l e to hold a n Aboriginal p e r s o n r e s p o n s i b l e in E n g l i s h law for a n offence committed against o n e of his 'own t r i b e ' , a sentiment e c h o e d by Dowling J .  35  3 6  F o r b e s C J m a d e a n important distinction, noting that in all interactions b e t w e e n Aboriginal a n d British settlers, British law did a p p l y .  37  T h i s d o e s not a p p e a r to h a v e  b e e n controversial. Dowling J a l s o d r e w the distinction b e t w e e n intra-Aboriginal disputes and Aboriginal a n d colonists disputes, stating that:  ^ /b/dat 1 0 0 - 1 0 1 . 35  / b / d at 99.  36  Ibid at 109. Dowling J held that it would be most unjust and unconscionable to hold the prisoner amenable to the law of England for an offence committed against one of his own tribe.  37  Ibid at 101.  129  W e h a v e a right to subject t h e m to our laws if they injure us, but I know of no right p o s s e s s e d by us, of interfering w h e r e their disputes or acts, are confined to t h e m s e l v e s , a n d affect t h e m o n l y .  38  Both F o r b e s C J a n d Dowling J referred to instances of Aboriginal conduct that w e r e g o v e r n e d by Aboriginal law a n d therefore outside the s c o p e of British law. Importantly, they both r e c o g n i s e d the existence a n d binding quality of A b o r i g i n a l law.  3 9  F o r b e s C J clearly d e s c r i b e d Aboriginal c u s t o m , governing Aboriginal people,  a s law. H e held that a n Aboriginal p e r s o n "is g o v e r n e d by the laws of his t r i b e " .  40  F o r b e s C J held that Aboriginal people h a d a m o d e of redressing w r o n g s a n d that:  T h e y m a k e laws for t h e m s e l v e s , w h i c h are preserved inviolate, & are rigidly acted u p o n .  41  F o r b e s C J recognised the limited k n o w l e d g e of the nature of Aboriginal law but r e a s o n e d that, given the e x p e r i e n c e in other c o l o n i e s , it w a s probable that the "institutions of the native ... will be found to rest upon principles of natural j u s t i c e " .  38  42  / b / d at 108.  3 9  Dowling J's decision is premised on the recognition of Aboriginal law and he recognises their "institutions", presumably a reference to governmental organs. "Until the Aboriginal natives of this Country shall consent, either actually or by implication, to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought to justify us in interfering with their institutions even if such an interference were practicable". Ibid at 106 - 1 0 7 .  40  Ibid at 102-103.  41  Ibid at 104.  42  Ibid at 101-102.  130 Therefore, F o r b e s C J w a s of the "opinion that this m a n is not a m e n a b l e to E n g l i s h law for the act he is s u p p o s e d to h a v e c o m m i t t e d "  43  a n d the Court ultimately.held  that there w a s no jurisdiction a n d d i s c h a r g e d B a l l a r d .  44  T h e Australian n e w s p a p e r c o m m e n d e d this d e c i s i o n . In d i s c u s s i n g the j u d g e s ' presumption, it r e c o g n i s e d that they:  ... did not go upon the presumption of the native's i n n o c e n c e , but u p o n the injustice, the inconsistency, the absurdity of subjecting to the l a w s of civilized society, a s a v a g e , w h o , it w a s possible, might in his o w n estimation, a n d in the estimation of his c o u n t r y m e n , have b e e n but conforming to s o m e act of duty to his tribe, in imbruing his h a n d s in the blood of his e n e m y .  4 5  It s e e m s that public opinion, or at least a section of public opinion, w a s supportive of the separation of British law a n d Aboriginal law. Further, the injustice inherent in a situation w h e r e a p e r s o n b r e a c h e s British law whilst acting in a c c o r d a n c e with Aboriginal law is criticized a n d the judicial recognition of this injustice w a s applauded.  « / b i d at 106. 44  Ibid at 99.  45  Ibid. In Australian, 16 June 1829.  131  R v Murrell {1836)  In 1836, J a c k C o n g o Murrell a n d B u m m a r r e e w e r e indicted for the murders of two other Aboriginals, J a b b i n g e e a n d Definger at W i n d s o r o n the 2 1  s t  December 1835.  O n e of the victims w a s a m e m b e r of the group that had killed B u m m a r e e ' s brother a n d B u m m a r r e e relied o n c u s t o m a r y law a s a defence. T h e N e w S o u t h W a l e s S u p r e m e C o u r t r e c o g n i s e d it w a s clearly a c a s e of o b e d i e n c e to the native c u s t o m of r e v e n g e killing. H o w e v e r , only s e v e n y e a r s after Ballard, the Full C o u r t r e a c h e d the opposite c o n c l u s i o n and held that it had jurisdiction in a n intra-Aboriginal dispute.  F o r b e s C J heard this c a s e at first instance but Burton J , o n behalf of F o r b e s C J a n d Dowling J , h a n d e d d o w n the final u n a n i m o u s d e c i s i o n . F o r b e s C J offered contradictory opinions in this c a s e . In the first instance, o n 5 F e b r u a r y 1836, he r e s p o n d e d positively to the d e f e n c e ' s plea that there w a s no jurisdiction, referring to it a s "ingenious" a n d "perfectly j u s t ' .  46  H o w e v e r , his opinion h a d b e e n completely  transformed by 11 April 1836 w h e n Burton J read the u n a n i m o u s opinion of the Court, holding that the Court did h a v e jurisdiction.  F o r b e s C J , at first instance, restated his d e c i s i o n in R v Ballard a n d r e c o g n i s e d that A b o r i g i n a l people are "subject to the c u s t o m of their o w n l a w s " .  4 5  Above n 23 from Sydney Herald, 8 February 1836.  47  Ibid, from Australian, 9 February 1836.  47  Initially, Aboriginal  132  law is a c c e p t e d a s law. But, the Court ultimately rejected that this recognition implied s e p a r a t e sovereignties. Burton J granted that Aboriginal p e o p l e s :  ... are entitled to be regarded by Civilized nations a s a free a n d independent people, a n d are entitled to the p o s s e s s i o n of those rights w h i c h a s s u c h are v a l u a b l e to them, yet the various tribes had not attained at the first settlement of the E n g l i s h people a m o n g s t t h e m to s u c h a position in point of n u m b e r s a n d civilization, a n d to s u c h a form of G o v e r n m e n t a n d laws, a s to be entitled to be r e c o g n i z e d a s so m a n y s o v e r e i g n states g o v e r n e d by l a w s of their own.  4 8  Burton J r e c o g n i s e d Aboriginal people a s "free a n d independent" but did not r e c o g n i s e that Aboriginal people w e r e g o v e r n e d by law. W h a t is the b a s i s of Burton J ' s distinction? Is it legally s o u n d ? Burton J w a s operating on a presumption of A b o r i g i n a l inferiority.:  A l t h o u g h it had b e e n stated in e v i d e n c e that the B l a c k s w e r e generally c o n s i d e r e d a s beasts of the forest, he, in present of the Almighty G o d d e c l a r e d , that he looked o n t h e m a s h u m a n beings, having s o u l s to be s a v e d , a n d u n d e r the s a m e divine protection a s E u r o p e a n s  4 9  48  Ibid, from Supreme Court, Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161 at 211.  49  Ibid, from Sydney Herald, 16 May 1836. Burton J refers to himself as "he" in this quote.  133 J u s t i c e B u r t o n c o u p l e s his c o m m e n t s with a tone of self-congratulatory goodwill for at least r e c o g n i z i n g Aboriginal people a s h u m a n beings. J u s t i c e Burton e x p a n d e d on his ethnocentric view in his "Notes for Judgment", w h e r e he stated that Aboriginal:  ... practices are only s u c h a s are consistent with a state of the g r o s s e s t d a r k n e s s & irrational superstition a n d although in s o m e c a s e s being a s h o w of justice - are founded entirely upon principles particularly in their m o d e of vindication for p e r s o n a l w r o n g s upon the wildest most indiscriminatory notions of r e v e n g e .  