Indigenous Peoples: Issues in International and Domestic Law Ch. 3

Indigenous Peoples:Issues in International and Australian Law


 

Seminar Three – Indigenous Peoples and Sovereignty


The third seminar in the series was held on Wednesday 10 November 2004 on the topic of Indigenous peoples and sovereignty – does sovereignty mean secession? The seminar was chaired by Greg Marks, Convenor of the Indigenous Rights Committee of the ILA (Australian Branch), who also provided introductory comments. Papers were presented by the Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, Mr Tom Calma, and Mr David Ritter, then Principal Legal Officer, Yamatji Marlpa Land and Sea Council and Visiting Fellow, Law School, University of Western Australia.


Papers presented at the seminar:

Greg Marks - Introductory remarks

It is customary now to acknowledge, in a forum such as this, that the land on which we stand, or on which this building stands, is Aboriginal land. This is an entirely appropriate acknowledgement.

But such a simple formulation does not take us very far and indeed its potential for glibness or for providing an element of parading one’s enlightened consciousness can cover over the real issues – who owned the land when Europeans arrived? Who now owns the land? What are the implications of such ownership? And this, of course, is a question wider than property or real estate law – it is not just who owns parcels of land in terms of proprietorship, although this a central consideration. Rather, is it is who owns the total extent of the land, that is the territory in question, in terms of control and decision-making. It is ownership as the constituent of sovereignty.

If we look at what happened to the Aboriginal people of this area we see a disaster that unfolded quickly despite the apparent good intentions of Governor Phillip. It was a disaster not just of misunderstandings and cross cultural confusion. It was a disaster inherent in the decision to occupy the land of another people. The contradiction between the humane intentions of the British and the expropriation of the land belonging to another society was not recognised. As Ian Jacobs in his History of the Aboriginal Clans of Sydney’s Northern Beaches observes:

In hindsight it seems quite bizarre that the well meaning and well intentioned Phillip was deliberate in his attempts to establish friendly relations when his purpose was to secure land from its traditional owners.[1]

Here, I think, we see the working of the concept of terra nullius in practical terms. The British did not see the legal rights of the inhabitants, rights which it can be argued are not merely moral rights but rights which have been recognised in the law of nations going back over many centuries.

The frontier in Australia is very recent. This is easily forgotten living in the midst of a complex, modern and largely urban society. In a world of rapid technological progress, intense engagement at the global level, and the increasing sophistication and cosmopolitanism of Australia, we can readily lose sight of the fact that the frontier is only a couple or a few generations ago. Take, for example, the life of Olive Pink, an eccentric Daisy Bates type character who lived and worked with Aboriginal people for a long period in Central Australia. When she camped to the north west of Alice Springs with the Walpiri in the 1930s to undertake ethnographic studies it was for many of these Warlpiri either a first or a very early contact situation, and traditional life had scarcely been touched by the European intrusion into their lands then getting underway.[2]

My own grandmother was born on a station in northern NSW and was cared for and looked after by traditional Aboriginal people – one couple in particular. She was an eyewitness to many of the events later re-told by Thomas Keneally in his book The Chant of Jimmy Blacksmith. At home we often heard about those tragic events from our grandmother, long before Thomas Keneally heard and retold the story.

So, the frontier is close to us in Australia, almost within living memory. Thus questions of sovereignty – whose land it was, how it came to be taken over and on what terms, and whether there are continuing claims to some sort of sovereignty that can stand up in law, domestic or international, these are questions that arise out of our immediate past. The legacy of the frontier remains highly contested, and the resolution of these issues remains central to Australia’s legitimacy and the justice of our legal and constitutional arrangements.

However, the issue of sovereignty of Indigenous peoples has been contested for a long time, since the original European expansion into the New World in the sixteenth century. By what right did Europeans acquire the territories of others, the Indigenous peoples, without their agreement? The question was studied, debated and contested at the very beginnings of international law, especially by Spanish jurists and theologians such as Francisco de Vitoria and Bartolome de Las Casas.[3]

The complex issues raised then always centred around the concept of sovereignty. They still do. If we ignore them, they will continue to haunt us. Issues of sovereignty and jurisdiction, both in terms of historical grievances on the part of Indigenous peoples, and their continuing claims for autonomy, will not go away from the discussion of indigenous rights. This is despite the efforts of many states and their domestic courts to refuse to acknowledge the continuing claims of indigenous people to international status.[4]

The Australian courts continue to deny outright that there is any continuing Aboriginal sovereignty or law-making capability past the date of acquisition of sovereignty by the Crown.[5] Similarly, the courts refuse to recognise that there is any ongoing responsibility, or fiduciary obligation, in respect of indigenous peoples, arising from the usurping of their ownership and control of their lands. In fact, the Australian High Court characterises the complete destruction of Indigenous sovereignty, and hence of any law-making or self-governance capacity, as a “cardinal fact”.[6] As per Chief Justice Gleeson and Justices Gummow and Hayne in the Yorta Yorta decision, the Court asserts that “there could be no parallel law-making after the assertion of sovereignty”.[7] Thus, the Indigenous peoples of Australia who suddenly appeared on the legal landscape with Mabo, did so on a pretty limited basis. They now had some, vulnerable, property rights. But the door has stayed firmly shut on sovereignty.

Apart from native title, Indigenous Australians have no distinct and inherent rights. They are entirely subject to the vagaries of Australian law – even the international protection that should have been provided by Australia voluntarily ratifying human rights treaties can, it seems, be ignored with relative ease by the Australian Government.

However, others have found a different path. In particular the US Courts and Governments have been able to recognise a form of Indian sovereignty, albeit constrained and limited. The doctrine of Indian tribes as separate nations, domestic and dependent, but nations nevertheless was set out in a trilogy of cases by US Chief Justice Marshall in the early 1830s.[8] This doctrine remains the basis of relations between Indian tribes and the federal government of the United States of America to this day, and provides Indian tribes with a level of legal rights and self-government unimaginable in Australia. And yet the US shows no signs of falling apart as a result of this recognition of ongoing sovereign rights.

It has been persuasively argued that US law in respect of Indian tribes reflects the doctrines of Indigenous rights argued by Francisco de Victoria and others in the sixteenth century.[9] Perhaps de Vitoria provides a conceptual framework for dealing with the fact of two peoples sharing the one land. Denying the application of terra nullius to the Americas, de Vitoria, in a famous passage, concluded that:

The aborigines in question were true owners, before the Spaniards came among them, both from the public and private point of view.[10]

However, he also allowed for very wide rights for the Spaniards in terms of sociability and trade, going as far as rights of residence and of exploitation of resources. In a way, this was a formulation of a co-existence regime, and although it was at root unjust to the Indians, it nevertheless provided for an on-going Indigenous sovereignty and for sets of legal rights existing side by side with those of the colonists.

