Student Number: 9444911 Take Home Exam : Q.

LS 364: Indigenous Law

Name: Andrew Ferrari

Student Number: 9444911

Unit Coordinator: Jennifer Greaney Take Home Exam Q.2:

Due Date: 22nd January 2010

Word Count: 987

Student Number: 9444911 Take Home Exam : Q.2 Introduction This paper considers whether a treaty is the best way to achieve reconciliation between indigenous and non-indigenous Australians. Part 1 of this paper considers the meaning of reconciliation, and in Part 2, the objectives of reconciliation are set out. Parts 1 and 2 will be used as a control by which methods of achieving reconciliation can be measured and compared.

Part 3 discusses treaties as method of achieving reconciliation. Part 4 discusses two methods of achieving reconciliation (other than treaties), and then compares their potential to deliver reconciliation as against treaties. Part 5 argues that treaties are the best way to achieve reconciliation.

1. What is reconciliation In order to achieve reconciliation, we must first know what it is. Reconciliation can be interpreted in many ways. It can be a label given to the pursuit of unity, equity and justice. It can be descriptive of a peoples movement. It can refer to practical reconciliation, and it can reflect the recognition of Indigenous peoples rights.1 Moreover, reconciliation is now widely seen as a process, rather than simply a destination.

In the Australian context, reconciliation means: 1) achieving a better relationship between Indigenous and non-Indigenous Australians, through education, attitude change and fostering appreciation of Indigenous cultures; 2) overcoming Indigenous disadvantage; and 3) achieving social justice for Indigenous people.

Reconciliation: Off Track - [2003] AILR 45; 8(3), Ch 2

Student Number: 9444911 Take Home Exam : Q.2

2. What are the objectives of reconciliation for indigenous Australians In his second reading speech, Tickner indicated that reconciliation was not to be viewed narrowly. The process of reconciliation has as its objective the transformation of Aboriginal and non-Aboriginal relations in this country.2 Thus, in determining whether a treaty is the best method to achieve reconciliation in Australia, the objective of reconciliation will be assessed against treaties, the human rights method and litigation to determine which is best suited to deliver reconciliation to indigenous Australians.

3. Treaties to achieve reconciliation A treaty is defined as:

an international agreement between States in written form and governed by international law3

Treaties could protect the political, legal, cultural and economic position of indigenous Australians on the terms of the agreement.4 Moreover, a treaty could act as a process to

Minister for Aboriginal Affairs, Second Reading Speech, Parliamentary Debates 30 May 1991 (AGPS, Canberra, 1991) According to the minister, reconciliation could be achieved with the assistance of the Council for Aboriginal Reconciliation (CAR). The object of CAR is the promotion of a process of reconciliation between indigenous Australians and non-indigenous Australians, based on an appreciation as a whole, of Aboriginal and Torres Strait Islander cultures, and fostering an ongoing national commitment to co-operate to address indigenous disadvantage. 3 Vienna Convention on the Law of Treaties, 1969, Art 2(1)(a) 4 Council for Aboriginal Reconciliation Final Report, recommendation 5.

Student Number: 9444911 Take Home Exam : Q.2 achieve the objectives of reconciliation; a method to ensure that all Australians are recognised by the polity; and, resolve unfinished business5.

The concept of a treaty has been opposed on the basis that by endorsing the term selfdetermination, it would create an environment that is inconsistent with the governments position not to apologise to indigenous Australians and could raise the possibility of indigenous society claiming they are a separate State or States.6 The government would be legally enforcing an instrument that would be divisive, would undermine the concept of a single Australian nation, would create legal uncertainty and future disputation7 For indigenous persons close to the debate, there is also some concern as to the benefit of exploring treaties before a right to self-determination has been established.8

However, many indigenous people and others in the broader community still see a treaty as fundamental to resolving unfinished business.9 Moreover, a treaty could include terms that formalise the legal positions of the Commonwealth, States and Territories with respect to indigenous people,10 and it is consistent with recommendation 5 in the Council for Aboriginal Reconciliation Final Report.

