Module 10 Indigenous Australian people and the Constitution Bede Harris

Indigenous Australians and the Constitution Indigenous people referred to, or specifically affected by: Section 25 (members of races disqualified from voting in State lower houses not counted); Section 41 (impliedly reserves right of States to disenfranchise on grounds of race); Section 51(xxvi) (races power – can be used adversely Kartinyeri v Commonwealth (1998) 195 CLR 337); and Section 127 (Indigenous people not counted repealed 1967)

1967 Referendum Section 51(xxvi) concerned the division of powers between the States and the Commonwealth and originally provided: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: "(xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;" Section 127 provided: “in reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted”.

Indigenous people relationship with the State Reflection of certain aspects of the Australian federal system Indigenous Australian people seen as a dying race Focus on mechanisms for allocation of votes and division of legislative power rather than protection or enhancement of human rights Residual legislative power of States.

Native Title Native title was recognized in Australia through a process that occurred entirely without amendment of the Constitution – purely a doctrine of common law of property Milirrpum v Nabalco Pty Ltd (Gove Land Rights Case) (1971) 17 FLR 141 Mabo v Queensland (No 2) (1992) 175 CLR 1 Wik Peoples v Queensland (1996) 187 CLR 1

Acquisition of sovereignty can be by settlement of terra nullius, conquest or cession. If by settlement, the settling power’s law applies. If by conquest or cession, existing society’s laws remain in force until modified. Mabo (No 2) contains a paradox: said Australia not terra nullius and that Indigenous title survived – but maintained that acquisition was by settlement in all other respects – ie no Indigenous law survived.

In Coe v Commonwealth (No 2) (1993) 118 ALR 193, Walker v New South Wales (1994) 82 CLR 145 and Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, HC confirmed that Indigenous sovereignty and Indigenous law were extinguished upon colonisation. So really, Australia was acquired by conquest, notwithstanding that the cases maintain it was by settlement, as settlement applies only to terra nullius.

Native Title Act 1995 (Cth)  When the Native Title Act 1993(Cth) was amended in 1998, the amendments included a list of the different types of land titles that Governments believe extinguish native title: includes some past acts includes previous exclusive possession acts, which are acts done on or before 23 December 1996 Such acts completely extinguish all native title rights and interests for an area

Indigenous recognition 1967 constitutional amendment only allowed the Commonwealth to exercise concurrent power over Indigenous Australia People process of full empowerment is still incomplete 2012 Expert Panel recommended repeal of ss 25, 41 and re-draft of 51(xxvi). Current proposals talk of Indigenous recognition (a term which potentially masks the need for substantive change in Indigenous rights). 4 important areas: Sovereignty, Treaty, Rights, Voice to Parliament

(i) Sovereignty Sovereignty argument frequently advanced, but reality is that on Kelsinian analysis, the Crown’s acquisition of sovereignty was effective and therefore valid. Contrast with New Zealand and the USA, where residual, unextinguished sovereignty exists – uncertain in scope in NZ but arguable under Treaty of Waitangi, undoubted in USA. Yet, that would not prevent sovereignty being delegated to Indigenous people anew, albeit as an act of the received sovereignty

(ii) Treaty Arguments about treaties often confused. Two erroneous beliefs: a treaty = proof of sovereignty a treaty in itself will change the law. Treaty = just another word for agreement, not confined to international sphere, can be entered into between groups within a country with a single sovereignty – eg Canada.

Treaties can play a positive role in promoting economic development and tackling social problems in Indigenous communities.  BUT a treaty is an agreement entered into by the executive – useless unless enacted into law by Parliament. We need to be careful of symbolism. So if a treaty or treaties are to be negotiated with Indigenous peoples, it is critical that they be swiftly followed by legislation putting them into effect.

A modern treaty-making process, especially in a federation like Australia, will require the resolution of a range of technical and procedural issues.  These include: Who will be parties to the negotiations – Commonwealth? States? A national treaty for all Indigenous people or multiple treaties? What processes will be adopted? Will there by an umpire and enforceable rules while the parties are negotiating? What legal effect will the outcome have? How will it all be financed?

Some progress has been made at State level: The Noongar (Koorah, Nitja, Boordahwan) (past, present and future) Recognition Act 2016 (WA) recognises the Noongar people as the traditional owners of the south west region of Western Australia. First Act to include the Noongar language. Some regard this as the first treaty between a government and Indigenous people. 

Self-determination as part of a treaty United Nations Declaration on the Rights of Indigenous Peoples- adopted by the United Nations General Assembly on 13 September 2007 Australia was one of 4 of the 143 Member States that voted against it 3 April 2009- then Prime Minster Kevin Rudd reversed Australia’s position and indicated support for the Declaration. Article3 protects self-determination, Article 4 realisation of that right requires autonomy.

Mechanisms for self-determination could be territorial and / or based on theory of consociationalism. Developed by political scientist Arendt Lijphart – concept of segmental autonomy to preserve ethnic autonomy within mixed societies. Recognition of Indigenous law? Legislation would require some mechanism for conflict of laws – common in societies acknowledging legal pluralism.

(iii) Constitutional rights 2012 Expert Panel recommended inclusion of a right not to be discriminated against on grounds of race, colour, nationality or ethnic origin, subject to Parliament having the power to make laws to remedy past disadvantage or protect the culture of any group – important protection against other powers being used adversely (even if re-drafted s 51(xxvi) was restricted to beneficial use). Attracted vehement opposition from conservatives. Affirmative action clause has enormous potential for advancement if coupled with a right to culture:

19(2) of the Victorian Charter of Human Rights and Responsibilities 2006 (Vic). Protects rights of Indigenous people (a) to enjoy their identity and culture; and (b) to maintain and use their language; and (c) to maintain their kinship ties; and (d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

(iv) Voice to Parliament Uluru Statement from the Heart recommended that an elected body representing Indigenous people be established to be a ‘voice to Parliament’. Government rejected the proposal as amounting to a ‘third house of Parliament’ – yet the proposed body would have no legislative capacity – only advisory on impact of legislation on Indigenous people. Parliamentary committee is currently considering how such a body could be established.