Native Title and the Treaty Dialogue
Speech delivered by Dr William Jonas, AM at a seminar hosted by the Aboriginal and Torres Strait Islander Social Justice Commissioner and the International Law Association, 10 September 2002.
I would like to acknowledge the Eora people: the traditional owners and custodians of the land where we meet today.
It is very fitting that we discuss native title in the context of a treaty just one month after a very significant native title decision, the Miriuwung Gajerrong decision , has been handed down by the High Court. 406 pages of honed legal reasoning cut through almost the entire history of non-Indigenous land law in Western Australia to decide the final shape that native title would take for the Miriuwung Gajerrong people.
It took about a week for people interested in this decision to properly formulate their views on its significance and for comments and opinions to filter through the media. One view that intrigued me came, not so much from the inner circle of people working in the area, but rather from the letters of ordinary but concerned citizens. Many simply asked 'What happened to Mabo?'
People weren't asking this question from a legal perspective. They weren't asking; 'How and to what effect did the native title legislation prevail over the common law principles established in the Mabo decision?' What they were asking was "What happened to the spirit of Mabo? What happened to the promise that Mabo held out for a new relationship between Indigenous and non-Indigenous people." And even though these people did not necessarily understand the legal reasoning of the Miriuwung Gajerrong decision, they understood, perhaps intuitively, that Mabo's promise had been broken, and that native title had not delivered a new relationship.
It is perhaps fitting then that we recall, in the context of a treaty dialogue, why the Mabo decision  came to represent the promise of a new relationship between Indigenous and non-Indigenous people in much the same way that a treaty does.
Firstly Mabo overturned terra nullius. It branded it a fiction and a racially discriminatory one at that. This then created space within the common law for the recognition of native title. But it created this space in a particular place; a place also significant to treaty-making. It created it at the foundation of our nation and the political relationship that this foundation was based on; that between Indigenous and non-Indigenous people.
In Mabo the High Court rejected terra nullius as a basis for the foundation of this nation on three grounds;
- Terra nullius
no longer accorded with 'present knowledge and appreciation of the facts'
 with regard to Aboriginal society. The proposition
that Aboriginal people were 'without laws, without sovereign and primitive
in their social organisation'  could not be sustained
in the light of present knowledge about the complex and elaborate system
by which Indigenous society was governed at the time of colonisation.
- Terra nullius
no longer accorded with the values of contemporary society. In particular
terra nullius is a discriminatory denigration of Indigenous society
which was considered 'so low in the scale of social organisation that
their usages and conceptions of rights and duties are not to be reconciled
with the institutions or the legal ideas of civilized society.' 
The notion of equality relied on by the Court to reject terra nullius
was one that recognised and gave equal respect to the distinctive characteristics
of Indigenous society.
- Terra nullius is out of step with modern international law, particularly in relation to the human rights of equality and self-determination. In this regard the Court was influenced by the decision of the International Court of Justice in its Advisory Opinion of Western Sahara (1975) ICJR that rejected terra nullius as the basis for Spanish sovereignty in Western Sahara.
The rejection of terra nullius was a rejection of the assertion that Indigenous people were not socially or politically constituted. The promise of native title was that terra nullius would be replaced, not by another value judgment by non-Indigenous society about Indigenous society, but rather by a recognition of and protection for the system of laws and customs that give Indigenous people their status as a sovereign people. Justice Brennan's judgment suggests as much:
Native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. The ascertainment may present a problem of considerable difficulty It is a problem that did not arise in the case of a settled colony so long as the fictions were maintained that customary rights could not be reconciled 'with the institutions or the legal ideas of civilized society' that there was no law before the arrival of the British colonists in a settled colony and that there was no sovereign law-maker in the territory of a settled colony before sovereignty was acquired by the Crown. 
Mabo also recognised that this distinct identity; and the system of laws on which it was based, was not frozen in time but could evolve, changing in response to circumstances yet nevertheless retaining its characteristic as a distinct social and political system.