S Brennan, B Gunn and G Williams, Treaty Whats Sovereignty Got To Do With It? 2004 issues paper No 2 (Gilbert and Tobin Centre for Public Law) 6 Commonwealth of Australia (2002), Commonwealth Government Response to the Council for Aboriginal Reconciliation Final Report Reconciliation Australia Challenge (AGPS Canberra), 10 7 Ibid,19. Further, the govt said that itself and the community were not prepared to support any action which would entrench additional, special or different rights for one part of the community, (17). However, the govt was clearly prepared to allow this injustice to occur through inaction. 8 E Mabo Jr, (2002), A Treaty for Whom? (paper presented at Treaty Advancing Reconciliation conference, Murdoch University, 26-28 June 2002), 2 & 9. See G Nettheim & T Simpson, Aboriginal Peoples and Treaties (1989) 12 Current Affairs Bulletin 18, 22-23 for a more complete list of matters that require attention before a treaty could be successful. 9 M Dodson, (2001), An Australian Indigenous Treaty: Issue of Concern (paper presented at Limits & Possibilities of a Treaty Process in Australia AIATSIS Seminar Series, 20 August 2001); cited in McRae et al, p700 10 T Rowse, (2002), Indigenous Futures University of NSW Press, Sydney, 6

Student Number: 9444911 Take Home Exam : Q.2

This paper will now discuss some of the features of the human rights approach and litigation as they relate to reconciliation, and compare treaties with both approaches to determine whether treaties are best suited to deliver reconciliation.

4. A comparison of methods to achieve reconciliation. 4a.Human Rights Approach As exemplified by Sri Lanka,11 the human rights approach has been the traditional method for dealing with large scale human rights violations and pursuing reconciliation. However, this method continues to be constrained by its inherent legal and individualistic focus. The predominant focus of this method has been on fighting impunity for the commission of conventional human rights violations, rather than restoring indigenous rights.12

It is argued that the human rights methods substantive focus on individual violations and the legalistic manner in which these cases have been scrutinised, has artificially removed such cases from the social structure within which they took place.13 It is also argued that the human rights method may have been a politically acceptable method through which to address human rights violations during the late 1980s and early 1990s, but it lacked consultation and an acknowledgment of indigenous sovereignty and rights. The human rights movement has also contributed to a depoliticalisation of human rights issues, and it

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See McGregor, Lorna(2006) 'Reconciliation: I Know It When I see It', Contemporary Justice Review, 9: 2, 155 174 for a more complete discussion of the human rights approach in the Sri Lankan context 12 For example, extrajudicial killings, torture and involuntary disappearances. 13 McGregor, Lorna(2006) 'Reconciliation: I Know It When I see It', Contemporary Justice Review, 9: 2,155 174, 165 5

Student Number: 9444911 Take Home Exam : Q.2 is the view of this paper that the concerns raised by any one of these factors, are inconsistent with reconciliation.14

Given the above factors, the flexibility of a treaty and the ability to draw a treaty in terms that avoid the issues raised by the Sri Lankan experience and the belief that a treaty must be viewed in the broadest possible sense to achieve its ultimate objective,15 it is the view of this paper that treaties are better suited to achieve reconciliation than the human rights approach.

4b.Litigation and Statute Australian jurisprudence has displayed a predisposition to deprive indigenous people of their land, religion, culture and economic independence.16 The Bringing Them Home Report cites the views of Justice Brennan in Mabo, who summarises the affects of the common law on indigenous rights.17 The court's handling of indigenous atrocities in the context of native title has been criticised on the basis that the court got the history

Ibid, 165 M Dodson, (2001), An Australian Indigenous Treaty: Issue of Concern (paper presented at Limits & Possibilities of a Treaty Process in Australia AIATSIS Seminar Series, 20 August 2001); cited in McRae et al, p700 16 Van Boven, T, 1993: Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final report submitted by Mr Theo van Boven, Special Rapporteur, UN Doc: E/CN4/Sub.2/1993/8, at p 4. 17 The Human Rights and Equal Opportunity Commission, Bringing Them Home: The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, 1997, 649-50 According to [the line of cases which denied the existence of native title]... the common law itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which the land provided, vested the land in [the Crown]... without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Brennan J
15

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Student Number: 9444911 Take Home Exam : Q.2 wrong.18 Similarly, the reports of inquiries into aboriginal deaths in custody and into the separation of indigenous children from their families are strongly disputed.19

While Mabo illustrates that the common law may recognise indigenous rights when governments refuse to do so, Mabo and the majority of subsequent case law still refuse to acknowledge indigenous sovereignty and this suggests that indigenous rights have not been given full respect in litigation.20