Such an attempt to live with and provide a legal framework for the necessary ambiguity of settler societies has barely surfaced in the legal and constitutional framework of Australia. However, Indigenous Australians have discerned the need. Responding to the 10 Point Plan by which the Government of the day proposed to amend the Native Title Act in response to the Wik decision,[11] Indigenous negotiators advanced an argument for co-existence,[12] that is for co-existence of legal rights of pastoralists and Aborigines – one land, two owners.

I want to conclude with some brief general observations about the way the concept of terra nullius has worked to be the essentially racist justification of colonisation. The Roman law concept, which was the international manifestation of res nullius, that is a thing not owned by anyone but available to ownership by the first person to seize it with the requisite intention to become its owner for as long as they controlled it, was shifted by degrees from applying to lands that were genuinely empty, to lands that were in fact occupied, but occupied by so-called “uncivilised races”. These were races allegedly not socially or politically organised. In the words of the American international lawyer Christopher Joyner, speaking in respect of the Americas:

Despite the manifest inhabitation of the land by Indian tribes, European jurists conveniently reasoned that all Indians were barbarians and savages by instinct, and therefore incapable of self-government.[13]


Terra nullius, racism and destruction of a peoples’ sovereignty are intrinsically linked, in Australia as in other former colonies. David Ritter will explore the consequences of terra nullius in contemporary Australia in his paper entitled “The Return of the Zombie: Terra Nullius in 2004”.

Finally, no matter how these issues are dealt with by domestic courts and governments, sovereignty is, essentially, an international law concept. Since World War II, the rights of Indigenous peoples have re-emerged for consideration, affirmation and development at the international level. Sovereignty’s modern application to Indigenous peoples under international law has largely centred around the Indigenous demand that the international norm of self-determination should apply to them as to other peoples. However, at the international level opposition to Indigenous self-determination by some nations has been strong, apparently because of concerns about fostering secessionism or separatism. Tom Calma’s paper will bring us up to date with relevant developments in the UN system.

Thank you.

Tom Calma - Indigenous peoples and the right to self-determination

I would like to begin by acknowledging the Gadigal people of the Eora nation.

I pay my respects to the Gadigal as a Kungarakan man whose traditional country lies far north from here, up near Darwin. I recognise the relationship of the Gadigal to this land and their ongoing responsibilities to it, under the watch of their ancestors. In other words, I recognise the ongoing dimensions of the sovereignty of the Gadigal to this country.

On behalf of the Human Rights and Equal Opportunity Commission, thank you for joining us here today at this seminar which we are co-hosting with the International Law Association (ILA). This is the third seminar HREOC has co-hosted with the ILA on international law dimensions of issues facing Aboriginal and Torres Strait Islander peoples. These seminars have come about due to the efforts of Greg Marks of the ILA, with the eager support of the ILA's President, Margaret Brewster. So thank you to both Greg and Margaret for your efforts, and for your introductory comments this afternoon. I would also like to thank David Ritter who has flown over from Perth to join the discussion today.

This afternoon I am going to talk to you about the importance of the letter 'S' in international law. Indigenous peoples - or Indigenous people as governments prefer to refer to us - have been fighting for the letter 'S' in the United Nations for at least thirty years. We have been fighting for recognition in international law that we are a 'peoples'. As we know, one of the fundamental principles of international law is set out in Article 1 of the two international covenants (on civil and political, and economic, social and cultural rights). Article 1 states:

All peoples have the right to self-determination. By virtue of that right they may freely determine their political status and freely pursue their economic, social and cultural development.

Throughout the history of the United Nations, governments have been very careful to ensure that they have not used the words 'Indigenous' and 'peoples' next to each other in a sentence. So for example, the three main Indigenous mechanisms in the UN are called:

  • The Working Group on Indigenous Populations
  • The Permanent Forum on Indigenous Issues; and
  • The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people.

We are also currently in the International Decade for the World's Indigenous People.

On the odd occasion where the term 'Indigenous peoples' has been used, it has been qualified on the basis that the status of Indigenous people remains subject to negotiation. As an example, Article 1(3) of the International Labour Organisation's Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries states that:

The use of the term 'peoples' in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

Another such example is the Durban Declaration of the World Conference Against Racism from 2001. What governments are doing when they make such a qualification, or when they refuse to use the phrase 'Indigenous peoples' at all, is deferring to the ultimate settlement of this issue through another of the processes of the United Nations.

This is through the working group established by the Commission on Human Rights in 1995 and which is rather inelegantly known as the Ad-hoc open-ended inter-sessional working group on the Draft Declaration on the Rights of Indigenous Peoples. I will refer to it as the CHR Working Group for the remainder of this discussion. For ten years now, this working group has been negotiating a Declaration on the Rights of Indigenous Peoples.

There are two key dates relating to the Draft Declaration that will occur later this year. First, the CHR Working Group will meet for the third week of its tenth session from 29 November to 3 December. At the end of that week, the CHR Working Group will have deliberated for 10 years. Under Commission of Human Rights rules, there will be a review of the Working Group's operations, and a decision will need to be taken next March or April to decide whether to extend the working group any further.

The second key date is that the International Decade for the World's Indigenous People will end on Human Rights Day, December 10, this year. One of the key objectives of this decade is the adoption of the Draft Declaration on the Rights of Indigenous Peoples and the further elaboration of international standards on Indigenous rights. As you may know, to date through the CHR Working Group process a total of 2 out of 45 articles of the Draft Declaration have reached consensus and have been provisionally adopted. It is clear that when these two key dates come around there will not be a fully agreed and finalised Declaration.

What I want to talk about here is the nature of the debate in this working group on the application of self-determination to Indigenous peoples and some highly significant developments in the Working Group during its two most recent sessions in September 2003 and September 2004 on this issue.

I must confess that coming into the role of Social Justice Commissioner I had heard very negative opinions about the Working Group process. Of course, agreement on only 2 of 45 articles in 10 years with the most recent date of agreement on text being 1996 certainly doesn't leave a favourable impression. But I was quite surprised when I attended the latest session of the Working Group this September at the pace of the deliberations and the atmosphere of goodwill that exists in the negotiations. In light of the challenges that remain for this Declaration, I think it is worth me saying at this point that the negotiations are being conducted in good faith and there remains much hope that a Declaration will eventually come into existence.

So I am not describing to you a debate that has no chance of resolution. In fact, as you will see shortly, the debate is currently delicately poised and may even be heading towards consensus on the issue of recognition of a right to self-determination for Indigenous peoples. Before discussing why this is so, however, I will provide a brief overview of the history of the Draft Declaration. A full description of this history can be found in the Social Justice Report 2002.