When people today ask 'What happened to Mabo?' they are asking what happened to these monumental shifts in thinking that sought, in much the same way a treaty seeks, a new foundation for this nation in an equitable relationship between Indigenous and non-Indigenous people. What most people don't realise is that the failure of the law of native title to achieve this transformation originates in the Mabo decision itself and the concept of sovereignty constructed by it. The Miriuwung Gajerrong decision is but a logical consequence of these beginnings. It is also a response to the Native Title Act which reinforces the common law position.
There is a troubling disjuncture in the reasoning of the High Court in the Mabo decision. On the one hand terra nullius was overturned because it failed to recognise the social and political constitution of Indigenous people. Yet the recognition of native title was premised on the supreme power of the state to the exclusion of any other sovereign people. Confirming the principle in the Seas and Submerged Land case that the 'acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the Courts of that state'  Justice Brennan in Mabo identified the extent of the court's power as merely 'determining the consequences of an acquisition [of sovereignty] under municipal law'.
The assertion in Mabo of supreme and exclusive sovereign power residing in the State has determined the development of native title in two significant ways. First, the characteristics of Indigenous sovereignty, the political, social and economic systems that unite and distinguish Indigenous people as a people, have been erased from native title. Second, and as a consequence, the state's power to extinguish native title is supreme.
First, the failure of the common law to recognise Indigenous people as a people, with sovereign rights.
The failure to conceive of native title in terms of sovereign rights recognised at international law was postulated in Mabo as a result of an inherent limitation of the common law itself. As Brennan said:
There is a distinction between the Crown's title to a colony and the Crown's ownership of land in the colony The acquisition of territory is chiefly the province of international law; the acquisition of property is chiefly the province of the common law. 
By being consigned to the common law, Indigenous people's relationship with the land is constructed as a domestic property right, rather than as political, cultural or sovereign rights.
Special Rapporteur and now chair of the Working Group on Indigenous Populations, Miguel Alfonso Martinez, in his Study on treaties, agreements and other constructive arrangements between States and Indigenous populations,  June 1999, refers to this phenomena as 'the domestication of the indigenous question'.
..that is to say, the process by which the entire problematique was removed from the sphere of international law and placed squarely under the exclusive competence of the internal jurisdiction of the non-indigenous states. In particular, although not exclusively, this applied to everything related to juridical documents already agreed to (or negotiated later) by the original colonizer States and/or their successors and indigenous peoples.
Terra nullius was a particularly brutal method of achieving this end of relegating the rights of Indigenous people to the internal laws of the coloniser. The common law of native title while giving some recognition to Indigenous traditions and customs nevertheless continues this process of domestication.
A construction of native title as a bundle of rights, confirmed in the Miriuwung Gajerrong decision, also reflects the failure of the common law to recognise Indigenous people as a people with a system of laws on which a relationship to land is founded. Native title as a bundle of separate and unrelated rights with no uniting foundation, is a construction which epitomises the disintegration of a culture when its governing essence is neatly extracted from it.
In the Miriuwung Gajerrong decision, the High Court preferred the 'bundle of rights analogy' which, the majority argue, at least provides for the recognition of residual rights once the 'core concept of a right to be asked permission for access and to speak for country' are extinguished. In view of their finding that this 'core concept', something I suggest akin to a sovereign right, is inherently fragile against 'the imposition of a new authority over the land', the recognition of residual rights probably does take on increased importance. The majority put it as follows;
An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have assess to the land was inevitably confined, if not excluded. But because native title is more than the right to be asked for permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of the land. 
It can be seen in the Miruwung Gajerrong decision, as in the Mabo decision, that the construction of native title at common law as an inherently fragile and inferior interest in land, originates form the supreme power of the sovereign state to relegate it to this position. Native title is premised on this relationship of inequity, it does not transcend it.
The practical effect of a construction of native title as a fragile and dispersed bundle of rights is to facilitate its destruction through extinguishment, This then brings me to the second characteristic of supreme sovereign state power, underlying the Mabo decision and the development of native title law.
The power to Extinguish native title
The power of the state to extinguish native title and the continuing exercise of this sovereign power underlies the development of native title at common law. As Brennan stated in Mabo:
Sovereignty carries the power to create and to extinguish private rights and interests in land within the Sovereign's territory. It follows that, on a change of sovereignty, rights and interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign power. 
