Indigenous consent and native title

By Stephen W. Robson[1]

This paper relates the research carried out for a thesis on indigenous consent and native title. The thesis focus began to crystallise in the latter part of 2000, a time when the ten-year endeavour of the Council for Aboriginal Reconciliation was coming to a close. As a legacy the Council launched the Australian Declaration Towards Reconciliation at the end of May.[2] In the months following, hundreds of thousands of indigenous and non-indigenous Australians came together in one city after another to embrace the call. As will be established in this paper, these events are closely entwined with a focus on indigenous consent and native title.

This paper is divided into three parts; with the first comprising a brief introduction to the theory about consent and common law. In the second part the focus shifts specifically to Australia and the indigenous claims. This is followed by an explanation of how these challenge several long-held assumptions about governance. The last part of the paper focuses on three examples from the research: consent, the right-to-negotiate provisions and compensation.

Six types of claims

The theoretical frame adopted for this study is James Tully’s Strange multiplicity: constitutionalism in an age of cultural diversity. Tully begins by considering claims for cultural recognition and identifies six different forms. The most familiar form is that of the nationalist movements seeking constitutional recognition as either independent states or as autonomous political associations within various multinational federations and confederations. From without, the existing states are also pressed to accommodate supra-national associations with powerful cultural dimensions (eg European Union, North American Free Trade Agreement, GATT, WTO). Between these are the long-standing, and unmet, claims of linguistic and ethnic minorities.

Cutting across these three forms are the voices of citizens, immigrants, exiles and refugees seeking recognition and protection of their cultures. Another set of claims is those made by the feminist movement and directed at the movements already mentioned as well as across their struggles. The sixth form comprises the demands of Aboriginal and indigenous peoples for recognition and accommodation of their diverse cultures, governments and practices.[3]

Common features

 Tully identifies three common features to these claims. Firstly, demands for cultural recognition represent aspirations for appropriate forms of self-government. The forms of self-rule appropriate to the recognition of a culture will vary. Some strive for their own political institutions. Others seek to participate in existing institutions in ways that recognise and affirm their culturally diverse way of thinking, speaking and acting.

The second similarity is that the basic laws and institutions of modern societies, and their authoritative traditions of interpretation are unjust in so far as they thwart the forms of self-government appropriate to the recognition of cultural diversity. The sovereignty of the people is in some way denied and suppressed, rather than affirmed and expressed, in the existing constitutional forms, thereby rendering unfair the daily politics that the constitution enframes. A constitution should be an expression of popular sovereignty, but can become an imperial yoke, causing dissention and resistance, and requiring constitutional amendment before they can consent.

The third similarity is the assumption that culture is an irreducible and constitutive aspect of politics. That is, the diverse ways in which people think about, speak, act and relate to others in participating in a constitutional association are always to some extent the expression of their different cultures. Constitutions can seek to impose one cultural practice, or it can recognise a diversity of cultural ways of participating. Importantly though a constitution cannot eliminate, overcome, or transcend, this cultural dimension of politics.[4]

Western constitutionalism

A significant part of Tully’s work is a historical study of constitutionalism where he contrasts uniformity to cultural diversity. He finds that Western constitutionalism exhibits not one, but two, languages. The dominant language is associated with the Western modernist tradition. However, hidden in its shadow is a second language that is able to recognise cultural diversity.

Significantly for Australia, the latter includes the common law tradition applied here and in several other Commonwealth countries.[5] Common law’s three principles are mutual recognition, continuity and consent.[6] Consent is usually understood to denote an agreement, either verbal or written, between individuals or groups of people and given freely, that is in the absence of duress or deception.[7]

PART II

The claims

With the second part of this paper the focus shifts specifically to Australia and a brief review of the claims. Over the past few decades several initiatives have been made for a treaty between indigenous and non-indigenous people. In 1979, for instance, Dr H.C. (Nugget) Coombs launched a treaty and the Aboriginal Treaty Committee was formed to coordinate its work. Subsequently, Judith Wright documented the efforts of the campaign in We Call for a Treaty.[8]

            At the time of the Declaration Towards Reconciliation the Aboriginal and Torres Strait Islander Commission (ATSIC) signaled its intention to put a treaty back on Australia’s political agenda. Chair Geoff Clarke told those gathered on the steps of Sydney’s Opera House that the treaty was essential to reconciliation.[9] Crucial had been the failure of the ‘founding fathers’ to recognise the rights of indigenous people in Australia’s constitution. Around the same time Clark was to also make the point that a treaty was just as important as Mabo.[10] Involving indigenous people at the constitutional level would take reconciliation to a new stage. A treaty would acknowledge the influence of indigenous and English traditions in the formation of Australia’s governance. It would be historic in that for the first time indigenous people would consent to the constitutional framework of Australia.

