ESSAY
This essay quoted a Kirby passage in which he said that Mabo doesn't create a duel system of law. He also wrote that for Aboriginal rights to be found there had to be a foundation within the Australian Legal System. While at first one thought by looking at the quote this meant only parliament could do something - I have made a number of suggestions which given a more progressive high court - could find some justice for Indigenous Australians after 200 years of neglect. Here it is:
The assumptions contained in the quote from Kirby J operate as a substantial barrier to the full recognition of the legal and constitutional claims of Australia's indigenous peoples. So long as the Court engages in various fictions, including an alleged powerlessness to do anything to rectify the injustices that it actively participated in (in spite of Brennan's assertions to the contrary ), then there will be a barrier. I think the reasons why these barriers exist are partly due to public policy considerations and also to the substantial influence that the doctrine of "Parliamentary Sovereignty" holds on the High Court. Brennan J's Mabo judgement stands as a testament to the judicial stupidity overwhelming parts of the High Court (his official portrait has him holding the common law report in which the judgement was made - immortalising the contradictory effortt therein). While Mabo is very important in that Brennan documents quite thoroughly how incorrect terra nullius as a doctrine was , the stupidity arises in the seeming blindness to the fact that the same reasoning could apply to the radical title. When this is coupled with Kirby's assumptions - one can see more clearly that the Court obviously believes that in spite of its role in the constitution as an interpreter of the constitution, that in spite of the many avenues that can go towards achieving justice to the indigenous peoples of this country, it can only award land that is vacant and mainly unused so that the primitives can engage in their nomadic lifestyle. Yet as I hope to point out, Kirby's last sentence, that "a foundation must be found within the Australian legal system" offers some real hope (given a more assertive Court) to the legal and constitutional claims of the indigenous peoples in overcoming the barriers.
THE ENFORCEABILITY OF NATIVE TITLE IS ONLY AS APPLICABLE LAW OR STATUTE PROVIDES
It seems apparent that Native Title is subject to statute law. In Mabo, the majority ruled that native title could be extinguished if there was a clear and plain intention to do so . However when Kirby uses the words "applicable law" - one would assume that this includes interpretations of the constitution. Section 51 (xxvi) of the Australian Constitution states that the federal parliament has the power to make laws for the:
"people of any race, for whom it is deemed necessary to make special laws"
Prior to 1967 this particular subsection excluded the "aboriginal race in any state" . Brennan J rightly pointed out in the Tasmanian Dam Case that "No doubt par (xxvi) in its original form was thought to authorise the making of laws discriminating adversely against particular racial groups." Brennan J however went on to write that the 1967 amendment "was an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end and that the primary object of the power is beneficial." Deane J also wrote that since the referendum the power in s 51 (xxvi) "has included a power to make laws benefiting the people of the Aboriginal race." Dawson J has since twisted the meaning of Deane's judgement in the case , that s 51(xxvi) "remains a general power to pass laws discriminating against or benefiting the people of any race." The two sentences in Deane's judgement makes it obvious to me that he intended the power in s 51 (xxvi) to only benefit the Aboriginal peoples and that the prior sentence was referring to the pre 1967 condition that still applies except to the indigenous peoples.
In Kartinyeri v Commonwealth , the issue regarding subsection 26 arose again. Gummow and Hayne ruled that the subsection allowed the Commonwealth to pass racially discriminatory laws, though not if it is a manifest abuse of the power . However, Kirby in his judgement wrote that since the effect of subsection 26 was ambiguous, there should be a strong presumption that "the Constitution, adopted and accepted by the people of Australia for their government, is not intended to violate fundamental human rights and human dignity". On this reading, the subsection would not allow for a law that is not for the benefit of the indigenous people.
If a majority of the High Court were to rule that the Government could not pass laws that were racially discriminatory against indigenous people, then Native Title rights as stated under the common law would not be able to be extinguished. Furthermore, one could argue that on this reading, the parliament could not take away the rights indigenous people have accumulated. For example, if legislation was passed in 1993 for the benefit of Aboriginal people and in 1999 a new parliament were to take those rights away, then section 51(xxvi) would halt that. I suspect this reasoning would not at the moment get a very receptive response from parts of the High Court (those that hold parliamentary sovereignty to be supreme) because the 1996 legislation would bind any future governments to the acts of past governments . However, since the Constitution of Australia is more significant than the parliament, I believe the High Court has a right to do such a thing. Strictly reading section 51 (xxvi) as to the benefit of the Aboriginal peoples would not allow a federal parliament to ever take away what the courts have given, nor would it allow a federal parliament to take away any benefits or agreements (treaties) signed for the benefit of indigenous peoples.