Indigenous peoples' have sought the recognition of their rights in international forums going back to the League of Nations in the 1920s. There are two aspects to this struggle. First, recognition of the place of Indigenous peoples at the negotiating table as sovereign peoples, or the right to participate. And second, the elaboration of the distinct rights of Indigenous peoples, based on the recognition and protection of distinct Indigenous cultures and societies.

It was not until 1982, however, that Indigenous peoples have been able to access United Nations processes with any consistency or in numbers. This was made possible through the establishment of the Working Group on Indigenous Populations (or WGIP). For twenty plus years, the WGIP has fulfilled two functions. It has reviewed developments in the recognition of Indigenous human rights, something which it does on a thematic basis each year. And secondly, it gives attention to the evolution of standards concerning the rights of Indigenous peoples.

It is under this second function of the WGIP that the Draft Declaration on the Rights of Indigenous Peoples emerged between 1985 and 1993. The five independent experts who make up the Working Group engaged in debate with Indigenous organisations and governments in its annual sessions and progressively developed a Declaration setting out specific issues that they felt required recognition in order to protect the distinct cultures of Indigenous peoples. The Declaration recognises the distinct cultural attributes of Indigenous peoples and the necessity for these to be protected in order for Indigenous peoples to be able to live freely and in equality with other segments of society. This involved recognition of:

  • the spiritual connection of Indigenous peoples to their traditional lands and resources;
  • the specific vulnerabilities of Indigenous peoples, including through economic marginalisation and in times of war and conflict;
  • the particular vulnerabilities of Indigenous women and children; and
  • the need for recognition of the continuing existence of distinct systems of law and governance.

In 1993, the WGIP concluded its work on the Declaration when it inserted into Article 3 recognition that Indigenous peoples have the right to self-determination. The WGIP's Declaration was then adopted by consensus by the Sub-Commission on the Protection and Promotion of Human Rights in 1994. Both the Working Group on Indigenous Populations and the Sub-Commission are, of course, independent expert bodies in the UN human rights system.

In 1995, the Commission on Human Rights established the CHR Working Group to elaborate a Declaration on the Rights of Indigenous Peoples. As a working group of the CHR, this process is a political one involving States or governments. Indigenous peoples can participate in the working group in informal session, but ultimately the process is controlled by the member states. At times there have been heated debates in the Working Group on the adequacy of the participation of Indigenous peoples. And this is an issue that has not been fully resolved.

The specific mandate of the CHR Working Group is to negotiate a Declaration based on the draft prepared by the WGIP and endorsed by the Sub-Commission. So the negotiations take as their basis text that was negotiated by States and Indigenous peoples under the guidance and ultimate decision of the independent experts of the WGIP
The issue of self-determination lies at the core of the Declaration. There are a number of provisions in the Declaration which relate to this principle. The key ones for explaining the debates are as follows:

Preambular paragraph 14 affirms the fundamental importance of the right of self-determination of all peoples, and preambular paragraph 15 notes that this Declaration may not be used to deny any peoples their right of self-determination. Article 3 then outlines the right of self-determination in the language of the international covenants which I read earlier. Article 31 gives examples of what self-determination might entail and Article 45 ensures that the right of self-determination, and the other rights recognised in the Declaration, are to be applied consistently with the Charter of the United Nations. There are other articles of the Draft Declaration that relate to self-determination, but it is these ones that debates in the CHR Working Group have largely focused on.

It is fair to say that resolving the issue of Indigenous self-determination is the main challenge faced by the CHR Working Group. During the debates on self-determination in the working group to date, very few States have indicated that they can accept the current wording of the Draft Declaration. Most countries have sought to amend the text to safeguard their territorial integrity and political unity from separatist Indigenous movements. The Australian government position until this year was based in concern about separatism and secession, but went further as it opposed the use of the term 'self-determination' at all, and instead sought the Declaration to refer to a right to 'self-empowerment' or 'self-management'.

The United States of America has sought to further limit the application of self-determination to Indigenous peoples to what is termed 'internal' dimensions. And then a few countries, such as the United Kingdom and France, have expressed concern about ensuring that recognition of the rights of Indigenous peoples - including to self-determination - does not threaten the universality of human rights or provide special status to Indigenous peoples.

Indigenous peoples have responded to these concerns by stating that nothing less than the recognition of a full right of self-determination is acceptable. They have argued that the international covenants provide that 'all peoples' have the right of self-determination and that this applies without discrimination. Accordingly, the CHR Working Group needs to ensure that it does not restrict Indigenous peoples to enjoyment of a lesser, and discriminatory, standard of international law. The USA's position of internal self-determination is rejected outright by Indigenous peoples. Indigenous people also note that there are a number of independent studies through the Sub-Commission, as well as findings and commentaries by the human rights treaty committees which state that Indigenous peoples do constitute 'a peoples' for the purposes of article 1 of the international covenants. Accordingly, they argue that the existence of the right of self-determination for Indigenous peoples does not depend on its recognition in the Draft Declaration. This is another reason why Indigenous peoples are concerned that any restrictions on the right would be discriminatory.

This is a shorthand description of an extremely complex debate but it is these issues that have dominated the debates on self-determination in the Draft Declaration process. These debates have been very extensive in the 2003 and 2004 sessions of the CHR Working Group, and we are starting to see a convergence of the views of States and Indigenous peoples on the principle. The central issue here is the territorial integrity and secession argument. So in order to comment on this, let me describe to you the very significant developments on this issue in the 2003 and 2004 sessions of the Working Group.

The 2003 session of the Working Group focused on a proposal by the Nordic countries - Norway, Denmark, Finland, Iceland and Sweden - relating to self-determination. Part of this proposal involved amending the text of the Draft Declaration to address the concerns of States as well as those of Indigenous peoples. That proposal involved maintaining Article 3 of the Declaration in its original form and amending preambular paragraph 15 of the Declaration to include language from the 1970 Friendly Relations Declaration which would protect against the dismemberment of the territorial integrity or political unity of a State.

