Sullivan, Patrick --- "From Land Rights to the Rights of the People" [1996] AboriginalLawB 71; (1996) 3(85) Aboriginal Law Bulletin 16

From Land Rights to the Rights of the People

By Patrick Sullivan

This conference will have heard a lot about Indigenous peoples' special relationships to land, and about Indigenous rights in land in both traditional cultural terms and as a contemporary recognition of human rights. One dimension of Aboriginal rights that commonly goes astray when we discuss land rights or native title rights is the political right of self-governance that is, or should be, bound up with concepts of land rights. It is the right of separate and distinct peoples to political and economic self-determination. National governments are keenly aware of the ways in which collective rights over land, sea and natural resources are bound up with political rights to self-government. In Australia our approach has always been to head off any deep consideration of this issue by recognising land rights and in the same process regulating, circumscribing, and taking control of them. This paper will firstly offer some thoughts on the necessary relationship between collective rights in land and the rights of sovereign peoples, then comment on the lack of progress in recognition of this relationship in Australian domestic politics. This is contrasted with the advances in Australian thinking in international forums where the world's Indigenous peoples consciously represent themselves as peoples to others who just as consciously represent themselves as states. The paper will conclude by pointing out the need to begin consideration of the relationship between Aborigines and non-Aborigines anew in Australia, with the recognition of the continued existence in Australia of distinct Indigenous peoples with sovereign rights.

Anthropology as a discipline has always recognised the link between territoriality and Indigenous political systems. Indeed, it is often forgotten that when Radcliffe-Brown produced the concept of an estate, over which an Aboriginal descent group held absolute sway, he felt himself to be discovering also the prehistoric origins of the state. Radcliffe-Brown said that the Aboriginal land-using `horde' `has some of the qualities of corporate ownership, but also partakes of the nature of the relation of a modern state to its territory, which we may speak of as the exercise of `dominion'. Rights of ownership over land and rights of dominion have seemingly both had their origin by development and differentiation from such a simple relation as that exemplified in the Australian horde ` (Radcliffe-Brown 1934-5:288, cited in Gumbert, 1984:74).

Although Radcliffe-Brown's model of land tenure, in which all pre-contact Aboriginal groups consisted of patrilineal descent groups owning defined estates and jointly exploiting land in what he called `hordes', has proved too simple to be accurate, this quote is a useful reminder of how much of the political dimension has been stripped from current theories of Aboriginal land use and ownership. I feel this has happened for two reasons.

The first is that a more sophisticated understanding of Aboriginal land use has developed, particularly in the last two or three decades, and hand in hand with this has gone a re-examination of Aboriginal political life. The model of a clan group with a distinct territory fits well with assumptions of decision-making by a council of elders, under the leadership of a headman, which directs the community of women and young males. Elements of this model can be found in the work of Elkin and later Berndt (Elkin, cited in Berndt, 1965:167). Actual community political dynamics are, of course, considerably more complex than this. As the clan/horde model came under scrutiny (Hiatt 1962, Meggitt 1962, Stanner 1965, see also Gumbert, 1984:74-6) so did its corollary in political life. Hiatt summarised contemporary approaches well in his Aboriginal Political Life (Hiatt, 1986). Myers work is also highly significant, doing away with ideas of a formal structure and replacing it with a dynamic of `relatedness' and `autonomy' which produce the line of tension along which intra-group political activity occurs (Myers, 1986).

As these studies show, Aboriginal political organisation has always been regarded as part and parcel of Aboriginal land relationships by scholars. However, this more flexible and sophisticated analysis of how it works in practice (which we could complicate further by introducing elements of adaptation to white society, see Sullivan 1996a) is very difficult to use in any practical and administrative way to provide regulations for community self-determination in the same way that they have been provided for land rights and native title rights.

