by Cheryl Saunders
© all rights reserved
Until 1992, the law accepted that Australia was terra nullius when the First Fleet arrived and as the colonies were established. The Australian colonies therefore were “settled” rather than “conquered” or “ceded” to the Crown by pre-existing communities, through treaties or other arrangements. The Crown acquired not only sovereignty, but proprietorship of the land itself. The common law and British statutes applied throughout the colonies, to the extent that was applicable to their circumstances. Under this regime, there was no place for Aboriginal title to land or other aspects of Aboriginal customary law.
In Mabo v Queensland, the High Court told what Henry Reynolds describes as a “new story”. Aboriginal title might, after all, have survived white settlement. In the circumstances of the Murray Islands, it had done so. The sovereignty of the Crown was unquestioned but the “radical title” to land thus acquired, did not, of itself, disturb existing interests. If it wished, the Sovereign could acquire or confer proprietary interests in land, which could override existing interests in the absence of any constitutional constraints. Unless and until that happened, however, native title would be recognised by Australian law, if its existence could be established.
In Aboriginal Sovereignty, Henry Reynolds sets out to explore the further implications of Mabo for the status of the Aboriginal and Torres Strait Islander peoples of Australia and for the recognition of their customary laws. Mabo effectively disposes of terra nullius, by recognising native title to land. The questions Reynolds therefore asks are these. Did Australia’s indigenous peoples have sovereignty after all, in a relevant sense? If not, how can that be reconciled with Mabo? If so, when, how and on what basis did the British Crown acquire sovereignty? Did the “very act of planting the British standard on the top of a hill” 1 nullify indigenous law in the interior of the continent, which might not see the newcomers for another 100 years? Was the acquisition of sovereignty by the British Crown necessarily inconsistent with Aboriginal customary law in any event, especially between the indigenous peoples themselves? And finally, what should now be the relationship between the indigenous and non-indigenous peoples of Australia?
Sovereignty is an unreliable term in any context, made all the more dangerous by its emotive appeal. Even in Britain, Blackstone’s prototype of sovereignty as “supreme, irresistible, absolute, uncontrolled authority” 2 exercised by the Queen in Parliament, has been undermined by the growth of democracy, forcing an expedient separation between its legal and political forms. In Australia, where federalism requires a division of powers between two levels of government within the framework of an overriding and entrenched Constitution, sovereignty in its absolute sense has never been useful for descriptive or analytical purposes. The rise and rise of international law has added another complication, in the form of a distinction between external sovereignty, presenting a solid front to other states and internal sovereignty, which may be significantly fragmented.
Aboriginal Sovereignty gives a practical illustration of the problem. For a good many of Reynolds sources, the main difference between a conquered or ceded colony on the one hand and a settled colony on the other was the presence of pre-existing inhabitants with sovereignty. Identifying sovereignty was another matter. The book chronicles the wide range of indicators used over time for determining whether sovereignty existed or not; mostly, in the case of Australia, for denying it. Thus sovereignty variously was claimed to require a capacity for law to be enforced; a community of minimum (but unspecified) size and strength; fixed abode and territorial organisation; a form of government; authority to which a community gave habitual obedience. There were also questions, of course, about the standards by which each of these criteria were judged and the capacity of the newcomers to apply them.
In the end, it is hard to resist the conclusion that references to sovereignty merely blur the real state of affairs. As far as the past is concerned, Reynolds task has been to strip the layers away and to try to identify the principles actually used and practices followed. He has done it well, but he should not have to keep doing it. For the future, references to sovereignty might best be avoided altogether. Proposals cast in terms of Aboriginal sovereignty, for example, potentially cover the entire field from an indigenous Aboriginal state to what Reynolds calls “some form of self-government”. In an already highly-charged climate of opinion, we are likely to get further by being more precise about what we mean.
Debate on the relationship between the indigenous and non-indigenous peoples of Australia has both a political and legal dimension. Three points emerge from this book which are undoubtedly important for the former and potentially important for the latter.
The first is that the view of Australia as terra nullius, on the grounds that its indigenous peoples lacked the requisite attributes of sovereignty or political organisation, was not consistently held. While the conclusion that Australia was “practically unoccupied without settled inhabitants or settled law” prevailed in the Privy Council in 1889 3 and had received prior support, there were other legal and extra-legal sources which recognised the existence of Aboriginal customary law and resisted, at least for a time, the notion that inherited law should interfere with relations between the indigenous peoples themselves. Reynolds quotes, for example, the conclusion of a South Australian Grand Jury in 1847 that the “Native tribes” seemed to be “in a situation to make laws and to adopt usages for their own protection and Government”. He argues, convincingly, that views on this question resemble a pendulum which swung from realism in the early nineteenth century towards rejection of Aboriginal sovereignty in the late nineteenth and early twentieth centuries back to a greater understanding of the political organisation of indigenous communities in the late twentieth century, through international law, which eventually influenced the common law itself.
Secondly, Reynolds shows that the distinction between conquered, ceded and settled colonies was less neat in practice and relied more on expediency than theoretical formulations admit. This chimes with a parallel argument, that the common law has historically been very flexible indeed in its ability to accommodate custom. He is clearly drawn to the framework of legal principle now settled in the United States, which acknowledges the Indian communities as “domestic dependent nations”, with rights to self-government. The glimpses which the book gives of the relationship between the common law and other legal systems in colonies as diverse as Canada, India, Penang, New Zealand and Borneo are useful as well, however, and assist to put Australian developments in broader persepective.
Thirdly, Reynolds argues that the rules of international law of earlier centuries, from which the common law classification of colonies was derived, were developed for the convenience of the competing European powers. Their frame of reference inevitably was bounded by European experience and cultural understandings. The move from these standards to a more pluralistic and comprehensive view of government and law is one of the most important achievements of the latter half of the 20th century, coinciding with the development of a more genuinely world community.
Reynolds’ book ends with a challenge. Other countries increasingly recognise a distinction between nation and state. Australia tends to have avoided that debate so far, through the accidents of its own legal history. Recognition of the distinctive law and culture of the indigenous peoples of Australia is on the agenda now, however, through internal and external pressures as well as the doctrinal shift which Mabo represents.
In fact Australia’s political and legal culture, influenced by federalism, may be more receptive than is generally supposed to legal pluralism through other forms of intergovernmental arrangements. Reynolds’ arguments about the past are important. They shake established assumptions. They encourage a fresh look at the present. They suggest the direction in which the rest of the world is moving and in which Australia’s future is likely to lie. The challenge is to move on from here to a resolution which is appropriate, mutually acceptable and workable in practice.
Cheryl Saunders is the Director of the Centre for Comparative Constitutional Studies at the University of Melbourne. Aboriginal Sovereignty is published by Allen and Unwin.
See further discussion of these issues by Henry Reynolds, Bain Attwood, Rosemary Hunter and contribute to the ongoing exchange of opinion in After Mabo.
See also responses to the Wik decision by both Peter Read and Tom Griffiths.
Notes and References