50  A s a result of the denial of s e p a r a t e Aboriginal sovereignty, the Court did not d r a w a distinction between intra-Aboriginal disputes a n d disputes between Aboriginal people a n d c o l o n i s t s .  51  Therefore, the Court a c c e p t e d jurisdiction o v e r a n intra-Aboriginal dispute. In a c c e p t i n g jurisdiction, Burton J r e c o g n i s e d that neither past practice nor g e n e r a l opinion r e c o g n i s e d that the C o u r t h a d jurisdiction in intra-Aboriginal d i s p u t e s .  52  Burton J a u d a c i o u s l y a n d erroneously asserted that this c a s e w a s "the first of its sort"  53  a n d d e c l a r e d this to be "precedent for future p r o c e e d i n g s in like c a s e s " ,  54  50  Ibid, from Supreme Court, Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161 at 239.  51  Ibid, from Supreme Court, Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales,  52  Ibid, from Sydney Herald, 16 May 1836.  5/1161 at 214.  " ibid.  134  H o w e v e r , he did m a k e a discreet reference to differing judicial o p i n i o n s . A l t h o u g h this m a y be a reference to R v Ballard, it is more likely to be a reference to F o r b e s C J a n d in particular, F o r b e s C J ' s opinion e x p r e s s e d at first instance. Burton J did not a d d r e s s R v Ballard despite it being a contradictory d e c i s i o n by the s a m e court s e v e n y e a r s previously.  C h i e f J u s t i c e F o r b e ' s c h a n g e of opinion is particularly intriguing. F o r b e s C J h a d b e e n the subject of a strong attack from the conservative n e w s p a p e r , the Herald.  55  Sydney  T h e Sydney Herald a c c u s e d F o r b e s C J of being sympathetic to convicts, a  republican and a populist. H e w a s criticized for his constitutional position, a s illustrated by a harsh editorial o n 2 8 April 1836, w h e r e the Sydney Herald published, " W e h o p e he has taken his departure from t h e s e s h o r e s forever a s the C h i e f J u s t i c e a n d Legislator c o m b i n e d in o n e person".  T h e effectiveness of this attack w a s e x a c e r b a t e d by F o r b e s C J ' s illness a n d his imminent departure, which prevented him from r e s p o n d i n g . F o r b e s C J h a d b e e n ill b e t w e e n delivering his initial view in R v Murrell a n d the final d e c i s i o n a n d had not sat after 29 M a r c h 1836 until 11 April 1836, the d a y the d e c i s i o n in R v Murrell w a s d e l i v e r e d . O n 12 April 1836, F o r b e s C J last a p p e a r e d o n the b e n c h a n d he left the c o l o n y on 16 April 1836.  «Ibid. 6 5  For example, on 31 March 1836, the Sydney Herald reviewed his career on issues as early as 1827. As Forbes CJ was both ill and preparing to leave the colony, he was unable to respond.  135  P e r h a p s t h e s e p r e s s u r e s led F o r b e s C J to c o m p l y with Dowling and Burton J J in the u n a n i m o u s d e c i s i o n in R v Murrell? It is certainly surprising, given his strongly stated j u d g m e n t in R v Ballard and his initial opinion in R v Murrell. With his departure, Dowling J w a s appointed A c t i n g C h i e f J u s t i c e .  56  Burton J w a s "disappointed" a n d  reportedly believed he had a n e n e m y in the colonial office that had thwarted his appointment as C h i e f J u s t i c e . If Burton J w a s m a n e u v e r i n g for the C h i e f J u s t i c e position, p e r h a p s he w i s h e d to d i s t a n c e himself from F o r b e s C J ' s "liberality" a n d gain favour with both the p r e s s and the public. A l t h o u g h t h e s e inferences are speculative, given the nature of colonial frontier law and colonial court's h e i g h t e n e d susceptibility to public opinion a n d politics, t h e s e external factors could provide s o m e understanding to the context a n d r e a s o n i n g of F o r b e s C J ' s radical c h a n g e of opinion.  Rv Bonjon  (1841)  Bonjon, a W a d o r a man, w a s c h a r g e d with shooting a n d murdering Y a m m o w i n g of the Colijon p e o p l e .  57  Unlike Burton J in R v Murrell, Willis J did a d d r e s s previous  S u p r e m e Court of N e w S o u t h W a l e s d e c i s i o n s . However, Willis J did not c o n s i d e r himself bound by the d e c i s i o n in R v Murrell. H e held that the N e w S o u t h W a l e s  Forbes CJ was only leaving temporarily, however, due to ill health, he retired on 1 July 183.7. Dowling J was eventually made the permanent Chief Justice. The Colijon are now referred to as the Kolakngat. Interestingly, the offence occurred in Geelong. This may have been an important factor, allowing Willis J to distinguish the case from R v Murrell, where the murder'occurred in a very central, public location.  136  S u p r e m e C o u r t did not h a v e jurisdiction o v e r c r i m e s c o m m i t t e d by A b o r i g i n a l people against o n e another. T h i s led to a heated rebuke from Dowling C J , supported by G o v e r n o r G i p p s a n d the British G o v e r n m e n t , w h o d e c l a r e d that the q u e s t i o n of jurisdiction had b e e n settled in R v Murrell.  Following F o r b e s C J in R v Ballard, Willis J d r e w a distinction b e t w e e n intraA b o r i g i n a l d i s p u t e s a n d disputes b e t w e e n colonists a n d Aboriginal p e o p l e .  58  He  stated that Aboriginal people were subject to British law only in the latter. H e went a step further a n d d e c l a r e d that:  ... there is no e x p r e s s law, that I a m a w a r e of, that m a k e s the A b o r i g i n e s subject to our colonial c o d e .  5 9  After c o n s i d e r i n g the nature of settlement a n d the misinterpretations by British colonists of the nature of Aboriginal o c c u p a t i o n a n d Aboriginal law, Willis J c o n c l u d e d that:  . . . they are by no m e a n s d e v o i d of c a p a c i t y - that they have laws and  usages  of their own - that treaties s h o u l d be m a d e with t h e m - a n d that they h a v e b e e n driven a w a y , from S y d n e y at least, by the settlement of the colonists,  5 8  Above n 29. He gave examples of the first situation; the murder of William Tuck by Merridio and Negaril tried by Burton J in Dec 1838 and executed. Also, Charles Kilmaister (and six other colonists) tried and executed before Burton J in Sydney in Dec 1838 for the murder'of two Aboriginal children and an Aboriginal adult; Charley.  » Ibid.  137 but still linger about their native h a u n t s .  b0  In c o n s i d e r i n g the question of jurisdiction, Willis J exhibited humility a n d questioned" his authority to c o n s i d e r a n i s s u e of s u c h enormity. H e c o n c l u d e d that it w a s too m o m e n t o u s a question to be so hastily d e c i d e d : H o w e v e r he did indicate that:  F r o m t h e s e p r e m i s e s rapidly indeed collected, I a m at present strongly led to infer that the A b o r i g i n e s must be c o n s i d e r e d a n d dealt with, until s o m e further provision be made, a s distinct, though d e p e n d e n t tribes g o v e r n e d a m o n g t h e m s e l v e s by their o w n rude laws a n d c u s t o m s . If this be so, I strongly doubt the propriety of my a s s u m i n g the e x e r c i s e of jurisdiction in the c a s e before m e .  6 1  D e s p i t e this strong conviction, Willis J a c c e p t e d jurisdiction a n d Bonjon w a s ordered to stand trial.  COLONIAL RECOGNITION OF ABORIGINAL L A W  A critical e x a m i n a t i o n of t h e s e c a s e s reveals a n u m b e r of important i s s u e s . First, the current interpretation of early colonial law differs greatly from h o w it w a s c o n s i d e r e d  KJ/b/'d. 61  Ibid. This statement resonates with the language of Marshall CJ in the United States Supreme Court decision in Worcester v Georgia, 31 US (6 Pet) 515 (1832). This raises an interesting question of whether the Supreme Court of New South Wales knew of this decision when deliberating on R v Murrell in 1834, two years after Worcester v Georgia.  