            The public debate over native title also occurred against a background of other far-reaching claims by indigenous spokespeople. For instance, in the context of the republican debate they sought to include references to their custodianship of the country in the Constitution’s preamble.[11] The Council for Aboriginal Reconciliation also called for a new preamble to the Constitution to recognise the status of the first Australians.[12]

            Ten years after Mabo, many indigenous peoples still hold unfulfilled dreams of native title recognition. Several factors have contributed to this state of affairs. One is the slow progress of negotiation. Only thirty claims have been recognised, with almost six hundred “still to be dealt with”.[13] The majority, however, were excluded from gaining recognition through a provision in the 1993 legislation that validated the dispossession occurring between 1788 and 1975.[14] The 1998 amendments to the act placed additional obstacles in the way of indigenous interests.[15]

            Ironically, when the Act was comprehensively amended in 1998, and despite its profound consequences, indigenous opinions had marginal influence on the debate. At the conclusion of the parliamentary debate, the National Indigenous Working Group indicated that they had not been consulted on the contents of the bill, nor did they consent to it in any way that might be construed “as sanction to its passage into Australian law”. The group added that their participation was not given “the legitimacy by the Australian Government that we expected, and we remain disadvantaged and aggrieved by the failure” of the government to “properly integrate our expert counsel into the lawmaking procedures of government”.[16]

            Another claim is for the allocation of special seats in Parliament. The idea was raised by ATSIC in a submission to the United Nation’s Working Group on Indigenous Populations in July 2000.[17] Furthermore, the Stolen Generations inquiry generated a comprehensive set of recommendations to the federal Government. The unwillingness of the government to adopt many of these has seen frustration and calls for change.[18]

Assumptions of governance

            These claims are interlinked by a desire to move Australia beyond a mono-cultural legacy. They amount to a systematic and comprehensive move to enshrine a place for indigenous people in Australia's governing structures. Their breadth encompasses philosophical, political and constitutional changes. The principles underpinning the claims also represent challenges to three long-standing assumptions of Australia's governance.

            One of these assumptions is the idea that constitutions should and can transcend culture. Its flip side, that culture is not fundamental to constitutional theory, is associated with modernist views of the state.[19] The absence of any references to indigenous people in Australia's Constitution suggests its drafters held to this assumption.[20] The proposal for special seats for indigenous representatives implies that some seats should be reserved for people of a particular culture. Hence, this represents a direct challenge to the assumption.

            Another assumption challenged is that consent is derived exclusively from the people as a whole. This is based on a view that a government derives a mandate to implement their policies when they gain the support of a majority of representatives at an election. Claims a government is acting in the national interest are also consistent with this assumption. So too is the view that farmers, miners and indigenous people can be characterised as interest groups seeking to influence government decision.[21] Hence, when indigenous representatives assert that their consent is required on native title changes they challenge another modernist constitutional practice.

The third assumption is the idea that the Constitution already provides a just basis for reconciliation and equity.[22] The Howard Government's resistance to constitutional change implies they believe that any shortcomings on reconciliation and equity can be addressed through public policy initiatives. Therefore, implying that the current Constitution is inadequate, as those supporting the call for a treaty do represents a direct challenge to this assumption. These contrary approaches are reflected in the tension between those who conceive reconciliation as a more limited political and economic agenda and those who frame it as a broader constitutional movement.

Together these assumptions have provided the bedrock upon which Australia's constitutional framework was established and has continued now for over one hundred years. However, during the time since Federation Australia has undergone profound change. At the beginning of the twentieth century Australia was considered a monoculture of British subjects and indigenous people were written out of the Constitution.[23] Today, Australia is portrayed as a culturally diverse and independent state.[24]

            This indicates why the political temperature inevitably rises whenever the call for a treaty is placed on to the political agenda.

Focus of study

The focus of the study is to assess the relevance of these assumptions to the debates over the indigenous claims. Is adherence to these assumptions key to understanding the resistance to the claims? Has this adherence reinforced a bias against the idea of a treaty? Is this why some portray a treaty as an unrealistic aspect of reconciliation? And, if Australia’s values have changed so much then don’t these assumptions need to be evaluated to assess their compatibility?

Rather than focus on all the claims, the study has concentrated on the recognition of native title. The over-riding reason is that chronologically Mabo marked a key turning point in law with the adoption of a new doctrine. If there are shortcomings in the new doctrine then this would seem to be the appropriate place to start.

                Another qualification concerns the period examined by the study. Beginning with the 1992 Mabo decision, the examination finishes when the Native Title Amendment Bill was adopted in July 1998. This period was selected since it is the time when the main features of the new doctrine were established.