The American Indian Law Alliance (or AILA) conducted a detailed analysis of this proposal in which they concluded that it may inadvertently create a discriminatory standard for Indigenous peoples by subjecting the entire draft Declaration to the principle of territorial integrity. As a consequence, they proposed an alternative amendment to preambular paragraph 15 as well as preambular paragraph 14. This alternative text would, in their words, 'ensure a coherent approach that is consistent with international law' and 'meet the basic objectives of the Nordic States' proposal'. They stated:

We are prepared to consider an amendment to the preamble to (the Declaration) so as to acknowledge that international law principles applicable to the right of self-determination may be freely invoked in the future. However, it would be misleading and unjust to highlight in (the Declaration) solely the principle of territorial integrity. This could erroneously imply that the principle of territorial integrity has some special status or significance above a host of other international law principles -such as democracy, rule of law, respect for human rights, non-discrimination and justice - which all apply in the context of self-determination.[14]

Accordingly, AILA proposed the following amended text for pp14 and 15. The amendment to pp14 would ensure the equal application of the right of self-determination to Indigenous peoples, and pp15 would refocus the text from explicit guarantees of territorial integrity to a more general, and broader, application of international law standards. The AILA proposal is a critical intervention in the CHR Working Group. This is because it is the first time that an Indigenous organisation has proposed a substantive change to the text of the Draft Declaration. The importance of this was acknowledged by States and has been a catalyst for the debate in the 2003 and 2004 sessions.

Prior to the 2004 session of the Working Group, the Nordic States were joined by New Zealand and Switzerland in a new proposal for the Declaration. This built on the debates in the 2003 session and proposed new language for a number of articles, including those relating to self-determination. This new language on self-determination takes into account the AILA proposal from 2003 by building on their proposal for preambular paragraph 15.[15] It also takes up the concerns of States by explicitly incorporating into the body of the Declaration, in Article 3, language relating to territorial integrity.

This new language formed the starting point for discussion in the 2004 session of the Working Group. The new language in Article 3 reflects the Friendly Relations Declaration and is also drawn directly from the Vienna Declaration of the World Conference on Human Rights in 1993. As noted, it introduces to the draft Declaration explicit language on territorial integrity. Prior to this language being considered in the most recent session of the Working Group, Indigenous peoples gave consideration to alternative language on self-determination. This resulted in a further new proposal, which was put forward on behalf of most Indigenous representatives attending the meeting.

This proposal sought to build on the AILA proposal from last year by proposing a slightly reworded version of preambular paragraph 15, retaining Article 3 in its original form (that is, without explicit language on territorial integrity) and by adding a new preambular paragraph which would provide positive recognition to other principles of international law that are relevant to self-determination and which had been referred to by AILA in their submissions in the 2003 meeting. In introducing this proposal, Indigenous people provided an explanatory note as to the intention of the amendments. It reads in part, that the purposes of the amendments, which are to be read together, includes:

  • to achieve consensus among States and Indigenous peoples, by accommodating both State and Indigenous concerns in regard to the fundamental human right of self-determination;
  • to retain the original language of article 3... consistent with principles of equality and non-discrimination;
  • to affirm that, to the extent provided in international law, States will continue to have the freedom to invoke any principle of international law, including the principle of territorial integrity, in relation to the exercise of self-determination;
  • to avoid any explicit reference to the principle of territorial integrity in the (Declaration), in view of the growing abuses of this principle in different regions of the world; and
  • to encourage harmonious and cooperative relations between States and Indigenous peoples, based on universal and mutually reinforcing principles and values of international law.[16]

Again, the introduction of such a proposal and an explanatory note that explicitly details the interpretation of international law as it applies to Indigenous peoples in relation to self-determination is highly significant. Now there were a few other proposals made in the September 2004 meeting about self-determination, but at the end of the day the debate has reached a point where we are moving between this proposal of the majority of Indigenous delegations and that of the Nordic countries. The only other substantive proposal which differs from these is a proposal by another Indigenous delegation to include the entirety of Article 1 of the international covenants in Article 3 of the Declaration.

I want to conclude by making some comments about where the debate is at, but before doing that I want to provide you with one more piece of detail about the debate. A very significant development from an Australian perspective was the change in our government's position during the debates at this session. In previous sessions, our government had argued against the principle of self-determination. This year they dropped their opposition to the use of this term, with the proviso that it was appropriately qualified with protections of territorial integrity. The Nordic, New Zealand and Swiss proposal in this year's meeting addresses that concern and so the government were prepared to accept this text or a slightly modified version of it.[17]

So where does this leave us and more importantly what does it mean?

There has been a significant narrowing in the lines of dispute about the right of self-determination as it applies to Indigenous peoples. Most participants in the CHR Working Group, through the positions they have adopted, impliedly or explicitly acknowledge that Indigenous peoples are capable of being recognised as possessing a right of self-determination. These debates have, in my view, moved from being focused on whether Indigenous peoples have a right to self-determination to now focusing on the nature and extent of Indigenous peoples' right to self-determination.

This is not to say that it is not still contentious. Recognition of self-determination is a vital step in a legal process of decolonising the relationship of Indigenous peoples and States. Some Indigenous peoples see the attempts to impose qualifications of territorial integrity as leading instead to their re-colonisation or as limiting recognition of their sovereign rights as Indigenous nations.

When the CHR Working Group resumes later this month it will focus on the issue of self-determination. It is likely that the debate will come down to how the principle of territorial integrity is 'captured' by the Declaration. The proposal of Indigenous peoples, with no explicit reference, comes with a clear understanding of how international law operates and how it includes territorial integrity considerations. Some States showed great interest in seeing the explanatory note jointly agreed by most of the Indigenous delegations incorporated into the record of the meeting, so that it may form part of the interpretative materials of the Declaration (or the travaux préparatoires) once it is concluded.

The Social Justice Commissioner's Office, along with Australian Indigenous organisations, has endorsed this proposal. It has clear logic and a guarantee of the application of the territorial integrity principle alongside other principles of international law through the provisions of preambular paragraph 15 as well as Article 45 (which I only briefly mentioned earlier). In other words, despite the absence of explicit language on territorial integrity, the draft Declaration has a double guarantee of the application of this principle already. But it is a guarantee that is appropriately weighted alongside other, equally important, principles of international law.

What remains to be seen is whether this logic is enough for those States who remain concerned to ensure that there is absolutely no misunderstanding about the effect on their political unity and territorial integrity of the recognition of the right of self-determination for Indigenous peoples. I would argue that more explicit text is unnecessary from an international law perspective. But as Indigenous peoples have known and stated for a long time, this process is one that is primarily about politics and not law. And I think it is a politics of decolonisation - a new version of a process that to date has not been applied to Indigenous peoples.

This is the context in which the upcoming negotiations on the Draft Declaration will take place.

Thank you.

Postscript

The CHR Working Group met for its eleventh
session in November–December 2005 and
January–February 2006. By the end of this session
consensus had been reached on approximately
two thirds of the text of the Declaration.
Negotiations continued on self-determination,
land and resources, the general provisions and
other issues.

The Chairperson of the Working Group
submitted his report on the Declaration to the
Commission on Human Rights in March 2006.
In his report, the Chairperson annexed a revised
Chairperson’s text for the Declaration. This
text includes all language agreed during the
negotiation sessions, as well as the Chairperson’s
own proposals on those remaining articles that
were still pending, based on the discussions held
during the sessions.