138  at the time. S e c o n d l y , there w a s a n active d e b a t e within the colonial judiciary a n d a l s o between the judiciary, the British Legislature a n d the m e d i a . Finally, the judiciary did recognise the e x i s t e n c e of Aboriginal law.  Contemporary Interpretation Flawed  T h e current position that Australian law applies to Aboriginal people in all c i r c u m s t a n c e s is largely influenced by the d e c i s i o n in R v Murrell.  62  O f the three  c a s e s , only R v Murrell w a s formally reported a n d only R v Murrell has b e e n cited with approval in the  20 c e n t u r y . th  63  H o w e v e r , all three c a s e s w e r e d e c i d e d by the  S u p r e m e Court of N e w S o u t h W a l e s , c o n s i d e r e d the s a m e question of jurisdiction but had vastly different results. T h e weight g i v e n to R v Murrell is u n r e a s o n a b l e . A l l three c a s e s should be e x a m i n e d carefully a n d with e q u a l weight.  T h e d e c i s i o n in R v Murrell h a s b e e n consistently misinterpreted. R v Murrell merely rejected absolute sovereignty, a rejection of the e x i s t e n c e of Aboriginal state sovereignty recognisable in the international W e s t p h a l i a n s y s t e m . T h i s is the s a m e type of sovereignty that the H i g h Court rejected in Coe (No. 1) a n d Coe (No. 2). H o w e v e r , this rejection d o e s not impact on the e x i s t e n c e of the c o m m o n law right of self-government. T h e Court in R v Murrell did not c o n s i d e r questions of modified  6 2  For example, the ALRC did not question the denial of plurality and undertook its inquiry into Aboriginal customary law on the basis of legal monism.  « Above n 24 at 181 and R v Wedge [1976] 1 NSWLR 581 at 586.  139  sovereignty or self-government. A n interpretation that s u g g e s t s that R v Murrell e x c l u d e s the possibility of continuing modified Aboriginal sovereignty is, with respect, incorrect.  In addition to the flawed interpretation of R v Murrell, the c o n t e m p o r a r y weight a n d respect attributed to R v Murrell is u n r e a s o n a b l e o n four g r o u n d s : conflicting authority, questionable precedential value, inadequate treatment of the law of nations a n d ethnocentricity.  First, R v Murrell did not a d d r e s s the previous related j u r i s p r u d e n c e in R v Ballard, w h i c h extensively c o n s i d e r e d the s a m e question of jurisdiction. U n d e r the doctrine of stare decisis, the d e c i s i o n of a higher court within the s a m e jurisdiction a c t s a s a binding authority o n a lower court within that s a m e jurisdiction. Stare decisis literally translates a s "to stand by d e c i d e d matters" and requires a j u d g e to follow particular previous d e c i s i o n s .  64  In this c a s e , the question is whether the N e w S o u t h W a l e s  S u p r e m e Court w a s bound by its o w n previous d e c i s i o n s . G e n e r a l l y , courts are bound by their previous d e c i s i o n s unless those d e c i s i o n s w e r e d e c i d e d per incuriam. A d e c i s i o n m a d e per incuriam is a d e c i s i o n m a d e "through the want of care". T h i s is a d e c i s i o n a s u b s e q u e n t court finds to h a v e b e e n mistaken, a n d therefore not binding. Burton J did not refer to Rv Ballard a n d it is unlikely that this is sufficient to render the d e c i s i o n in R v Ballard per incuriam.  M o r e importantly, g i v e n that Burton  J did not c o n s i d e r a previous, binding, contradictory d e c i s i o n , arguably, the o m i s s i o n  ^ A b o v e n 15 at 343.  140 to c o n s i d e r this relevant authority is sufficient to render the d e c i s i o n in R v Murrell per incuriam a n d therefore not binding.  S e c o n d l y , the d e b a t e continued after R v Murrell, a s c a n be s e e n in R v Bonjon, indicating that its role a s precedent w a s questioned at the time. Interestingly, o n the d a y after Willis J's judgment w a s delivered, the Court in M e l b o u r n e heard a c a s e involving two Aboriginal people c h a r g e d with murder for the traditional s p e a r i n g of another Aboriginal person in a c c o r d a n c e with Aboriginal law. After the C r o w n prosecutor in M e l b o u r n e had e x a m i n e d R v Bonjon, the C r o w n d e c l i n e d to p r o c e e d . T h e prisoner w a s r e m a n d e d to the next s e s s i o n and d i s c h a r g e d the following month. Therefore, despite R v Murrell, the d e c i s i o n in R v Bonjon questioning jurisdiction w a s interpreted, at least by the C r o w n prosecutor, to be binding.  J u d i c i a l c h a l l e n g e to the d e c i s i o n in R v Murrell, to a c c e p t jurisdiction in a n intraAboriginal dispute, continued after R v Bonjon. In 1841, the s a m e y e a r a s R v Bonjon, J u s t i c e C o o p e r of the S o u t h A u s t r a l i a n S u p r e m e C o u r t stated that it w a s :  ... i m p o s s i b l e to try a c c o r d i n g to the forms of E n g l i s h law, people of a wild a n d s a v a g e tribe w h o s e country although within the limits of the province of S o u t h Australia, has not b e e n o c c u p i e d by Settlers, w h o have n e v e r submitted t h e m s e l v e s to our d o m i n i o n a n d between w h o m a n d the C o l o n i s t s  141  there h a s b e e n no social i n t e r c o u r s e .  65  In 1846, C o o p e r J r e m a i n e d unwilling to c o n c e d e that Aboriginal p e o p l e s h o u l d be tried for offences under British law and argued that he required legislative direction for a n intra-Aboriginal dispute to be justiciable. H e d i s c h a r g e d the a c c u s e d b e c a u s e there w a s no competent interpreter a v a i l a b l e .  66  Thirdly, Burton J in R v Murrell d o e s not adequately c o n s i d e r or query the nature of the acquisition of sovereignty under the doctrine of d i s c o v e r y . T h i s is a n i s s u e that flows through t h e s e early d e c i s i o n s . Although I do not c o n s i d e r this in detail, suffice it to say, Burton J ' s treatment of the law of nations, Vattel and the doctrine of d i s c o v e r y is inadequate, e s p e c i a l l y w h e n c o n s i d e r e d in c o m p a r i s o n with the other two c a s e s in the t r i l o g y .  67  Finally, Burton J's r e a s o n i n g relies on the ethnocentric premise of Aboriginal inferiority. If this is the premise underlying the d e c i s i o n that has b e e n interpreted a s d e n y i n g legal pluralism in Australia, should this d e c i s i o n continue to be r e c o g n i s e d in c o n t e m p o r a r y t i m e s ? D o e s it hold up to contemporary standards or s h o u l d this r e a s o n i n g be r e c o g n i s e d a s erroneous a n d rejected a s the High C o u r t rejected the  6 5  ALRC above n 9 in vol. 2 at para 45.  6 6  Finally, in 1848, Cooper J accepted jurisdiction for an intra-Aboriginal dispute. However, before the trial started, he stated that in the event of a conviction, he would stay any execution required by law and refer the case to the Governor.  6 7  For further information, see Reynolds above n 11.  1 4 2  F e d e r a l Court d e c i s i o n of Milirrpum v Nabalco  68  (No. 2 J ?  6 9  in its landmark d e c i s i o n in Mabo  Burton J's r e a s o n i n g d o e s not conform to current j u r i s p r u d e n c e ,  anthropological t h e o r y  71  70  or c o n t e m p o r a r y standards. E v e n if this w a s a c c e p t a b l e at  the time, w h i c h is debatable, this reasoning is not a c c e p t a b l e today. This d e c i s i o n s h o u l d be re-examined as the High Court re-examined the d e c i s i o n of Milirrpum v Nabalco.  