This is the first difficulty met, leading to the parting of ways between political rights and land rights in the wider Australian polity. The second reason for this, I suggest, is not only that it is difficult to conceptualise Indigenous forms of political authority, but also that it is difficult for states to come to terms with them. Put crudely, statist ideology says that states embody national populations and have relations with other states. peoples can only be dealt with to the extent that they mimic states. If you will permit me to draw some very broad brush strokes, it can be said that the modern European form of the state was in the process of historical evolution when the various technological and commercial accidents of history came together to permit worldwide colonisation by European powers (See eg Falkowski, 1992; Hale, 1993). At the end of this five hundred year period the European type of state had become the dominant form of political organisation. Post World War II decolonisation was essentially a legal exercise in creating states on the European model to which formal independence could be granted. Some of these were already state-like social and political entities at the time of colonisation, many others were not. It made no difference, states were created. However, the problem that we now face world wide, is that of peoples embedded within states who have no less right to decolonisation and political autonomy, but for whom the creation of states may be impossible or undesirable.

Colonial powers did not want to grant independence to their colonies. They were forced to it by a complex of circumstances at the end of the Second World War. It is noteworthy that the Committee of 24 set up by the United Nations to oversee the process did not contain any representatives of the colonised. Now that decolonisation is a fait accompli with which all states have learned to live, it is hard to remember that many hoped to manipulate this committee to stall and control the process. It remains to be seen whether the tide of events will again be too strong for the later stages of decolonisation, the decolonisation of embedded peoples, to be resistible, this time not only by ex-colonial masters but by many of the newly decolonised states themselves. In Australia, this slowly unfolding drama goes unremarked because the situation is felt to be so firmly under control. It is not our way to come to terms with the rights of Aborigines as a separate and distinct people in the same way as they do in New Zealand/Aotearoa, for example. The mechanism of control is by the absorption of those elements of Aboriginal culture that can be readily translated into mainstream Australian administrative forms such that Aborigines continue to be treated as a problem within the Australian polity, rather than one that occurs between it and a separate group. The Land Rights (NT) Act 1976 (Cth), the ATSIC Act 1989 and the Native Title Act 1993 (Cth) are all successful examples of this.

All of these acts of Parliament have, or will, produce substantial material benefits for Aboriginal people, but at a price, the price of autonomy. I will not here reproduce the criticisms of ATSIC that the present government so precipitously took up when gaining power, since they are largely wrong. ATSIC is an organisation struggling to service a massive problem of underdevelopment in a culturally appropriate way. It replaced two administrative bodies (the DAA and ADC) and one Indigenous political forum (the NAC) which had its provenance in movements for a national independent form of political expression. Analysis of both the way that ATSIC operates and its structure under the ATSIC Act 1989 (see Sullivan, 1996b) show that its political representative function has been sidetracked by its development role. This has two aspects. The first is that to give elected Aboriginal representatives only the task of distributing government grants is a poor substitute for self-determination.

The second is that dependency and control are further institutionalised because of political sensitivity to the expenditure of public money by and for Aborigines. ATSIC, struggling as it is to meet practical needs in an effective manner with the twin constraints of inadequate resources and government meddling, cannot meet the needs of expressing the political organisation of Australia's Indigenous peoples. Nevertheless, the structures that might have been expected to arise out of recognition of Aboriginal land rights actually fare much worse.

The Land Rights (NT)Act 1976 allows for the creation of trust bodies to hold the land granted to successful claimants under the Act. It also establishes land councils (the sponsors of this conference) whose responsibility it is to consult with traditional land owners over use of their land and to administer the distribution of benefits. The trust bodies that hold the land have no other function. Most activity in meeting the terms of the Act in relation to use of Northern Territory Aboriginal land occurs with the Land Council as the intermediary between a development proponent and the Aboriginal owners. The organisations that run community life on the land and receive grants from ATSIC and in some cases royalty benefits are not the trust bodies but are generally established under the Aboriginal Councils and Associations Act 1976, about which more will be said below.

The Native Title Act 1993, on the other hand, stipulates in Division Six that the affairs of common law native title holders should be administered directly by a body corporate prescribed by the Regulations to the Act, determined as the prescribed body by the court, and registered with the title so as to become the Registered Native Title Body Corporate. This body can perform either as an agent or as a trustee for the common law title holders, and may in some circumstances be established by the court itself. In the Act it is not necessary that the body corporate acting for the land owners be made up of landowners, or indeed have any land owning members. The Regulations, however, do stipulate that the membership should only be landowners, and also that the body must be incorporated under the Aboriginal Councils and Associations Act 1976.