In relation to self-determination, the Chairperson’s
text maintains Article 3 unamended; moves
Article 31 so that it is placed immediately
following Article 3 (this identifies self-government
and autonomy as a special form of the exercise of
self-determination); and preambular paragraphs
14, 15, 15bis and 16 continue to provide
interpretative content on self-determination.
The Chairperson states in his report to the CHR
that he hopes that his Chairperson’s text ‘would
be considered as a final compromise text’.66
The Chairperson’s text was then considered at the
inaugural session of the Human Rights Council.
Indigenous organisations and numerous States
pushed for the adoption of the Declaration. On
29 June 2006, this text was adopted by a vote of
30 for, 2 against, 12 abstentions, with 3 states
absent.

The Human Rights Council’s Declaration on
the Rights of Indigenous Peoples will now be
considered by the United Nations General
Assembly in its 61st session in the latter part of
2006. With the likely passage of the Declaration
through the General Assembly, the debate on the
entitlement of Indigenous peoples to the letter ‘S’
will be confirmed once and for all.


David Ritter - The Return of the Zombie: Terra Nullius in 2004

Prologue

Thank you to the Human Rights and Equal Opportunity Commission for the support in travelling from Western Australia, to the International Law Association for the invitation to talk and to my employer, the Yamatji Barna Baba Maaja Aboriginal Corporation native title representative body for permitting me to accept.

Introduction

The doctrine of terra nullius is once again a matter of public intellectual debate, with recent contributions appearing in The Financial Review,[18]The Bulletin,[19]The Australian,[20]Quadrant, Michael Duffy’s Counterpoint[21] and Geraldine Doogue’s Sunday Profile[22] on Radio National. In this paper I discuss this sudden proliferation of noise about terra nullius and what it might signify. In order to address the present though, I first want to return to very different days, specifically ten years back in time in November, 1994...

A decade ago I completed my first writing about native title, a critical analysis of the so-called ‘rejection of terra nullius’ in Mabo.[23] I was motivated to write by what seemed to be an extraordinary disjunction: numerous commentators were saying that it was ‘the rejection of terra nullius’ by the High Court in Mabo that had permitted the recognition of native title in Australia: it was a description in the nature of an accepted shorthand.[24] Yet, prior to Mabo, there was no Australian court case at all which stood as authority for the proposition that the application of the ‘doctrine of terra nullius’ prevented native title in Australia from being recognised. In the only prior Australian case on point, Milirrpum v Nabalco which was decided in 1971, the single judge of the Supreme Court of the Northern Territory who heard the matter decided that native title had ‘never formed, part of the law of any part of Australia,’[25] but he did not rely on any so-called doctrine of terra nullius.[26]

Legal historian Henry Reynolds was, even before Mabo, perhaps the most famous and forceful exponent of the idea that terra nullius stood as a barrier to the recognition of native title in Australia. According to Reynolds in the vastly influential 1987 work, The Law of the Land, Australia had been annexed by the Crown as apparently terra nullius (a land belonging to no-one) because the indigenous inhabitants seemed ‘without political organisation, recognisable systems of authority or legal codes.’[27] Reynolds concluded that, if the Courts would accept that Australia was not terra nullius at colonisation, then there would be no choice but to recognise the existence of native title under Australian common law. Reynolds felt that, with ‘terra nullius out of the way,’ prior Aboriginal occupancy could become ‘the starting point for legal argument.’[28] The subsequent apparent rejection of terra nullius and the recognition of native title in Mabo seemed to verify Reynolds’ ideas.

Ten years ago my conclusion was that the High Court’s repudiation of the doctrine of terra nullius was doctrinally immaterial to the result in the Mabo decision. No obscure international law maxim had ever stood as a barrier to the recognition of native title in Australia. The more prosaic truth was that prior to Mabo, the High Court had simply never been asked to decide whether Australian law recognised Indigenous titles to land. In Mabo, in the absence of any binding Australian precedent, the Court simply considered the state of affairs in every other nation in the common law world, – including Canada, New Zealand and the United States - and in each case the authority was clear: there was a doctrine of native title. The Mabo case was no more than the cautious application of principle accepted throughout the rest of the common law world and, as such, was both proper and quite conservative.[29] I was emboldened because other rather more distinguished commentators had reached the same conclusions about the relevance of terra nullius, including the former High Court Chief Justice Sir Harry Gibbs and Professor Richard Bartlett, one of the leading academic authorities on native title in Australia, who had written that:

The Mabo decision has been hailed as the rejection of the concept of ‘terra nullius’...But the concept is essentially irrelevant to native title at common law.[30]

In my view there was a particular ideological explanation for why the High Court had engaged in what appeared to be a purely rhetorical exercise. By 1992 it had become clear as a matter of acknowledged public fact that Aboriginal people did own land in a proprietary sense according to their own traditional system of law and custom and that, accordingly, the absence of legal recognition of native title created a rupture between truth and power. By purporting to reject ‘terra nullius’ as the doctrine that had been responsible for Aboriginal dispossession, the High Court was able to solve the discursive crisis. While power in Australian society had shifted somewhat with the recognition of native title under the common law, the broader ideological consequence was the re-legitimation of the existing legal hierarchy. The Mabo decision said nothing about the legitimacy of British colonisation of the Australian continent. Quite the reverse: it confirmed that Commonwealth sovereignty was inviolate. In a simple legal-historical moral fable, once the wicked and unjust doctrine of ‘terra nullius’ had been dispelled, the legal and administrative arrangements which were assembled after the fall could be defended as, by definition, fair and just.[31]

The High Court’s refutation of terra nullius was also seen as raising the curtain for the new native title era which began on 1 January 1994 with the commencement of operation of the (Commonwealth) Native Title Act. Upon the commencement of the actual operation of the relevant legislation it could be said that in practice there was ‘terra nullius no more.’[32] The new debates were about the detail of native title: what it was, who held it, what destroyed it and the functioning of that labyrinth of process which the NTA ushered in to existence. Pre-eminent among the debates that followed Mabo and the enactment of the NTA, were the pastoral lease question (was native title extinguished by pastoral leases?) and the tradition question (how ‘traditional’ did an Aboriginal society have to be to continue to be acknowledged as native title holders?) Answers to these and other questions have now been provided by the Courts.[33] It is now abundantly clear that the law of native title, though still an important process for the recognition of traditional ownership, is less than the great emancipatory revelation for all Indigenous people than some people once envisaged.