Therefore, a contemporary interpretation of R v Murrell as binding or final authority for the proposition that Australian law d o e s not r e c o g n i s e Aboriginal law or A b o r i g i n a l sovereignty overstates the significance of this decision. In addition to failing to c o n s i d e r either the historical context or the judicial recognition of A b o r i g i n a l law in c o n t e m p o r a r y times, this interpretation conflates the d e c i s i o n to e x c l u d e the possibility of recognising continuing modified Aboriginal sovereignty a n d Aboriginal self-government. This overstatement of R v Murrell perpetuates harmful legal and s o c i a l myths and is simply incorrect.  Milirrpum v Nabalco (1971) 17 FLR 141. Mabo v Queensland (No. 2) (1992) 175 CLR 1. 7 0  Lord Denning in R v Secretary of State for Foreign and Commonwealth Affairs [1982] 2 All ER 118 at 123 where he states that, "These customary laws are not written down. They are handed down by tradition from one generation to another. Yet beyond doubt they are well established and have the force of law within the community." See also Viscount Haldane in Amodu Tijani v Secretary, Southern Nigeria [1921 ] 2 A.C. 399 discussed in Chapter 2 and Hall J in Calder v British Columbia [1973] SCR 313; 34 DLR (3rd) 145 where he repudiates the lower court for being barbaric and uncivilised.  7 1  See Norbert Rouland, Legal Anthropology, trans, by Philippe Planel (London: Athlone Press, 1994).  143  The Debate  T h e r e w a s a n active dialogue in the early colonial period questioning the effect of acquisition o n Aboriginal law. T h i s dialogue continued a n d judges, g o v e r n o r s a n d legislatures d e b a t e d the question of legal pluralism for m a n y d e c a d e s . A s mentioned a b o v e , C o o p e r J continued questioning the a c c e p t a n c e of jurisdiction a n d o n at least o n e o c c a s i o n , C r o w n C o u n s e l c h o s e not to prosecute. In W e s t e r n Australia, G o v e r n o r Hutt w h o held office from 1839 - 1846, rejected the British G o v e r n m e n t ' s position that Aboriginal people w e r e subject to British law for offences committed against e a c h o t h e r .  72  T h e diverging o p i n i o n s held within the judiciary are evident from the three conflicting d e c i s i o n s m a d e by the s a m e court o v e r a period of twelve years. T h e strongly w o r d e d judgment of Burton J in R v Murrell is in direct contrast with the d e c i s i o n by F o r b e s C J in R v Ballard a n d Willis J in R v Bonjon. Not only w e r e differing o p i n i o n s e x p r e s s e d by different judges, but differing o p i n i o n s w e r e e x p r e s s e d by C h i e f J u s t i c e F o r b e s . F o r b e s C J ' s d e c i s i o n s at first instance a n d o n a p p e a l in R v Ballard a n d at first instance in R v Murrell are in stark contrast to his participation in the conflicting u n a n i m o u s judgment of R v Murrell. It is clear from t h e s e d e c i s i o n s that 7 2  ALRC above n 9 in vol. 1 at para 45. Governor Hutt was in office from 1 8 3 9 - 1846. During Governor Hutt's term, any acts "by natives against natives" in accordance with their own law, were ignored; Hasluck, Black Australians (Melbourne: Melbourne University Press, 1942). In contrast, Governor Fitzgerald, Governor Hurt's successor, complied with the British position contained in Grey's report and adopted a policy that resulted in the imposition of severe penalties.  144  there was a broad divergence of opinion within the colonial judiciary regarding the application of British law to intra-Aboriginal disputes. It is over-simplistic to rely on R v Murrell  as R v Murrell does not reflect this debate nor the general opinion within  the judiciary at the time.  The diverging opinions between the judiciary and the British Government is symptomatic of numerous declarations of the British Government that stress that Aboriginal people were British subjects and subject to British law, declarations that the judiciary interpreted to exclude the application of British law from intra-Aboriginal disputes. It was only in R v Murrell, in which Burton J himself recognised that his interpretation of the legislation was "in strict terms,"  73  that it was held that the British  and colonial legislation governed Aboriginal peoples in all circumstances. However, even after this decision expressing unanimity between the judiciary and the Government, judges, in particular Justice Cooper, continued to question the application of these declarations to intra-Aboriginal disputes.  There was also a divergence in opinion between the judiciary and the press, to which Burton J referred to in his judgment in R v Murrell. However, at other times, the newspapers applauded the Court for its decision, thereby distancing itself from the Government's positions. For example, R v Murrell was met with "surprise" and 74  7 3  Above n 23 from Sydney Herald, 16 May 1836.  74  Ibid, from Sydney Herald, 5 May 1836.  145  o n e correspondent to the S y d n e y H e r a l d urged future c o n s i d e r a t i o n . e x a m p l e is the high praise the Australian  75  A further  g a v e to the d e c i s i o n in R v Ballard.  Recognition of Aboriginal Law  T h e d e b a t e focused on the q u e s t i o n of whether the Court's jurisdiction s h o u l d be r e c o g n i s e d in intra-Aboriginal disputes. It w a s a question of whether British law negated Aboriginal law in all c i r c u m s t a n c e s . T h e crucial principle that a r i s e s from this d i a l o g u e is not whether the position of the judiciary prevailed o v e r the legislature, or whether Burton J's opinion ultimately prevailed o v e r the j u d g m e n t s of F o r b e s C J , but rather that, despite the various positions t a k e n in this controversy, there w a s consistent recognition that Aboriginal p e o p l e w e r e g o v e r n e d by Aboriginal law. T h i s w a s evident in R v Ballard, R v Murrell at first instance a n d R v Bonjon. E v e n Burton J , in R v Murrell, r e c o g n i s e d Aboriginal c u s t o m a n d that Aboriginal people are g o v e r n e d by their o w n s y s t e m of rules. A l t h o u g h he d e n i e d its status a s law, u n d e r a particularly narrow, ethnocentric definition g r o u n d e d in law of nation's understandings of law, state a n d sovereignty, Burton J's recognition of c u s t o m a m o u n t s to contemporary understandings of law. A p p l y i n g Lord D e n n i n g ' s test in R v Secretary  of State for Foreign and Commonwealth  Affairs, Burton J's c o n c e p t of  "custom" in R v Murrell is merely that it is unwritten law.  75  Ibid. Future consideration was urged in order to prevent a "legal murder".  146  In any event, the fact that Burton J r e c o g n i s e d Aboriginal people w e r e g o v e r n e d by rules, e v e n if he did not r e c o g n i s e that t h e s e rules w e r e law, is a striking e x a m p l e of the depth of understanding the colonial judiciary had of Aboriginal p e o p l e s . T h e colonial judiciary did not c o n s i d e r Aboriginal p e o p l e as without law.  T h e r e is recognition of Aboriginal law in this trilogy and in G o v e r n o r s ' proclamations, discretions, legislation and other judicial d e c i s i o n s . T h i s recognition continued b e y o n d the early 19th century.  T o w a r d s the end of the 19th century, it s e e m s that the judicial revolution and flexibility c e a s e d . Opposition, s u c h a s that v o i c e d by J u s t i c e s ' Willis and C o o p e r , w a s slowly o v e r w h e l m e d by j u d g m e n t s recognising jurisdiction in intra-Aboriginal disputes. In addition, the pastoral frontier had b e g u n to a d v a n c e rapidly into the interior and a s it did, "the clever w o r d s of n e w s p a p e r editors and the ethical d i l e m m a s of evangelists b e c a m e increasingly irrelevant".  