Notwithstanding the gains made in Mabo and the Native Title Act 1993 in recognising indigenous rights, legislation has not always produced a fair process or outcome. This is highlighted by the frequent refusal to provide interpreters at all levels of the legal process. Notwithstanding that the basic right to an interpreter had been established under Article 14(3) of the International Covenant on Civil and Political Rights 1966, and reflected in some domestic documents like the Evidence Act 1929 (SA), s 14, Australia has remained inconsistent in its provision of interpreters. For example, in NSW, there are no accredited Aboriginal interpreters and no system of formal accreditation or training of Aboriginal interpreters.21 A lack of understanding and empathy of this nature is clearly not conducive to achieving reconciliation.

The Human Rights and Equal Opportunity Commission, Bringing Them Home: The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, 1997, 212 19 ibid, 222-232 20 See Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, Ward, Wik Peoples and Bodney and Bennell to see other case law not affording indigenous claimants full respect 21 New South Wales Aboriginal Justice Advisory Council (1999), RCIADIC, Review of NSW Government Implementation of Recommendations (NSW AJAC, Sydney), 2

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Student Number: 9444911 Take Home Exam : Q.2 A treaty can be distinguished from the common law and legislation because it is a blank slate with the potential to acknowledge, rather than dispute, indigenous sovereignty and afford formal recognition of a variety of rights. In this context, this paper takes the view that treaties have a structure better suited than the common law and legislation to deliver reconciliation.

5. Conclusion: A treaty is the best way to achieve reconciliation It is the view of this paper that treaties, because of their flexibility and their potential to restore indigenous sovereignty and rights through the terms of an agreement mutually accepted by all parties, offer the best solution to achieve reconciliation.

However, what is needed to move the debate forward is an awareness of what form a treaty might take and how it can be achieved. The key to determining the substance, purpose and process of a treaty is not obtained by revisiting the injustices of the past, but by exploring an open debate between indigenous and non-indigenous Australians about what a treaty could do for reconciliation in Australia and what could be included in the terms of such an agreement to facilitate reconciliation.

Student Number: 9444911 Take Home Exam : Q.2

Bibliography
Case law Bodney v Bennell [2008] FCAFC 63 Mabo v Queensland (No. 2) (1992) 175 CLR 1 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Ward v Western Australia (1998) 159 ALR 483 Wik Peoples v Queensland (1996) 187 CLR 1

Legislation Evidence Act 1929 (SA) Native Title Act 1993

International Documents International Covenant on Civil and Political Rights 1966, Vienna Convention on the Law of Treaties, 1969

Secondary Resources S Brennan, B Gunn and G Williams, Treaty Whats Sovereignty Got To Do With It? 2004 issues paper No 2 (Gilbert and Tobin Centre for Public Law) Commonwealth of Australia (2002), Commonwealth Government Response to the Council for Aboriginal Reconciliation Final Report Reconciliation Australia Challenge (AGPS Canberra) Council for Aboriginal Reconciliation Final Report, The Human Rights and Equal Opportunity Commission, Bringing Them Home: The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, 1997 M Dodson, (2001), An Australian Indigenous Treaty: Issue of Concern (paper presented at Limits & Possibilities of a Treaty Process in Australia AIATSIS Seminar Series, 20 August 2001) 9

Student Number: 9444911 Take Home Exam : Q.2 McGregor, Lorna(2006) 'Reconciliation: I Know It When I see It', Contemporary Justice Review, 9: 2, 155 174 E Mabo Jr, (2002), A Treaty for Whom? (paper presented at Treaty Advancing Reconciliation conference, Murdoch University, 26-28 June 2002) Minister for Aboriginal Affairs, Second Reading Speech, Parliamentary Debates 30 May 1991 (AGPS, Canberra, 1991) G Nettheim & T Simpson, Aboriginal Peoples and Treaties (1989) 12 Current Affairs Bulletin 18 New South Wales Aboriginal Justice Advisory Council (1999), RCIADIC, Review of NSW Government Implementation of Recommendations (NSW AJAC, Sydney) Reconciliation: Off Track - [2003] AILR 45; 8(3), Ch 2 T Rowse, (2002), Indigenous Futures University of NSW Press, Sydney, Van Boven, T, 1993: Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final report submitted by Mr Theo van Boven, Special Rapporteur, UN Doc: E/CN4/Sub.2/1993/8,

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