Interestingly enough, Kirby's use of an international standard, such as human rights, into places where the constitution is ambiguous marks what seems to be an interesting development. If for example the notion that the foundation of our legal system does not come from parliament, but rather, from the people, then the notion of parliamentary sovereignty is necessarily diminished . For it may be, that when the judiciary considers the basis of a constitution now to be read as gaining its legal authority from the people, then it seems slightly absurd that Sir Edward Coke's notion that parliament "is so transcendent and absolute that it can't be confined either for causes or persons within any bounds" would prevail. Furthermore, the constitution does confine the powers of the parliament and from the Constitution, it can be seen that the indigenous people may have protection so that they do have an exception to the absolute nature of that parliamentary sovereignty. So, while Kirby's statement that the source of enforceability of native title in an Australian court is only as 'applicable law or statute provides', this barrier can be overcome with a judiciary willing to interpret parts of the constitution with justice and international human rights in mind.
Why don't the indigenous people of Australia enjoy the inherent powers of a limited sovereignty that has never been extinguished in the legal system?
The answer to this is because parliament and the courts engage in fictions to deny these rights. In the introduction, I noted rather cruelly that Brennan's decision in Mabo was an exercise in judicial stupidity. This harsh assessment has come because there seems to be an unwillingness to engage in a full moral and legal understanding of the dispossession that took place. Quite simply, Brennan J very clearly set out how wrong terra nullius was as a doctrine, but only applied it to the grant of beneficial interest. In Canada for example, terra nullius has been overturned not only for beneficial interest but in respect of sovereignty. Macklem and Asch wrote an article "Aboriginal Rights and Canadian Sovereignty" in which they assumed that indigenous people had sovereign powers before the arrival of the Europeans. They concluded that
"Brennan J. Offers a passionate and persuasive critique of the injustice of the principles that the Crown became the absolute beneficial owner of all land at the moment of the assertion of Crown sovereignty. In his view 'judged by any civilised standard, such a law is unjust.' Equally unjust, however, and for the same reasons as those offered by Brennan J., is the principle that the Crown acquires sovereignty over territory inhabited by an indigenous population by the mere act of settlement."
The fundamental difference of course between finding that sovereignty be applied to the same standard as that of land is the question firstly of whether the High Court even has the authority to take this into consideration, and secondly, the implications of such a finding. When looking at the Kirby quote "This Court, established by the Constitution, operates within the Australian legal system", one cannot help but think that this refers to the fact that the constitution gives the High Court its authority, and since it has that authority, it cannot undermine the sovereignty contained within that constitution. However, if the court found that there was no absolute beneficial owner of the land, then could it not similarly find that the same thing happened with respect to the radical title? This would not necessarily undermine the role of the court within the constitution, nor the constitution itself. Like freehold is free from native title claims, so would all exercises of sovereignty the various parliaments have taken. The problem for the Court would be therefore, to determine what sovereignty was taken and whether there is any scope left for some sort of rights for Aboriginal governance. However, If Canadian jurisprudence was able to find an accommodation, can't Australia ?
Another problem could be that the authorities never expressly asserted sovereignty over the indigenous people because they didn't exist - That is, Australia, as far as the Crown was concerned was deserted. In a very interesting book "Aboriginal Sovereignty", there is a substantial documentation that seems to lead to the conclusion that Aboriginal sovereignty had existed and that even the colonial officers had known that. For example, in 1835, an example was given of James Stephen who wrote:
"H.M. is to fix the boundaries of the Province. How this is to be done in a terra incognito I cannot imagine, nor how it can be done at all with any due regard to the rights of the present Proprietors of the Soil or rulers of the country."
This particular statement was in response to the Crown embracing sovereignty in places it had not even been to. That the history of this country is littered with similar examples of total disregard for the indigenous people could open up a huge compensation claim for sovereignty that had no legal basis. The problem for the Court is coming to terms with the total disregard. As is documented in the "indispensable" Australian Constitutional Law & Theory materials, The United States has a number of treaties with the original inhabitants. In the case United States v Wheeler (1978) , Stewart J wrote:
"Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status."