76  Settlers, b e y o n d the  range of the police, w e r e often u n c o n c e r n e d about Aboriginal rights and b e g a n to view Aboriginal people a s t r e s p a s s e r s . At this time, frontier v i o l e n c e e s c a l a t e d and a n u m b e r of infamous m a s s a c r e s o c c u r r e d .  77  7 6  Robert Foster, Rick Hosking & Amanda Nettelbeck, Fatal Collisions: The South Australian Frontier and the Violence of Memory (Kent Town: Wakefield Press, 2001) at 5.  7 7  This is not to say that there was no frontier violence before this time. For example, Pemulwuy has been touted as the first guerilla fighter, who fought from 1790 to 1802 when he was shot. From 1822-1824 the Wiradjuri resisted colonisation along the Murray River. In Tasmania, the Black War was fought from 1827 - 1830. In Western Australia, Yagan led the Noongar resistance from 1831 - 1833. In 1834, the Pinjarra massacre occurred. However, in the 1840's, the commonality and the extent of the violence increased. For example, the Maria Massacre in South Australia and the Rufus River conflict. For more details on these massacres, frontier violence and Aboriginal resistance, see ibid. See also, Henry Reynolds, The Other Side of the Frontier (Ringwood: Penguin, 1982); Meredith Hooper, Doctor Hunger & Captain Thirst (North Ryde: Methuen, 1982); Bill Peach, The Explorers (Sydney: ABC Enterprises, 1984).  147  T h e r e w a s relatively little explicit legal d e v e l o p m e n t during this period. Aboriginal people w e r e c o n s i d e r e d b e y o n d or external to the l a w .  78  T h e r e w a s little or no  protection offered by a predominantly p e r m i s s i v e legal culture. T h e r e is a rich body of material referring to the atrocities that took p l a c e a n d the moral a m b i v a l e n c e of the protectionist a n d assimilationist social policies, most starkly illustrated by the Aboriginal Act 1905 (Cth), a n act that created Protectors a n d authorised the r e m o v a l of Aboriginal children. H o w e v e r , there w a s also a variety in the a p p r o a c h e s taken by States, s o m e apparently more progressive. All of the a p p r o a c h e s taken by the different states are set out in a variety of reports, the most pertinent of w h i c h is the Bringing  Them Home  Report.  79  Despite this bleak history, there w e r e i n s t a n c e s of recognition of Aboriginal law, particularly in the 1920's a n d 1930's. F o r e x a m p l e , in 1936, a n a d - h o c court w a s established by the Native Administration  Act 1905-1936 ( W A ) with jurisdiction for  offences by Aboriginal people against Aboriginal people. S e c t i o n 63(2) of this A c t allowed for c u s t o m a r y laws to be taken into a c c o u n t in mitigation of punishment. T h e r e w e r e also attempts at Aboriginal courts a n d A b o r i g i n a l police in Q u e e n s l a n d . Further, the legislature b e g a n to m a k e provisions for the recognition of Aboriginal  78  ALRC above n 9 in vol. 1 at para 48, where there is reference to the 1920's and 1930's as a phase of non-recognition.  79  Australia, Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Sydney: Human Rights and Equal Opportunity Commission, 1997).  8 0  ALRC above n 9 in vol. 1 at para 49. See also para. 49 - 58 for details of administrative and legislative responses to rectify the non-recognition of Aboriginal law.  8 0  148  law.  81  A s a result, a variety of criminal reforms providing the discretion to r e c o g n i s e  Aboriginal law a s a mitigating c i r c u m s t a n c e in s e n t e n c i n g w e r e i m p l e m e n t e d .  It w a s not until the 1967 referendum that the F e d e r a l G o v e r n m e n t h a d the responsibility a n d the p o w e r to m a k e l a w s with respect to A b o r i g i n a l people a n d Aboriginal people were counted in the national c e n s u s . A r g u a b l y , it w a s only at this time that Aboriginal people w e r e brought within Australian law a n d that before 1967, Aboriginal people were outside Australian law. C o n s i d e r e d in this way, the referendum indicates further a n d e x t e n s i v e recognition of the e x i s t e n c e of Aboriginal law throughout the colonial frontier.  82  T H E C O N T E M P O R A R Y SITUATION  In recent years, there h a s b e e n a n increasing t e n d e n c y by the courts to r e c o g n i s e a n d enforce Aboriginal law. Aboriginal law has b e e n r e c o g n i s e d in substantive criminal law, a s relevant to the e x e r c i s e of discretion in s e n t e n c i n g , in a s s e s s i n g d a m a g e s for loss of amenities, a n d for the p u r p o s e of adoption l a w s .  8 3  A recent  study in W e s t e r n Australia s u m m a r i s e s the a p p r o a c h of Australian courts to  8 1  ALRC above n 9 in vol. 2 in Pt 6 from para 678.  8 2  The status of Aboriginal peoples regarding the law is still ambiguous. Since the 1967 referendum and the consequential amendment to s 51 (xxvi) of the Constitution, there has been continual debate as to whether this constitutional provision to make laws with respect to Aboriginal people may be used for beneficial purposes. See Koowarta v Bjelke-Peterson (1982) 153 CLR 168 and in particular the judgment of Gaudron J .  83  Ibidai 58. See Napalumav Baker (1982) 29 SASR 192 followed in Dixon v Davies (1982) 17 NTR 31 for damages.  149  Aboriginal law in the a r e a s of criminal law, civil law and family l a w .  84  In criminal law,  Aboriginal law has b e e n c o n s i d e r e d in diverse a r e a s , including bail, p r o c e d u r e , s e n t e n c i n g and d e f e n c e s s u c h as consent, d u r e s s , provocation and h o n e s t c l a i m of right. In civil law, Aboriginal law has b e e n r e c o g n i s e d in coronial and burial matters a n d also in family law for m a r r i a g e s and the p l a c e m e n t of children.  M o r e c o m p r e h e n s i v e l y , the continuing vitality of Aboriginal law w a s r e c o g n i s e d by the High Court d e c i s i o n in Mabo (No. 2).  85  This watershed decision recognised  Aboriginal law a s a s o u r c e of indigenous rights to land.  Native title has its origins in and is g i v e n its content by the traditional c u s t o m s o b s e r v e d by the Indigenous inhabitants of a territory. T h e nature and incidents of native title must be a s c e r t a i n e d as a matter of fact by reference to those laws and c u s t o m s .  8 4  86  Law Reform Commission of Western Australia, Approach of Australian Courts to Aboriginal Customary Law, Background Paper No. 1 (December 2003). This paper attempts to exhaustively summarise decisions that consider Aboriginal law. This is the first background paper of the Law Reform Commission of Western Australia's current project on Aboriginal customary law. The terms of reference are much broader than the ALRC (although limited to Western Australia) but do require that the ALRC report is considered. Since there are many more programmes in place and people are far more receptive to the idea of reconciliation and community based justice mechanisms, the Law Reform Commission of Western Australia sees itself as building on from the work of the ALRC, although not being as restricted in their scope. As Heather Kay replied, when asked about the progress of the current reference: I think predominantly the issues we have come into contact with concern the need for communities to feel ' empowered, and often customary law is what communities focus on to give them this sense of empowerment. per Heather Kay, Executive Officer of the Law Reform Commission of Western Australia, email, 6 April 2004.  8 5  Rob McLaughlin 'Some Problems and Issues in the Recognition of Indigenous Customary Law' 3(82) Aboriginal Law Bulletin (1996) 4; Noel Pearson, 'Reconciliation to be or Not to be: Separate Aboriginal Nationhood or Aboriginal SelfDetermination and Self-Government within the Australian Nation' 3(61) Aboriginal Law Bulletin (1993) 14.  