            A further constraint is that the examination is limited to the High Court and Federal Parliament, Australia’s two pre-eminent institutions of governance. These institutions have a symbiotic relationship with laws made by parliaments taking precedent over common, or judge-made, law. The laws are open to interpretation, however, and can be considered in the light of general principles of common law.[25]

PART III

i. Consent in Mabo

            In the last part of the paper I will draw attention to three aspects of the debate. The first concerns the consent of indigenous people. This was first raised in relation to Australia in 1768. The British Admiralty issued an instruction to Captain Cook: “You are also with the Consent of the Natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain; or if you find the country uninhabited take Possession for His Majesty …as first discoverers and possessors.” In 1837, a House of Commons Select Committee castigated the failure of authorities to observe this idea.[26]

Despite consent being a long-standing convention of common law in Mabo only one judge, Justice Toohey, gave consideration to this matter. He asks whether extinguishment is “exercisable only with the consent of the titleholders (that is, akin to a right of preemption) or is it a power exercisable unilaterally without account of the traditional titleholders’ interests?” He notes that while “most authority” assumes this can be carried out unilaterally there are cases where there is “support for the proposition that consent is required”.[27]

In June 1993 a Commonwealth Government discussion paper addressed the matter of consent. The writers recommended that a qualified consent could provide:

·        Additional protection against compulsory acquisition by governments; and,

·        The special attachment to land could be reflected in enhanced requirements for negotiation.[28]

Nevertheless, by the time of the debate over the Keating Government’s legislation consent had disappeared as a matter of concern.

ii. Right to negotiate

            The second example is the right to negotiate measures. It might be presumed that these provisions reflect an echo of consent. Article 1(4) of the International Convention on the Elimination of all Forms of Racial Discrimination specifies that special measures can be taken to advance “certain racial or ethnic groups or individuals” in order to ensure ‘equal enjoyment” or exercise “human rights and fundamental freedoms”. These are considered temporary and so “they shall not be continued after the objectives for which they were taken have been achieved”.[29]

The 1993 Native Title Act (Cth) specifies that indigenous people can access right-to- negotiate provisions in relation to mining leases and compulsory acquisition for third parties.[30] Foreign Minister Gareth Evans told the Senate that these measures should be characterised as “special” because they are rights “not enjoyed by non-Aboriginal titleholders”.[31] Evans also makes clear that native title itself is not considered a special measure since this is “part of the common law of the land”.[32] So it only makes sense to characterise these as special measures under Article 1(4) if proceeds from the assumption that consent is not essential to common law.

iii. Compensation for extinguishment

            The last example concerns the applicability of compensation if native title is to be extinguished. A majority of the court did not consider it discriminatory to extinguish native title without compensation. A proviso set by Justice Brennan was that “the exercise of a power to extinguish native title must reveal and clear and plain intention to do so”.[33] He believed this to be ‘doing the right thing’ by indigenous people for he notes that the ‘clear and plain intention flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests”.[34] Presumably, his reasoning is that since this power has been validly exercise by the executive or legislature it is not wrongful and therefore does not generate entitlement to compensation. Chief Justice Mason and McHugh shared his rejection of any entitlement to compensation. Justice Dawson also agreed with them, but for different reasons. He didn’t recognise native title and considered it a “form of permissive occupancy”. Hence, in this view compensation for extinguishment could not arise.[35]

            Justices Deane and Gaudron cite s 5 (xxxi) of the Constitution as a “constraint” on the power of the Commonwealth to extinguish native title.[36] This section states that the “acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws”.[37] Since property has generally been given a wide meaning and ‘extends to the acquisition of any interest in any property’ it has been presumed that this could be applied to native title.[38]

            Despite the significant differences between these three judgments they do share an important feature. In all there is an absence of consideration to the impact extinguishment might have on the native titleholders. That is, there is a presumption that the distinct culture of indigenous people is irrelevant to determining this matter. And yet two reasons stand out as to why indigenous culture is relevant. One reason is that the analogy of extinguishing non-indigenous property cannot easily be made. Government acquisition, compensation, followed by the purchase of another property is not a pattern that can be meaningfully translated to native title. Another reason is that extinguishment is in conflict with the central principle of recognising native title. The key aim is not to establish a system to compensate native titleholders. Rather it is so that indigenous people can gain legal recognition for their rights and interests. Hence, it is likely that many indigenous groups will not view compensation as a fair outcome since it does not take into account the uniqueness of their title.

Conclusion

            In conclusion, three points can be made about consent. Firstly, in other countries consent has been seen as central to justice since it underpins agreement by free and independent peoples.[39] This is also why calls for a treaty are embraced - since they are based upon consent. Secondly, consent was marginalised by the High Court in Mabo as well as in the subsequent parliamentary debates. Yet without consent, indigenous people remain liable to be dispossessed at the whim of the Executive, however unjust. Thirdly, it appears that the failure to focus on consent is linked to the deeply held assumptions that a just outcome could be achieved without changing the constitution. The experience of the debate suggests that recognition of native title needs to be addressed as part of a treaty.