Since there have been no treaties signed with our indigenous peoples, there would be a question of how to determine how much sovereignty the Crown really does possess in light of a High Court decision finding Aboriginal Sovereignty. Since the land was terra nullius, there could technically be no reference to the indigenous peoples in regards to the annexation of sovereignty (hence, did the Crown ever 'clearly' take away any sovereignty at all?). However, once the Common Law recognises that sovereignty did exist, then technically, terra nullius as a doctrine did not occur, and by Common Law reasoning, indigenous sovereignty always existed, and just like beneficial title, was taken away piece meal. Also to note that in United States v Wheeler, Justice Stewart held that Congress could take away if it was made clear (similar to the "clear and plain" intention formulation). Yet in the same judgement he wrote that:
"The powers of Indian tribes are, "inherent powers of a limited sovereignty which has never been extinguished." "
This "inherent" power may not be so easily extinguished by congress , and similarly for Australia (especially if in the future, section 51 (xxvi) were read as "only for the benefit of" the indigenous people), once sovereignty is recognised, then no parliament could ever extinguish it unless by further consultation with indigenous peoples. In Australia therefore, given a recognition of sovereignty by the courts, coupled with a Kirby like reading of section 51 (xxvi), the basis of Aboriginal sovereignty would be far stronger than that of the USA.
The task would therefore be for the High Court to set out guidelines similar to those set out in Brennan J's Mabo decision (as to what the Common Law holds). The criteria for assessing sovereignty, and the sheer scope of the areas such a guideline would cover, not only in respect of land, but of criminal law, taxation law and so on, makes it in a way, understandable why the High Court would prefer to avoid the question (parliamentary supremacy being the faithful catch cry) and cling to the simplicity of the current situation. If the judiciary believes the constitution will be undermined by a recognition of limited Aboriginal sovereignty, then it continues to engage in the simplicity of the sovereignty doctrine engaged by the "settlers" - they continue to be part of the injustice.
OVERCOMING THE BARRIER
This essay has noted the assumptions acting as a barrier to the full recognition of the legal and constitutional claims of Australia's indigenous peoples. It has suggested two main ways in which to overcome the assumption
a) Applying a strict interpretation of section 51 (xxvi) as being only for the benefit of the Aboriginal peoples (and that all federal legislation made with respect to Aboriginal people come within that power).
b) Extending the scope of Mabo to include a recognition that Aboriginal sovereignty also survived the "settlement" of Australia (not just native title). This would cause a number of complications, which, in a complicated and sophisticated world are not beyond resolution.
The unlikeliness of both of these steps in the current political climate, and the unlikeliness of the Federal Government to come to some sort of treaty arrangement still does not mean they are not possibilities in the future. In many ways, the excitement of the Mabo decision has died down. Currently, we are not even on par with the Americans in the mid 1800s when it comes to recognising the true nature of indigenous constitutitonal rights. And while it is true that Mabo made a very important step, it also engaged in cementing the legal fiction that was "settlement" by not even questioning the Crown's act of acquiring sovereignty. In the opening of Kirby's Wik decision he writes:
"Although the indigenous inhabitants of Australia "had neither ceded their lands to the Crown nor suffered them to be taken as the spoils of conquest"[564], their legal interests in, and in relation to, the annexed land were considered to be extinguished... From the point of view of legal theory, it had a unifying simplicity to commend it."
It sill appears that when it comes to coming to terms with the more substantive issue of the constitutional claims of the indigenous people, the High Court still applies methods of "unifying simplicity" .
CONCLUSION
The High Court, with its ability to interpret the constitution and to regulate and rule out statutes that are not within constitutional power can legitimately within the Australian legal system come to find legal rights. The Australian Constitution was not undermined when Mabo heralded the recognition of native title, albeit limited to cases where it had not already been extinguished. While the issue of sovereignty is far more complex, the High Court can similarly and within its constitutional power, rule to introduce a limited form of sovereignty as a direct result of the implications in the Mabo decision. The Constitution, if it is to be seen as deriving from the Australian people, as I think it now does, must not continue in the injustice perpetrated on the indigenous peoples for over 200 years. As Macklem points out:
"Just as it is unjust to deny the validity of Aboriginal rights with respect to land based on the fallacy of European superiority, it is also unjust to deny the validity of Aboriginal rights of governance on the same fallacy."
Coupling these rights, with section 51 (xxvi) being read only to the benefit of the Aboriginal peoples would force a government unwilling to negotiate, to come to a full recognition of the legal and constitutional claims of Australia's indigenous peoples. Of course, putting too much emphasis on the courts to 'force the hand of the government' may seem to many people to be an example of the High Court exceeding its authority and acting in a radical manner. If this 'radical' behaviour aids in bringing to closure over 200 years of legal fiction regarding the true stance of indigenous people - that their sovereignty did not exist, that the Crown had the right to take away the legal and constitutional claims of Australia's indigenous peoples - then that is not a radical court: that is a court that acts and delivers in accordance to justice. Perhaps justice is after all, a fairy tale concept that can only happen in fairy tale movies , in which case, one would be pessimistic as to the barrier ever being overcome.