8 6  Above n 69 at 58 per Brennan J.-  150  T h e recognition that Aboriginal law influences the content of native title a c k n o w l e d g e s a n existing body of Aboriginal law. B r e n n a n J a l s o r e c o g n i s e d that A b o r i g i n a l law is d y n a m i c . H e held that native title is not a bundle of specific rights frozen at the assertion of British sovereignty, but has continued to d e v e l o p o v e r the last two c e n t u r i e s .  87  Therefore, there is legal recognition of Aboriginal law a s a d y n a m i c body of law in both historical a n d c o n t e m p o r a r y times. W h a t are the implications of this recognition?  ADMINISTRATIVE FLEXIBILITY OR L E G A L P L U R A L I T Y ?  T w o inferences m a y be drawn from t h e s e instances of recognition. First, that there w a s a n era of "administrative flexibility", a s s u g g e s t e d by the A u s t r a l i a n L a w R e f o r m C o m m i s s i o n ( " A L R C " ) or s e c o n d l y , that Australia w a s (and is) a plural legal society. T w o reports, the A L R C ' s , Recognition  of Customary  Law, w h i c h although p u b l i s h e d  in 1986 is still c o n s i d e r e d a relevant and important work a n d the R e p o r t of the R o y a l C o m m i s s i o n on Aboriginal P e o p l e s ( " R C A P " )  8 8  published in C a n a d a in 1996, must  b e c o n s i d e r e d . Both of t h e s e reports w e r e major contributions to the d o c u m e n t a t i o n  87  Ibid at 41 per Brennan J. See also Kent McNeil, Emerging Justice: Essays on Indigenous Rights in Canada and Australia (Saskatoon: Houghton Boston Printers, 2001) at 416 - 465; Jeremy Webber, "Native Title as Self-Government" (1999) 22:2 University of New South Wales Law Journal 600 at 602.  8 8  Canada, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, vol 2:2 (Ottawa: Canada Commuication Group, 1996) ("Restructuring the Relationship"); Canada, Partners in Confederation: Aboriginal Peoples, Self-Government and the Constitution (Ottawa: Canada Communication Group, 1993) ("Partners in Confederation").  151  of the history of colonial contact and the effect of c o l o n i a l i s m o n both indigenous p e o p l e s a n d indigenous law.  T h e A L R C report c o n s i d e r e d the recognition of Aboriginal law by A u s t r a l i a n courts. T h i s report has serious limitations.  T h e A L R C c o n s i d e r e d whether it w o u l d be desirable to apply Aboriginal c u s t o m a r y law to A b o r i g i n a l people. T h e report focused on the recognition of A b o r i g i n a l law by the courts in criminal law, family law and for the p u r p o s e s of hunting, fishing a n d gathering rights. T h e A L R C c o n c l u d e d that although Aboriginal law h a s b e e n r e c o g n i s e d in s o m e c a s e s , this recognition has b e e n "exceptional, uncoordinated and incomplete."  89  T h e y c o n c l u d e d that recognition did not a m o u n t to a legal  obligation but w a s merely a matter of administrative flexibility. A s a result, the A L R C c o n s i d e r e d that the s c o p e for recognition through the c o m m o n law w a s "very limited" a n d determined that Australia is not required, although not prohibited, from recognizing Aboriginal l a w .  9 0  A l t h o u g h , a c c o r d i n g to the A L R C , Australia is not required to r e c o g n i s e Aboriginal law, the A L R C r e c o m m e n d e d that Aboriginal law s h o u l d be r e c o g n i s e d in appropriate w a y s .  9 1  "Appropriate ways" were limited to opportunities of recognition  within the existing judicial a n d administrative structures. A s a result, the A L R C 8 9  Above n 9 vol. 1 at para 62 - 63, 68, 70 - 75, 76 - 84 and 85. For a summary, see above n 3 vol. 2 at para 1005.  9 0  Above n 9 vol. 1 at para 171-8.  9 1  to/of at para 194.  152  r e c o m m e n d e d avoiding the creation of new and s e p a r a t e legal s t r u c t u r e s .  92  Essentially, the A L R C ' s r e c o m m e n d a t i o n s w e r e to maintain the current monistic legal s t r u c t u r e  93  w h e r e the general law is not e x c l u d e d and Aboriginal laws are not  directly e n f o r c e d .  94  W h i l e this report contains valuable factual information, it is n o n e t h e l e s s flawed in its c o n c e p t i o n , analysis, c o n c l u s i o n a n d r e c o m m e n d a t i o n s . C o n c e p t u a l l y , it is limited by its terms of reference to c o n s i d e r only h o w to "apply" Aboriginal laws. T h i s d o e s not allow for a n y shift in the current power i m b a l a n c e b e t w e e n Australian a n d A b o r i g i n a l legal s y s t e m s . A s a result, the a n a l y s i s did not c o n s i d e r Aboriginal law a s a n e q u a l legal s y s t e m , a failure inconsistent with contemporary s o c i a l and legal thought and international l a w .  9 5  T h e A L R C ' s a n a l y s i s did not adequately a d d r e s s the injustice of the historical a n d contemporary silencing of Aboriginal law. T h e A L R C did not c o n s i d e r international law and self-determination a s rights relevant and applicable in A u s t r a l i a . Further, the A L R C failed to c o n s i d e r the c o m m o n law inherent right of Aboriginal selfgovernment. T h e r e w a s no genuine consideration of a n y legally enforceable rights. Instead, the A L R C report s h o w e d c o n c e r n for public opinion and p a n d e r e d to fears of legal pluralism, ultimately deferring to Parliament to m a k e a political d e c i s i o n .  92  Ibid at para 196.  " /b/rJat para 199-207. 94  Ibid at para 200 -203, 208.  95  Above n 71. See also Lord Denning in R v Secretary of State for Foreign and Commonwealth Affairs [1982] 2 All E R 1 1 8 at 123. See also the discussion of self-determination in Chapter 1.  153  Not surprisingly, the A L R C did not m a k e a n y r e c o m m e n d a t i o n s b e y o n d the current s c o p e a n d structure of the A u s t r a l i a n legal s y s t e m . T h e s e r e c o m m e n d a t i o n s w e r e limited in this m a n n e r a s a result of the A L R C c o n c l u s i o n that Australia is not required to r e c o g n i s e A b o r i g i n a l law, a c o n c l u s i o n inconsistent with both the c o m m o n law a n d international law.  T h e A L R C ' s reliance on "administrative flexibility" failed to c o n s i d e r properly the active d e b a t e or the consistent recognition of Aboriginal law that has o c c u r r e d both historically a n d in c o n t e m p o r a r y times. T h e A L R C ' s interpretation that t h e s e w e r e merely acts of administrative flexibility w a s a n interpretation grounded entirely within the ideology of legal m o n i s m . H o w e v e r , this d e b a t e a n d the recognition of A b o r i g i n a l law constitute a serious judicial challenge and are more than merely administrative flexibility. Not only w a s this d e b a t e part of a dialogue between the c o l o n y a n d Britain, questioning the British interpretation of the doctrine of d i s c o v e r y a n d the justice of applying British law to intra-Aboriginal disputes, this dialogue involved consistent recognition of another legal s y s t e m . Australia w a s , a n d still is, a plural legal society.  T h e A L R C report h a d inherent limitations that resulted in its incapacity to c o n s i d e r the possibility of r e c o g n i s i n g Australia a s a plural legal society. T h i s is inconsistent with international d i s c o u r s e o n self-determination a n d the c o m m o n law inherent right of Aboriginal self-government. T h e more recent report by R C A P c o n s i d e r e d similar  154 i s s u e s in the context of C a n a d a .  