What role has ‘terra nullius’ played in the post-Mabo environment? First, if one accepts for a moment the notion that a doctrine of terra nullius did have to be rejected in order for Mabo to be decided as it was, then one would expect it to be irrelevant to ongoing formal legal debates, perhaps like obsolete causes of action forming no part in contemporary civil litigation. Similarly though, if one follows the thesis that terra nullius was not pertinent to the question of whether native title should be acknowledged under Australian law, then the expectation would also be that it would be absent from current question. So how do we account for the renewed interest in terra nullius?

The ‘rejection of terra nullius’ remains entrenched as a convenient summary of the popular or collective understanding of the Mabo decision: a slogan to be invoked in speeches, newspaper articles and textbooks. The familiar incantation is suggestive of course of far more than just the purported ratio decidendi of the Mabo case. While no doctrine of terra nullius needed to be rejected in Mabo, the phrase was never-the-less an evocative description of the discourses that operated to legitimate the dispossession of Aboriginal people and permitted both the exclusion of Aboriginal people from the rule of law, and, where Aboriginal people were formally included within the colonial system, the manner in which they were disadvantaged because of their non-conformity to the dominant culture. One sometimes also sees reference to the ‘rejection of terra nullius’ used as shorthand to connote both the apparent victory of the new Indigenous history over the silence of earlier historiography and the policy triumph of self-determination over assimilation. The phrase also echoed Prime Minister Paul Keating’s broad political rejection of Australia’s imperialist, anglospheric and monarchist past, in favour of a republican, multilateral and multicultural future. The ‘rejection of terra nullius’ was a phrase encapsulating the political and cultural zeitgeist.

Times, though, have changed and the political use of the metaphor of terra nullius has shifted with them. Where once Reynolds used the term to create what Bain Attwood has recently called a ‘juridical history or myth’ upon which the doctrine of native title could be founded;[34] now the spectre of terra nullius is summoned to renounce the atavistic. By way of example, in a contribution to Robert Manne’s 2003 anthology Whitewash, a collection of essays on Windschuttle's book The Fabrication of Aboriginal History, entitled ‘Terra nullius Reborn’, Reynolds argued that there:

is no doubt about Keith Windschuttle’s ambition. He seeks to bring the concept of terra nullius back to life... He tells us that the notions of the exclusive possession of territory and the defence of it either by law or force ‘were not part of the Aborigines’ mental universe.’ In short the Tasmanians ‘did not own the land.’ The concept of property was ‘not part of their culture.[35]

It is ambiguous that rather than dealing with Windschuttle on the many and varied methodological grounds that are available, Reynolds chooses to resort to the rhetorical authority of the law. However, as a matter of law and logic, Windschuttle cannot ‘bring the concept of terra nullius back to life’ as Reynolds alleges. An historian cannot retrospectively impose the operation of a legal position on people and events of two hundred years ago. John Dawson in a vitriolic attack in the July-August 2004 edition of Quadrant, suggested that, rather than argue in methodological terms, Reynolds:

plants his banner on the battlements of the High Court, and with a cry of ‘Remember Mabo’ he rallies the faithful to his side in its defence.[36]

Reynolds is not the only eminent historian who has used the High Court as a redoubt in the midst of the so-called history wars. Patricia Grimshaw, for example, engaged in public debate with Keith Windschuttle, cited the ‘rejection of terra nullius’ in Mabo as one of the reasons why listeners should discount the latter’s arguments.[37] There is a clear elision occurring between the doctrine and the discourse of terra nullius in these debates. Logically, it can only be the ‘discourse of terra nullius’ which Windschuttle is seeking to reinvigorate and which Reynolds, Grimshaw and others are seeking to condemn, but confusion arises because the phrase also purports to name a doctrine with legal affect. References to the Mabo decision to support the arguments of historians are also ambiguous in another way. Since when did historians cede jurisdiction to the law courts? It is one of the enduring intellectual and cultural consequences of the Mabo decision and the High Court’s doctrinally unnecessary forays into history, that an implicit expectation developed that the ‘new Indigenous history’ which has been elaborated in Australia in the last thirty years could be written up, accompanied by legal submissions and taken to the Courts in the expectation that ‘justice’ (in accordance with contemporary ideas of that expression) would be done.

The hearing of an application for a determination of native title before the Federal Court is no more than an adversarial proceeding concerning the existence of present rights. A native title ‘claim’ is not made for recompense for past loss, but for the recognition of current but inchoate rights. There is no ‘defence’ available to Aboriginal people that they would have been able to prove native title but for past injustices. The role of the courts is not to do ‘historical justice’ (whatever that means); the judicial function is to decide a dispute between the parties on the basis of the limited range of facts in evidence. Historians should not so willingly cede jurisdiction over humanistic thinking to judicial functionaries.[38]

Late last year saw the publication of an expanded third edition of Reynolds’ 1987 book, The Law of the Land. Strangely, the new version does not respond to any of the critics of the original work and the fresh writing is principally confined to the development of the law of native title since Mabo.[39] Unsurprisingly, Reynolds does not like what he has seen and reflecting bitterly on the way that the Courts have interpreted native title he concludes that if ‘you can no longer sustain terra nullius in the face of world opinion, an ‘inherently fragile’ native title is the next best thing.’[40] A significant critique of Reynolds’ new edition has come from fellow historian Bain Attwood who has also highlighted the legal irrelevance of terra nullius to the Mabo decision in a sustained criticism of the Reynolds thesis in a lengthy article published in The Financial Review.[41]

Curiously, Attwood’s review found an almost immediate admirer in Christopher Pearson, who wrote a scathing attack on Reynolds for The Weekend Australian.[42] It is implicit in Pearson’s commentary that if Reynolds was wrong about terra nullius, then the High Court’s decision in Mabo must also have been wrong and there should never have been any recognition of native title in Australia:

the discipline of economic history is so unfashionable that we are not likely any time soon to get a sober reckoning of what Mabo, Wik and the native title legislation all told cost the gross national product.[43]

Ironically though, in assuming that the rejection of terra nullius played a decisive role in Mabo, Pearson is actually accepting Reynolds’ analysis of the case. The problem for both Pearson and Reynolds is that, as I have argued, Mabo turned on the proper interpretation of the common law, not the applicability of the international law notion of terra nullius.

