Indigenous Peoples and the Question of Sovereignty
This topic is within Principles of Public Law.
Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 152-160 (Chapter 4, sections 1-3 to end of long extract on 160); 168 (eight lines from bottom) - 173 (end of extract in middle of page); 178-198 (section 4).
Indigenous Peoples and the Constitution
- This section was inserted mainly to protect the voting rights of the women of WA.
- However, since at this time (before Federation) the indigenous peoples were allowed to vote in all State elections bar QLD and WA, s 41 granted them the ability to vote for Parliament.
The Commonwealth Franchise Act 1902 (Cth)
s 4 of this act specifically denied Aboriginal voting rights, unless so entitled by s 41 of the Constitution. Soon after, Robert Garran established that s 41 was merely a ‘transitional provision’.
- This meant that s 41 was exhausted as soon as the Franchise Act was passed.
- In other words, only those aboriginals who got put on the electoral roll in 1901 and before 1902 gained the right to vote.
- New aboriginals who did not acquire the right to vote in 1901 could not vote for Commonwealth elections even if they could vote for State elections.
- This view was accepted by the High Court in R v Pearson; Ex parte Sipka.
Commonwealth Electoral Act 1962 (Cth)
This act allowed for complete federal voting rights for all aboriginal peoples. It was the Biggest ‘yes’ vote in Australian history. However, true equality came with the Commonwealth Electoral Legislation Amendment Act 1983 (Cth), which made voting compulsory for all indigenous peoples.
- Some say that this is what brought racial equality to the electoral system.
- There is now no longer a mention of ‘Aboriginal natives’ in Commonwealth electoral legislation.
 The original Constitution made two specific mentions of the indigenous people:
- s 51(xxvi): Commonwealth Parliament can make laws with respect to 'the people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws'.
- s 127: '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'.
However, this was changed at the 1967 referendum which removed any mention of indigenous peoples from the Constitution. The amendment:
- Crossed out the words 'other than the aboriginal race in any state' from s 51 (xxvi).
- Repealed s 127 altogether.
It should be noted that s 25 of the Constitution, which lowers the population count of a State if that State disqualifies members of a particular race from voting in a Commonwealth election, was left untouched by the 1967 referendum.
- Whilst this does means that a State will be penalising itself by way of restricting its potential representation in Parliament if it was to disqualify people on racial grounds, it at the same time tacitly implies that the Indigenous peoples can be so disqualified from the franchise.
Mabo (No 2)
- Rejected the concept that Australia was Terra Nullius (an unsettled land) when the British first arrived.
- Upon arrival, the Crown did not assume Full Beneficial Ownership, whereby the Crown would own everything absolutely. Instead, it had acquired Radical Title.
- Radical Title: Crown is sovereign, but recognises previous law systems (Native Title) where they haven’t been extinguished by the new sovereign.
- Native Title: indigenous people retain sovereignty when:
- They can prove a continuous connection to the land through traditional customs,
- This title hasn’t been extinguished or modified by subsequent legislation.
Thus, Native Title and rights which it gave were unaffected by the Crown's acquisition of sovereignty and radical title. However, the acquisition of sovereignty means that native title can be extinguished by a valid exercise of the government which is inconsistent with the continued right to enjoy native title.
The judgment, in particular, that of Brennan J, invoked Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights, and is more consistent with both historical reality and international recognition of native titles at the time (Sahara desert indigenous people). However, it raised several issues:
- The shift from Full Beneficial Ownership to Radical Title is problematic:
- ‘Settled’ colonies (as Australia has been declared) are linked with Full Beneficial Ownership, but now the Crown only enjoyed Radical Title, which is associated with ‘conquered’ colonies.
- The court did not wish to undermine its own legal system, and all of the decisions in which the High Court upheld that Australia was a ‘settled’ colony.
- Instead, they simply ‘assimilated’ the rules of a ‘conquered colony’ into those of a settled colony.
- This ruling was completely contrary to previous rulings on similar issues and against primary assumptions of the Australian legal system.
- Indigenous sovereignty contests the validity of the Australian Constitution (did the British have the legal authority to pass it?)
- Now there is a third source of law (traditional indigenous law).
- Could be hard to reconcile with statute and common law.
- The shift from Full Beneficial Ownership to Radical Title is problematic:
After Mabo, Native Title was made statutory through the Native Title Act 1993 (Cth) (note - this links you to the act as it was originally enacted).
There is a requirement that Native Title can only exist when the indigenous people can prove a sustained connection to their land through the observance of traditional law and custom. This issue was strongly reiterated in Yorta Yorta Aboriginal Community v Victoria:
- ‘before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs.’
- Thus, no Native Title.
The indigenous people appealed to the High Court - Members of the Yorta Yorta Aboriginal Community v Victoria, but were rejected again. Meanwhile, amendments were made to the Native Title Act (Cth) (up-to-date act):
- Native Title is not a creature of the common law – it is not defined by Mabo anymore, but through the Native Title Act 1993 (Cth)
- s 223(1), of the Native Title Act 1993 (Cth) requires an inquiry whether the laws and customs now observed are the same as the laws and customs observed before the Crown’s arrival – whether the laws and customs can be described as traditional laws and customs.
- The only native title rights which are now recognised are those that existed at the time of change in sovereignty. Whilst these rights survived, any new arising rights or interests would find their roots in the legal order of the new sovereign power.
- 'It must be shown that the society, under whose laws and customs the native title rights are said to be possessed, has continued to exist throughout the period…'
- 'The findings we have identified are...that the forebears of the claimants have ceased to occupy their lands in accordance with traditional laws and customs, and that there was no evidence that they continued to acknowledge and observe those laws and customs. Upon these findings, the claimants must fail'.
Sovereignty and Self-Determination
 After the partial recognition of indigenous rights in Mabo, the indigenous people of Australia have attempted to push towards indigenous ‘sovereignty’. These attempts were rebuffed by the courts in two prolific cases:
- 'The Aboriginal people are subject to the laws of the Commonwealth… They have no legislative, executive or judicial organs by which sovereignty might be exercised…the contention that there is in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible to maintain in law '.
- The decision of Mabo (No 2) rejects the notion that any the indigenous have sovereignty which is adverse to the Crown’s, or that they are a ‘domestic and dependant nation’ which is entitled to self government and full rights.
- 'The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever'.
- 'The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected'.
- Mabo (No 2) does not specify that the Parliaments of the States or the Commonwealth lack the power to legislate for the indigenous people, or that the legislation is subject to the consent or adoption by those people.
- Furthermore, 'Australian criminal law does not accommodate an alternative body of law operating alongside it'. It is the basic principle of the common law that all people should stand equal before the law. 'A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle'.
As per these decisions, it seems unlikely that the independent sovereignty of the indigenous people will be recognised by the courts in Australia. However, it should be noted that the judgments relied on to formulate these decisions is flawed after Mabo (No 2):
- Above two cases relied on the assumption that the indigenous people in Australia are of one homogenous race – 'The Aboriginal people of Australia'.
- Judgment in Mabo (No 2) revealed that this concept of a single homogenous group is a historical fiction.
- According to international law, Australia’s indigenous peoples have (separately) cultural identities that will entitle them to self-determination.
By virtue of Article 1 of the International Covenant on Civil and Political Rights, 'All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development'.
It has been recognised that this right to self-determination is particularly relevant to indigenous people, though with qualifications. This recognition was enshrined in the United Nations Declaration on the Rights of Indigenous Peoples 2007. However, this declaration is not a binding statement of international law – it is an unenforceable declaration of values by the UN General Assembly.
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Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)