Broadly speaking, extinguishment takes place in two stages of the native title process. First, in the recognition stage, the court will only recognise claims where there has been an ongoing connection between the claimants and the land. Thus, historical dispossession through legislative or executive acts, or any other unauthorised (including illegal) acts will be confirmed in the native title process. The pending decision of the High Court in the Yorta Yorta case will decide the extent of 'extinguishment' in this stage of the native title process.
Second, even if the claimants' relationship to their land withstands this historical dispossession and their connection remains strong, the court will, as a matter of law, determine whether the title has in any case been extinguished by the creation of non-Indigenous interests (whether current or expired) over the same land.
The court's approach to the extinguishment of native title has been made clear in the Miriuwung Gajerrong decision and the decision in Wilson and Anderson.  The first requirement is to determine whether the Native Title Act prescribes extinguishment, either through the 'past act' regime or the confirmation provisions. Where the NTA is silent on extinguishment the common law will operate and extinguish native title either completely, where the subsequent interest amounts to exclusive possession, or partially, to the extent of any inconsistency with the subsequent, non-Indigenous interest. The High Court also decided the question, left open in the Wik case, of whether, in the event of inconsistency native title is suspended for the duration of the inconsistency or whether it is permanently extinguished to that extent. Permanent extinguishment was preferred.
This preference confirms the underlying premise on which native title is constructed through the common law and the legislation; that the acquisition of sovereignty by the British was to the exclusion of any other sovereign power, including Indigenous people, and that the state is the sole repository of this power. As I said previously, the Miriuwung Gajerrong decision and the extensive extinguishment it contains, naturally follows from the assumptions about sovereign power contained in the common law and the native title legislation.
I want now to posit a different set of assumptions about sovereignty and power in order to break through the impasse which native title has reached to allow a real dialogue about a treaty to take place. But rather than approach these issues by seeking to re-define state sovereignty I want to approach it from the perspective of Aboriginal sovereignty.
To date, Aboriginal sovereignty has tended to be defined as something analogous to the sovereignty of the State or government in international law. It has, in my opinion, been wrongly conflated with the concept of 'State sovereignty'.
The effect of this is to establish a framework in which Aboriginal sovereignty is pitted against the existing system. Aboriginal sovereignty immediately becomes an oppositional force; a threat to territorial integrity; to our system of government; to our way of life. And as a consequence, it irresistibly leads the broader community to the conclusion that Aboriginal sovereignty cannot be recognised and must be resisted.
This issue of definition of Aboriginal sovereignty is one of the main concerns that I have at this early stage of debate about a treaty. There has been an illegitimate and quite wrongful assumption made by Government that it has the prime role in defining what Aboriginal sovereignty is.
This is the wrong starting point for the treaty debate. It gives pre-eminence to non-Indigenous understandings even before the process has gotten underway. Defining Aboriginal sovereignty in these terms, in non-Indigenous ways, is a way of guaranteeing its fragility and ultimate demise.
There is a second set of concerns that I have about the defining of Aboriginal sovereignty as the same as, and thus a competitor of, State sovereignty. This is that it also promotes a concept of power in Australian society as static and monolithic; only able to reside in the State - the government - and unable to be changed or challenged.
There are a number of problems with this construction of power, not least of which is its lack of reality. The nature of Australian sovereignty continually changes and is constantly being re-aligned and redistributed among a myriad of levels and players. The distribution of sovereign power is not fixed and unable to be challenged.
Historically, this evolving nature can be demonstrated by looking at the movement from the process of colonisation in the eighteenth and nineteenth centuries; to the federation of these colonies in 1900; to the continual re-alignments of power between the states, territories and federal governments under the Constitution; to the creation of new territories - such as the Northern Territory and A.C.T in the past forty years; to the passage of the Australia Acts in 1986 - just 16 years ago - when for the first time Australia became autonomous from the British legal system. It continues with ongoing debates about statehood for the Northern Territory; the possibility of becoming a republic; Australia's participation in the ANZUS alliance; and so on.
Clearly, distribution of power within society, between governments, is not static or monolithic.