Another of Pearson’s inspirations was Tasmanian historian, Michael Connor who has written a series of articles censuring Reynolds, and criticizing the numerous commentators who have adopted the shorthand ‘rejection of terra nullius’ meaning of Mabo.[44] Connor too seems to assume some determinative doctrinal significance of terra nullius to the result in Mabo, though his principal concern is with what he perceives as ‘the fawning stupidity, cupidity of a generation’ of historians ‘and their willingness to believe the unbelievable.’[45]

History is being written with both eyes on the law courts, and sometimes in the pay of the parties arguing in the courts.[46]

Connor is correct in noting that historians are being retained as expert witnesses in native title cases. However, historians like Reynolds whose legal-historical arguments may quite properly influence the court in certain circumstances under even the most conservative analysis of the extent to which judges may have regard to history,[47] are not in the nature of retained expert witnesses in native title proceedings, who are subject to appropriately rigid Federal Court practice directions.[48]

It is evident that the recent legal-historical debates about the strength of Reynolds’ scholarship evince ongoing dialogues over present controversies, fought on the terrain of the past. Pearson is using historical debate as an opportunity to try to reopen old political battles over native title, implying that if Reynolds was wrong, there should be no native title. Connor dismisses reliance on Reynolds’ theories not only on the basis of their inaccuracy, but more broadly on ideological grounds as inapt for the present because ‘terra nullius serves a politics of confrontation.’[49] Reynolds himself continues to invoke terra nullius, though in the manner of Bob Roberts singing, ‘the times they are a changing, they are a changing back.’[50] In these arguments over the meaning of ‘terra nullius’, whether at an historical or historiographical level, what is occurring is a contest over the present. Indeed, if the rhetorical ‘rejection of terra nullius’ became a metaphor for the (then) Prime Minister’s broader denunciation of Australia’s monocultural past, then the current assault on Reynolds from the right is redolent of the wholesale destruction of the Keating agenda by the government of John Howard.

Terra nullius was doctrinally irrelevant to the recognition of native title in Mabo and is not germane to the native title process now. Yet the inconsequence of terra nullius to the decision in Mabo, does not mean that the decision should have been differently decided and no amount of reconsideration of the legal history of Henry Reynolds can have the sensible implication as a matter of law, that the recognition of native title should be reversed. Native title is well established throughout the common law world and has now become assimilated within the mainstream of Australian jurisprudence and legal administration. Nevertheless, the politics of terra nullius, a doctrinally irrelevant phrase from a dead language, remains animated. The ‘rejection of terra nullius’ has its own shifting historiography; a context for ongoing debate about the present.



[1] Jacobs, Ian, A History of the Aboriginal Clans of Sydney’s Northern Beaches, Northside Printing 2003, p 27.
[2] Markus, Julie, The Indomitable Miss Pink – A Life in Anthropology, UNSW Press, 2001.
[3] Marks, G C, “Indigenous Peoples in International Law: The Significance of Francisco de Vitoria and Bartolome de Las Casas” (1992) AYIL 13, pp1-51.
[4] See Anaya, James, Indigenous Peoples in International Law, Oxford University Press, 2nd ed, pp26 -31.
[5] For example, Coe v Commonwealth (1979) 53 ALJR 403 and Walker v New South Wales (1994) 185 CLR 45.
[6]Western Australia & o’rs v Ward & o’rs [2002] HCA 28 (8 August 2002) (‘Miriuwung Gajerrong’)
[7]Members of the Yorta Yorta Aboriginal Community v Victoria & o’rs [2002] HCA 58 (12 December 2002) per Gleeson CJ, Gaudron, Gummow & Hayne JJ at [44].
[8]Johnson v McIntosh, 21 US (8 Wheat) 543 (1823); Cherokee Nation v Georgia 30 US 1 (1831); Worcester v Georgia 6 Pet 515 (1832).
[9] Cohen, F, “The Spanish Origins of Indian Rights in the Law of the United States” (1942) 31 Geo LJ1
[10] Vitoria, F, De Indis and De Jure Belli Relectiones , (1st ed np 1557) reprinted in Scott JB (ed) Classics of International Law Series, 1964 (Bates J trans)
[11]Wik Peoples v Queensland (1996) 187 CLR 1.
[12] National Indigenous Working Group, Coexistence – Negotiation and Certainty, Canberra April 1997.
[13] Joyner, C, ‘The Historical Status of American Indians Under International Law”, 11 The Indian Historian No 4, at 31.
[14] American Indian Law Alliance, Nordic States' proposal on self-determination: Indigenous concerns and a proposed alternative, 15 September 2003.
[15] Note: The AILA proposal was added to by Guatemala and Mexico during the 2003 session and resulted in a revised version which has been referred to as the Guatemala / AILA proposal. For the purposes of time I have not described the content of this proposal, as is it is incorporated into subsequent proposals by Indigenous Peoples and the Nordic countries in the 2004 session.
[16] Inuit Circumpolar Conference, Indigenous peoples proposed amendments relating to the right of self-determination - explanatory note, 20 September 2004.
[17] The government indicated in debates that it was prepared to move the second new proposed paragraph of Article 3, which relates to legitimate action to realise the right of self-determination, to the Preamble.
[18] B. Attwood, ‘Myth, history and the law of the land’, The Australian Financial Review, Friday 11 June 2004, 6-8, 6 (this article appears expanded and referenced as B. Attwood, ‘The Law of the Land or the law of the land?: History, law and narrative in a settler society’, History Compass, vol. 2, 2004).
[19] M. Connor, ‘Error Nullius Revisited’, Upholding the Constitution, 16, ch.4
[20] M. Connor, ‘Dispel myth of terra nullius and historians are on shaky ground’, The Australian, 9 July 2004

[21] ‘Terra Nullius: Legal Update’, Counterpoint, Monday 16 August 2004, presented by Michael Duffy, transcript available at http://www.abc.net.au/rn/talks/counterpoint/stories/s1179206.htm; and ‘Wedge Watch - Terra Nullius Contested’, Counterpoint, Monday 12 July 2004, presented by Michael Duffy; transcript available at http://www.abc.net.au/rn/talks/counterpoint/stories/s1153484.htm.