Considerably more could be said about the land holding mechanisms of both the Land Rights (NT) Act and the Native Title Act, but I do not want to stray too far from the main point. This is that the self-governing political body associated with land ownership in traditional society becomes, by the operation of both acts, an administrative structure firmly regulated by Australian law, founded on European cultural principles, and primarily concerned with mundane matters of grant administration.

The Aboriginal Councils and Associations Act 1976 allows for the creation of both Councils and Associations, but in practice no Councils have been allowed to come into existence and I will therefore confine my comments to Associations (which, the Act stipulates, once incorporated must be called Aboriginal Corporations). The process anticipated in the assumptions underlying the Act is this:

`There is already in existence a voluntary association like any other familiar to Australian law, lets say a tennis club or a knitting circle. The association wishes to incorporate under the appropriate Act so as to receive whatever benefits there are of having legally corporate status. The association provides information on who its governing committee is, what its rules are, what are its aims and objects, who its members may be. As long as these don't conflict with the terms of the Act it is duly incorporated and registered and is bound by the terms of the Act'.

Were it not for the fact that Aboriginal Corporations have become such a feature of the Aboriginal affairs landscape that we are as familiar with them as we are with the appalling material conditions that they administer, such an approach to the provision of a legally recognised entity reflecting community governance would be stunning in its inappropriateness, cultural arrogance, crudeness, institutionalisation of outside control, and sheer unworkability. In a recent report on the Prescribed Bodies Corporate that will hold native title land, and the problems with the Aboriginal Councils and Associations Act 1976 I wrote:

`there are clearly numerous elements of the ACAA that contravene custom, and possibly therefore the common law rights that derive from this. Yet many of these provisions have been seen to be necessary for the efficient and accountable operation of Aboriginal corporations. To remove them could be tantamount to allowing Aboriginal corporations to do anything they like in respect of their members and society at large. The difficulty arises because the ACAA goes further than the regulation of a corporate body to the regulation of entire social communities'.

Not surprisingly there is a clash of norms and concepts of right, and the effect is widely experienced as culturally oppressive. The situation can, briefly, be said to have arisen like this: there is a need for a corporate expression of an Aboriginal commonality (today, common law native title holders). There is also the need for corporate bodies that manage Aboriginal needs in a manner compatible with self-determination.

Entirely inappropriately, the European model of a voluntary association is applied to cope with both these needs at once. There is assumed to be an `association' already in existence with common purposes that wishes to incorporate. Membership and leadership are natural products of the fact of an association. On incorporation the association is required to meet certain norms of corporate behaviour for the good of members and the general public. In this way an entire community, with deeply felt sets of social relationships evolved over millennia, is required to assimilate to a narrow and formal series of requirements that are not appropriate to their social characteristics.

The critical point here concerns the concept of membership. If the requirement is simply to have a fair and efficient management body there is no need for a membership. By introducing a membership on the model of a voluntary association the aims of incorporation are obscured and the `membership', i.e. the community, itself subjected to inappropriate scrutiny and regulation. Not surprisingly, in most cases the membership and governance arrangements of the corporation do not begin to reflect the complexity of the community. If, on the other hand, the requirement is simply to have an institutional reflection of the community much greater attention needs to be paid to it's structure in the first place, and regulation of a social community as is required by the ACAA is more clearly seen as assimilationist, oppressive and inappropriate (Report to the ATSIC Native Title Branch, June 1996).

Most of these matters are now under review and the Aboriginal Councils and Associations Act 1976 may be amended. My purpose is not principally to criticise it, but to put it in the overall context of the burden of this paper, which is the identification of the means by which an independent and sovereign people are colonised. The twin elements of the ownership of territory and their governance of themselves are sundered. The first is belatedly recognised by bestowing property rights recognised and limited by Australian law. The second is swept aside with corporate legislation appropriate to European institutions of trusts, voluntary associations, and statutory representative organisations. Yet, as the Australian Law Reform Commission report into customary law attests, as numerous heritage controversies remind us, and as those of us involved in Aboriginal life daily encounter, an Aboriginal system of governance still exists side by side with the imposed colonial system. Is there any wonder that Aboriginal affairs continues as the running sore of Australian politics while political accommodation between the two systems founders in this negation?