But it is not just inter-governmental relations which change the nature of power distribution in Australian society. An equally important international force at play is developments in international law. Broadly speaking, in the nineteenth and early twentieth century, international law had shifted to a positivist construction. This was based on the premise that 'international law upholds the exclusive sovereignty of states and guards the exercise of that sovereignty from outside interference' .  This approach has increasingly been under challenge since 1945, particularly due to the process of decolonisation and the recognition of human rights. A key feature of this change has been the recognition of the rights of non-government actors in the international system. Indigenous peoples are now, for example, legitimately subjects and actors in the international legal system.
Ultimately, what this means is that we see an international legal system that is moving away from concepts of rights as being given by states or which only exist thanks to the acquiescence or agreement of governments. The move is towards a more naturalist, and truly universal, approach. Rights are not within the discretion of governments to give or withhold but are inherent. For Indigenous people, the international system has begun to acknowledge their collective rights to self-determination and to protection of culture - that is, that rights reside in a peoples' systems of organisation, governance and ultimately, sovereignty.
International law remains an imperfect system and this is certainly highlighted by the disjunction between the recognition of Indigenous people's rights by numerous expert bodies and independent authorities within the United Nations, as against the continued reluctance of government-run structures within the United Nations to provide similar recognition.
In the negotiations on the draft Declaration on the Rights of Indigenous People States still resist including any recognition of a collective dimension to Indigenous people's livelihoods and the full application of the principle of self-determination to Indigenous peoples.
Why do they resist? The reason usually given is to guarantee their territorial integrity and sovereignty. As Indigenous representatives point out, the underlying assumption here is that State sovereignty and territorial integrity are privileged over the rights of Indigenous peoples to be self-determining. That they have a higher claim to protection.
In fact just the opposite is true. International law simply does not prioritise a State's organisational form over the rights of its constituent members. The sanctity of the State's integrity is dependent on it remaining representative and being truly of the people.
As the former chair of the Working Group on Indigenous Populations, Erica-Irene Daes has stated:
The concept of "self-determination" has taken on a new meaning in the independent State to share power democratically. However, a State may sometimes abuse this right of its citizens so grievously and irreparably that the situation is tantamount to classic colonialism, and may have the same legal consequences. The international community discourage(s) secession as a remedy for the abuse of fundamental rights, but, as recent events around the world demonstrate, secession cannot be ruled out completely in all cases. The preferred course of action, in every case except the most extreme ones, is to encourage the State in question to share power democratically with all groups, under a constitutional formula that guarantees that the Government is "effectively representative"
Continued government representivity and accountability is therefore a condition for enduring enjoyment of the right of self-determination, and for continued application of the territorial integrity and national unity principles. 
International law will generally support the claim of States to territorial integrity, but this comes with responsibilities and the obligation to be representative and inclusive of all its citizens, including Indigenous peoples. Martinez makes the point:
The more effective and developed the national mechanisms for conflict resolution on indigenous issues are, the less need there will be for establishing an international body for that purpose. 
Ultimately, what this brief discussion of the international debate on self-determination hints at is that increasingly the credibility and legitimacy of a State's foundations, its sovereignty, depends on its inclusivity and the way it treats Indigenous peoples.The recognition of native title came from an acknowledgement of important truths about our past and the need to reconcile these truths with contemporary notions of justice. But it also brought to the fore a fundamental conflict arising at the time of the establishment of Australia as a colony; that is the conflict between the assertion on the one hand that the settlement of Australia gave rise to exclusive territorial jurisdiction by the colonial power and, on the other hand, the illegality and immorality of asserting this right without an agreement from those who previously occupied that land and who continue to maintain their deep spiritual economic and social connection to the land. The Miriuwung Gajerrong decision confirms that the native title process, while valuable in giving recognition to inherent rights, is not able to resolve this conflict.
Rather it must be resolved through a treaty process which emphasises co-existence and mutual benefit. Negotiation based on consent and equality can transform what was a contradiction at the foundation of our nation between the conflicting claims of Indigenous and non-Indigenous people to the jurisdiction of traditional lands, into an agreement as to the basis of our coexisting sovereignty over that same land.