[22] ‘Bain Attwood and Terra Nullius’, Sunday Profile, presented by Geraldine Doogue, Sunday, 25 July 2004, transcript available at http://www.abc.net.au/sundayprofile/stories/s1160553.htm.
[23] Subsequently published as D. Ritter, ‘The Rejection of Terra Nullius in Mabo: A Critical Analysis’, Sydney Law Review, (1996) 18(1) 5.
[24] See for some examples of many B. Mellor, ‘Nullius annulled’, Time Australia, 1992 7, 52; M. Lavarch, Native Title: Legislation with Commentary, Commonwealth Government Printing Service, Canberra, 1994, pp.iii -iv; M. Mason, The Mabo Case-Native Title Ousts Terra Nullius, Commonwealth Parliamentary Library, Canberra, 1992.
[25]Milirrpum v Nabalco Ltd and the Commonwealth (1971) 17 FLR 141, p.245.
[26]The decision was also widely and correctly criticised as wrong at law. See J. Hookey, ‘The Gove Land Rights Case’, Federal Law Review, 1972 5; passim; Calder v Attorney General for British Columbia (1973) 34 DLR (3d) 145 (S.C), pp 200 and 218; ‘Aboriginal Title to Lands’, University of Western Australia Law Review, 1974 6, 282, p.283; K. McNeil, ‘A Question of Title’, Monash University Law Review, 1990 16, 91, p.93; M.C. Blumm and J. Malbon, ‘Aboriginal Title, the Common Law and Federalism’ in M.P. Ellinghaus (ed), The Emergence of Australian Law, (Butterworths Sydney), 1989, p.141; R.H. Bartlett, ‘Aboriginal Land Claims at Common Law’, University of Western Australia Law Review, 1983 15, 293, p.293; K. McNeil, Common Law Aboriginal Title, (Oxford University Press Oxford), 1989.
[27] H. Reynolds, The Law of the Land, Penguin, Ringwood (Vic.), 1987, p.12.
[28]Ibid, p.174.
[29] For contemporary defences of the decision, see M. Kirby, ‘In Defence of Mabo’ in M. Goot and T. Rowse (eds), Make a Better Offer: The Politics of Mabo, Pluto Press, Leichardt (N.S.W.), 1994; G. Nettheim, ‘Judicial Revolution or Cautious Correction?’, University of New South Wales Law Journal, 1993 16, 1, S. Churches, ‘Mabo: A Flexible Sinew of the Common Law’, Brief, 1993 20, 8 and R.H. Bartlett, ‘Mabo: Another Triumph for the Common Law’, Sydney Law Review, 1993 15, 178.
[30]R.H. Bartlett, R.H., The Mabo Decision, Butterworths, Sydney, 1993, p.ix.
[31] A conclusion supported by Bain Attwood. See B. Attwood, ‘Myth, history and the law of the land’, The Australian Financial Review, Friday 11 June 2004, 6-8, 6 (this article appears expanded and referenced as B. Attwood, ‘The Law of the Land or the law of the land?: History, law and narrative in a settler society’, History Compass, vol. 2, 2004).
[32] To use the title of an article of the time. See F. Brennan, Terra Nullius no more’, Eureka Street, 1992 2, 4.
[33] This is not the place to cite the relevant authority. See generally R. Bartlett, Native Title in Australia, Butterworths, 2004 and M. Perry and S. Lloyd, Australian Native Title Law, Thompson, 2003.
[34] B. Attwood, ‘Myth, history and the law of the land’, The Australian Financial Review, Friday 11 June 2004, 6-8, p.8.
[35] H. Reynolds, ‘Terra Nullius Reborn’ in R. Manne (ed), Whitewash: On Keith Windschuttle’s Fabrication of Aboriginal History, Black Inc, Melbourne, 2003, p. 109.
[36] J. Dawson, ‘The Nullius Ideal: on “Terra Nullius Reborn” by Henry Reynolds’, Quadrant, Vol XLVIII, No 7, July-August 2004: available online at: http://www.quadrant.org.au/php/archive_details_list.php?article_id=862.
[37] In the course of a debate with Windschuttle entitled ‘White Settlement: Violent Conquest or Benign Colonisation?’, aired on 20 April 2003 on ABC Radio National’s Hindsight program.
[38] See generally H. Wootten, ‘Conflicting Imperatives: Pursuing Truth in the Courts’ in I. McCalman and A. McGrath, Proof & Truth. The Humanist as Expert, Australian Academy of the Humanities, Canberra, 2003.
[39]The Law of the Land, despite its influence, has always enjoyed a mixed reputation, even on what might be described as the academic left. See for example V.Gollan’s contribution to R.Lilley et al, ‘The Appropriation of Terra Nullius. A Review Symposium’, Oceania, 1988-89, 59, 222-231, p 229; V. Kerruish, ‘Reynolds, Thompson and the Rule of Law’, Law in Context, 1989 7, 87 and A. Curthoys, ‘Rewriting Australian History: Including Aboriginal History’, Arena, 62, 1983, 96-110.
[40] H. Reynolds, The Law of the Land, Penguin Ringwood (Vic.), 3rd ed, 2003, p.235.
[41] B. Attwood, ‘Myth, history and the law of the land’, The Australian Financial Review, Friday 11 June 2004, 6-8, 6 (this article appears expanded and referenced as B. Attwood, ‘The Law of the Land or the law of the land?: History, law and narrative in a settler society’, History Compass, vol. 2, 2004).
[42] C. Pearson, ‘Shifting War on Terra Nullius’, Weekend Australian, June 26-27, 2004, p.18.
[43] C. Pearson, ‘Shifting War on Terra Nullius’, Weekend Australian, June 26-27, 2004, p.18.
[44] M. Connor, ‘Dispel myth of Terra Nullius and Historians are on Shaky Ground’, The Australian, 9 July 2004; M. Connor, ‘Error Nullius’, Bulletin, 28 August, 2003 and M. Connor, ‘Error Nullius Revisited’, Upholding the Constitution: Papers of the Samuel Griffith Society, 16(4).
[45] M. Connor, ‘Error Nullius Revisited’, Upholding the Constitution: Papers of the Samuel Griffith Society, 16(4), p.9.
[46] M. Connor, ‘Error Nullius Revisited’, Upholding the Constitution: Papers of the Samuel Griffith Society, 16(4), p. 8.
[47] See for example Communist Party Case (1950-51) 83 CLR 1 and Woods v Multisport Holdings Pty Ltd [2002] HCA (7 March 2002), per McHugh J and Callinan J.
[48] See Federal Court of Australia, ‘Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia’, issued by Black CJ on 19 March 2004. Reynolds was specifically retained in relation to the Wik litigation: see H. Reynolds, ‘Native title and Pastoral Leases’, Aboriginal Law Bulletin, 3 (85), Oct 1996, 14-5 and H. Reynolds and J. Dalziel, ‘Aborigines, Pastoral Leases and Promises by the Crown: Imperial and Colonial Policy, 1826-1855’, University of New South Wales Law Journal, 1996 19, 315. For a critical review of the Court’s favourable reception of Reynolds in the Wik case see J. Fulcher, ‘Sui Generis History? The use of history in Wik’ in G. Hiley (ed), The Wik Case – Issues and Implications, Sydney, Butterworths, 1997 and J. Fulcher, ‘The Wik Judgment, Pastoral Leases and Colonial Office Policy and Intention in NSW in the 1840s’, Australian Journal of Legal History, 1998 4, 33-56.
[49] M. Connor, ‘Error Nullius Revisited’, Upholding the Constitution: Papers of the Samuel Griffith Society, 16(4), p.3.
[50]Bob Roberts, written and directed by Tim Robbins, 1992. The plot involves a corrupt rightwing folksinger running a crooked election campaign while an independent muck-raking reporter tries to stop him. One of Bob Roberts’ more memorable choruses is that ‘the times they are a changing, they are a changing back.’