R C A P operated on a fundamentally different premise from the A L R C and w a s not limited to "applying" indigenous law within the p a r a d i g m of legal m o n i s m . T h e terms of reference w e r e ambitious and reflected "the depth of the c h a l l e n g e this country h a s yet to m e e t " .  97  R C A P c o n s i d e r e d four interdependent a r e a s : the reality of  societal and cultural difference, the right of self-government/the nature of aboriginal nationhood a n d the requirement for a d e q u a t e land, r e s o u r c e s and self-reliant economies  9 8  A l t h o u g h this inquiry w a s m u c h broader than the A L R C ' s , it did  c o n s i d e r the interaction between aboriginal law and C a n a d i a n law. Further, R C A P c o m p r e h e n s i v e l y c o n s i d e r e d the c o m m o n law right of self-government a n d determined that this w a s a n inherent right arising from aboriginal p e o p l e s ' original status a s independent and s o v e r e i g n n a t i o n s .  99  A s R e n e D u s s a u l t stated at the  l a u n c h of R C A P ' s Final Report:  Our view o n this issue is clear. T h e inherent right of Aboriginal p e o p l e s to g o v e r n t h e m s e l v e s is firmly a n c h o r e d in history and, w e believe, in l a w .  1 0 0  R C A P c o n c l u d e d that the right of self-determination is the fundamental starting point  9 6  RCAP: Restructuring the Relationship above n 88 at 186.  9 7  Georges Erasmus, speaking with Rene Dussault, "Address for the Launch of the Report of the Royal Commission on Aboriginal Peoples" at <http://www.ainc-inac.gc.ca/ch/rcap/spch_e.html>.  98  9 9  100  ibid. RCAP: Restructuring the Relationship above n 88 at 193. R C A P concluded that the inherent right of Aboriginal selfgovernment is recognized and affirmed in section 35(1) of the Constitution Act 1982 above n 88 at 213. Rene Dussault, speaking with Georges Erasmus, "Address for the Launch of the Report of the Royal Commission on Aboriginal Peoples" at <http://www.ainc-inac.gc.ca/ch/rcap/spch_e.html>.  155 for Aboriginal g o v e r n a n c e . Further, R C A P determined that aboriginal p e o p l e s also p o s s e s s a n inherent right of self-government within C a n a d a a s a matter of C a n a d i a n c o m m o n law a n d C a n a d i a n constitutional law.  A l t h o u g h C a n a d a h a s a different political a n d constitutional structure than Australia, the shared colonial c o m m o n law heritage is the n e x u s that m a k e s this report not only relevant, but a l s o crucial, to understanding the c o m m o n l a w position in A u s t r a l i a .  T h e s e two reports h a v e vastly different perceptions of the relationship b e t w e e n i n d i g e n o u s law a n d A u s t r a l i a n a n d C a n a d i a n law respectively. T h e A L R C report c o n s i d e r e d the q u e s t i o n of how to "apply" A b o r i g i n a l law a n d determined that recognition of Aboriginal law a m o u n t s only to i n s t a n c e s of administrative flexibility. T h e A L R C report w a s a self-fulfilling prophecy. In contrast, R C A P c o n s i d e r e d short a n d long term solutions to historical a n d contemporary injustice a n d determined that the only w a y forward w a s to r e c o g n i s e the e x i s t e n c e of indigenous legal s y s t e m s through the inherent right of self-government a n d the right to self-determination. R C A P r e c o m m e n d e d the recognition of legal pluralism.  T h e r e is a c h o i c e in the c o n t e m p o r a r y juridical s y s t e m . H o w e v e r , o n e must question the continuing adoption of a n out-dated report, w h i c h ignores contemporary d o m e s t i c a n d international legal obligations a n d h u m a n rights standards, a s the preeminent statement o n the recognition of the e x i s t e n c e of Aboriginal law. T h e position of "administrative flexibility" t a k e n by the A L R C must be rejected. O n c e this o c c u r s ,  156  R C A P ' s useful a n d informative document, e s p e c i a l l y its c o n s i d e r a t i o n of the recognition of self-government a n d its articulation of the relationship between recognition of Aboriginal law a n d the inherent right of self-government, s h o u l d be adopted.  ABORIGINAL L A W A N D S E L F - G O V E R N M E N T  T h e recognition of Aboriginal law by A u s t r a l i a n courts d e m o n s t r a t e s that a limited d e g r e e of self-government or l a w - m a k i n g p o w e r s r e m a i n e d with Aboriginal p e o p l e after the assertion of sovereignty a n d after the drafting o f the Constitution  Commonwealth  in 1 9 0 1 . T h i s relationship is best e x p l a i n e d by briefly c o n s i d e r i n g  C a n a d i a n jurisprudence.  S i n c e 1867, C a n a d i a n courts h a v e r e c o g n i s e d and enforced laws m a d e by A b o r i g i n a l societies. T h e s e c a s e s primarily c o n c e r n c u s t o m a r y marriage, beginning with Connelly  v Woolrich (1867).  w  Band v Canada™  a n d McLeod  2  M o r e recent c a s e s include Wewayakum  Lake Indian Band v Chingee.  103  Indian  T h e relationship  b e t w e e n the recognition of A b o r i g i n a l law a n d c o m m o n law self-government is clearly articulated in Justice W i l l i a m s o n ' s judgment in Campbell  v British  1 0 1  (1867) 11 L.C.J 197.  1 0 2  [1991] 3 FC 420 at 430.  1 0 3  These cases primarily concern customary marriage, beginning with Connolly v Woolrich (1867) 11 LCJ 197. More recent cases include Wewayakum Indian Band v Canada [1991] 3 FC 420 at 430 and McLeod Lake Indian Band v Chingee (1998) 165 DLR (4<) 358. See Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333 at 358 - 360 for other authorities. h  157 Columbia.  104  J u s t i c e W i l l i a m s o n a c c e p t e d that A b o r i g i n a l p e o p l e had legal s y s t e m s  prior to contact and that t h e s e legal s y s t e m s , although modified, continued after contact. T h e recognition of c u s t o m a r y law by C a n a d i a n courts d e m o n s t r a t e s :  ... not only that at least a limited right of self-government, or a limited d e g r e e of legislative power, r e m a i n e d with A b o r i g i n a l p e o p l e s after the a s s e r t i o n of 1  sovereignty a n d after C o n f e d e r a t i o n , but a l s o that s u c h rules, w h e t h e r they result from c u s t o m , tradition, a g r e e m e n t , or s o m e other d e c i s i o n m a k i n g p r o c e s s , are "laws" in the D i c e y constitutional s e n s e .  1 0 5  Therefore, in C a n a d a , the right to m a k e laws s u r v i v e d the assertion of sovereignty and Confederation.  In A u s t r a l i a , the right to m a k e laws a l s o survived the a s s e r t i o n of sovereignty. T h i s c a n be s e e n in the recognition of A b o r i g i n a l law by the courts, legislature a n d the e x e c u t i v e . Despite R v Murrell, i n s t a n c e s of A b o r i g i n a l c u s t o m a r y law a n d the e x i s t e n c e of Aboriginal l a w - m a k i n g p o w e r are r e c o g n i s e d a s o c c u r r i n g within the nation-state. T h i s o n e a s p e c t of A b o r i g i n a l sovereignty, the right to m a k e laws, is r e c o g n i s e d a s existing in A u s t r a l i a . Therefore, A b o r i g i n a l l a w - m a k i n g p o w e r exists h a r m o n i o u s l y with C r o w n sovereignty.  104  1  Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th)  °5/b/d at 355.  333.  158  T h e continuing recognition of Aboriginal law, e n f o r c e a b l e in the courts, is recognition of political structures that do not derive their authority from constitutional division of legislative p o w e r .  1 0 6  T h e recognition of political structures a n d the right to m a k e  laws, w h i c h bind the A b o r i g i n a l community, is the m e a n s by w h i c h a right of selfg o v e r n m e n t is i m p l e m e n t e d .  107  CONCLUSION  T h e early colonial period w a s effectively a time of legal pluralism. D e s p i t e the classification of Aboriginal people a s British subjects, in practice, the application of British law to Aboriginal p e o p l e w a s conditional. T h e early practice w a s to a p p l y E n g l i s h law to offences committed by Aboriginal p e o p l e against colonists a n d v i s a v e r s a . H o w e v e r , w h e r e a n Aboriginal p e r s o n committed a n offence against another A b o r i g i n a l person, the applicability of British law was. q u e s t i o n e d a n d A b o r i g i n a l law w a s recognised.  T h e contemporary interpretation of R v Murrell a s authority for the proposition that the Australian legal s y s t e m has never r e c o g n i s e d A b o r i g i n a l law both misinterprets a n d g r o s s l y overstates this d e c i s i o n . It a l s o fails to r e c o g n i s e two other important d e c i s i o n s in R v Ballard'and  R v Bonjon. A c o n s i d e r a t i o n of t h e s e three c a s e s  1 0 6  In Canada, this was in the Constitution Act 1867. In Australia, the Commonwealth Constitution. •  107  Campbell v British Columbia (Attorney General) (2000) 189 DLR (4th) 333 (Written argument of the Nisga'aTribal Council). , • •  159  reveals an active debate within and between the judiciary, government and press, which indicated that Aboriginal law was recognised.  This recognition continued into contemporary times, including the period leading up to Coe (No. 1) and Coe (No. 2), where the assertion of absolute sovereignty was rejected. However, as mentioned in Chapter 2, these cases did not consider the continuing existence of modified Aboriginal sovereignty. Rather, the colonial common law doctrine of self-government, as articulated by Chief Justice Marshall in Worcester  v Georgia,  forms part of Australian common law. Modified sovereignty  and the inherent right of self-government are consistent with the continuing recognition of the existence of Aboriginal law.  The recognition of Aboriginal law is more than mere "administrative flexibility" and amounts to recognition of legal plurality. With the recognition of legal plurality and Aboriginal customary law, it is recognised that Aboriginal people have law-making power and the right to make laws. This is the foundation of the common law inherent right of self-government.  160  Chapter Six CONCLUSION Discussion  on Aboriginal  sovereignty  in Australia  is almost  forbidden.  1  T h e failure to recognise and give effect to Aboriginal rights, including A b o r i g i n a l selfgovernment, has contributed to a significant p o w e r i m b a l a n c e b e t w e e n A b o r i g i n a l p e o p l e a n d the wider Australian society. T h i s i m b a l a n c e is manifest in a lack of e d u c a t i o n , e m p l o y m e n t and healthcare options for Aboriginal people a n d in the overrepresentation of Aboriginal people in the criminal justice s y s t e m . W h i l e it is true that A u s t r a l i a n s have e m b r a c e d s o m e a s p e c t s of Aboriginal culture - e s p e c i a l l y in art a n d sport - g o v e r n m e n t s a n d the courts cling stubbornly to colonial attitudes w h e n it c o m e s to matters of justice a n d civil a n d political rights.  A b o r i g i n a l self-government is a c o m m o n law right. In order to maintain the c o n c e p t u a l integrity of the Australian legal s y s t e m , after years of misapplication, the c o m m o n law must be correctly a p p l i e d . T h e continuing failure to r e c o g n i s e self2  g o v e r n m e n t contributes to the current p o w e r i m b a l a n c e a n d reinforces the colonial mindset that remains prevalent in Australia today. It is time to a d d r e s s the flawed  1  Michael Mansell, "The Bicentenary and Aboriginal Sovereignty" (1988) Law Institute Journal 1206 at 1207.  2  For a discussion of how the recognition of native title involved the correct application of the common after years of misapplication, see Garth Nettheim, Gary Meyers & Donna Craig, Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights (Canberra: Aboriginal Studies Press, 2002) at 238.  161 interpretation of the common law and the injustices this interpretation perpetuates. A s Germaine Greer writes:  There is only one way to escape from an impasse, and that is to turn back to the point where you went wrong, sit down on the ground and have a think about it.  3  It is time to stop. The dominant argument used to deny the existence of selfgovernment cannot be maintained. An argument that self-government is incompatible with the Australian state fails to comprehend the distinction between absolute and modified sovereignty. Although Australian courts have rejected absolute sovereignty, there has never been any judicial consideration of the existence of modified Aboriginal sovereignty or the inherent right of self-government.  By returning to the pivotal periods in colonial history, it becomes apparent that the inherent right of self-government existed as part of the colonial common law imported into Australia. This is most clearly stated in Chief Justice Marshall's leading judgment in  Worcester  v Georgia.  4  Although self-government was not explicitly  recognised in Australia, the colonial judiciary did consistently recognise the existence of Aboriginal law. Despite British declarations to the contrary, internal Aboriginal disputes were considered to be beyond the reach of British law and  3  Germaine Greer, Whitefella Jump Up: The Shortest Way to Nationhood (Melbourne: Black Inc, 2003) at 2.  "(1832)31 US (6 Pet) 515.  162 g o v e r n e d solely by Aboriginal law. T h e recognition of Aboriginal law continues today. T h i s is the foundation of the inherent right of self-government.  In order for the inherent right of self-government to b e c o m e a reality, there must be fundamental c h a n g e s to both the A u s t r a l i a n legal s y s t e m a n d the perception of the A u s t r a l i a n legal s y s t e m . T h e Australian legal s y s t e m is not fragile. It is a d y n a m i c b o d y of law. F e a r s that recognition of modified Aboriginal sovereignty a n d Aboriginal self-government will fracture Australia's legal skeleton are unfounded a n d fanciful. D e s p i t e "the sky is falling" critics, native title has not brought the legal s y s t e m to its k n e e s . H o w e v e r , the conservative interpretation of this c o m m o n law right a n d the continuing denial of modified Aboriginal sovereignty and self-government are slowly but surely undermining both the legal and political s y s t e m s a n d A b o r i g i n a l p e o p l e s ' c l a i m s to justice.  S o v e r e i g n t y is not the S - w o r d .  5  In a free a n d d e m o c r a t i c society, political d i s c u s s i o n o n a n issue fundamental to Australia's nationhood must not be s i l e n c e d . T h e continuing m a i n t e n a n c e of the position that sovereignty a n d self-government are i s s u e s b e y o n d the s c o p e of A u s t r a l i a n law perpetuates historical colonial injustice a n d a m o u n t s to a c o n t e m p o r a r y d e n i a l of fundamental h u m a n rights.  6  Larissa Behrendt, "Slicing the Circle: Treaty, Native Title, Aboriginal Sovereignty and the Compartmentalizing of Indigenous Rights in Australia" (Paper presented to the Indigenous Bar Association Conference in Ottawa, 2000) [unpublished] at 4.  163  T h e c o m m o n law right of Aboriginal self-government must be r e c o g n i s e d . T h i s is not only a matter of morality a n d justice; it is a matter of law.  164  BIBLIOGRAPHY JURISPRUDENCE  Australia Coe v Commonwealth  (1979) 2 4 A L R 118.  Coe v Commonwealth  (1993) 118 A L R 193.  Cooper  v Stuart (1889) 14 A p p C a s 2 8 6 .  Dixon v Davies (1982) 17 N T R 3 1 .  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