I would now like to turn to a process driven by forces beyond Australia's borders, in which Australia takes a leading role, which is predicated on entirely different principles, and which we need to become more aware of in order to bring some truth and common sense to this `Alice through the Looking Glass' world produced by Australian law.

Every year Australian Aboriginal groups journey to the UN Working Group on Indigenous Populations where they combine to represent Indigenous Australia to the member states of the UN, among which is the Australian state. The WGIP was founded in 1982 by a resolution of the United Nations Human Rights Commission as a result of worldwide mobilisation of Indigenous groups for greater recognition of their human rights. It is a working group established by the Economic and Social Council under the supervision of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (Iorns, 1992:204-209. See also Sanders, 1989; Alfredsson, 1989). The WGIP is a body of experts in international law and Indigenous issues required to meet annually and principally consider two matters--human rights standard setting in relation to Indigenous peoples, and to report on developments concerning Indigenous peoples. It is not a forum for complaint. Still less is it a representative forum. The wary way in which states have approached the question of Indigenous rights can be seen not only in the WGIP's limited and conservative charter and relatively low institutional status, but more particularly in the choice of its name. Right from the start states recognised the political motivation behind Indigenous peoples' pursuit of their human rights, linked this rather simplistically to the International Convenants on Economic, Social and Cultural Rights and Civil and Political Rights both of which state unambiguously that all peoples have the right to self-determination. States representatives repeatedly put the view that Indigenous people are not `peoples' in this sense but populations embedded within sovereign states, hence the title of the WGIP. The Sub-Commission later subverted this hardline approach by allowing agenda items and reports involving the WGIP to replace the word `populations' with `peoples', but without changing its name (see Iorns, 1992:202, note 15). This admirably pragmatic decision has allowed wrangles over terminology to lie in abeyance while the issues that give rise to them are debated.

At this stage the debate is considerably advanced though, as we will see, some states lag behind in understanding it. The WGIP has become the most open forum of the UN, with the expert committee giving considerable freedom to any Indigenous group to attend and speak. Some member governments, including Australia, also regularly attend and contribute. This has given the WGIP something of the appearance of a complaints body which satisfies, to some extent, Indigenous aspirations. Under its responsibility to review developments, Indigenous groups effectively criticise their own governments on the international stage. This aspect of the WGIP has had one generally positive consequence and some that are less so.

The first is that over the last fourteen years Indigenous representatives have forged themselves into loose coalitions of worldwide spread and developed skills in the complex world of international diplomacy and use of the United Nations. This has come at a price. It could be said that Indigenous peoples have put the limited energy and resources available to them into this forum at the expense of potentially more fruitful genuine complaints forums, such as the committees overseeing the various human rights conventions which their states are a party to. At the same time they have largely failed to translate international criticism of member governments into domestic political pressure. One reason that this has come about is a simple accident of history. In its fourth year the WGIP began its standard setting function by drafting principles for inclusion in an International Declaration on the Rights of Indigenous peoples (Iorns, 1991:207). This was seen as such an important long-term project by many Indigenous leaders that attendance at the WGIP was guaranteed, thus cementing in place also its simultaneous use as a quasi-complaints forum. On the positive side, the intense and detailed debate over the subsequent eight annual sessions of the WGIP, word by word and article by article of the draft Declaration has allowed considerable elaboration of international law principles concerning Indigenous peoples and given the Indigenous peoples themselves primary expertise in their own human rights law and methods of its implementation.

Not surprisingly, the bête noir of statists, the right to self-determination, reared itself early in the process and was (and remains) the single most contentious item of debate (the entirety of Iorns highly detailed 1992 study is devoted to this question). I will turn in a moment to the contribution that Australia has made to the international understanding of the right of Indigenous peoples to self-determination. Let me first bring this very brief outline of international Indigenous political activity up to date. The expert committee finished its deliberations on the draft of the declaration with a considerable degree of consensus among states representatives and Indigenous groups at its twelfth session and the draft passed to its parent body, the UN Commission on Human Rights which has set up another working group to bring the draft to a form that can be passed by the General Assembly. This body, which met for the first time last November, was to be called the Open-ended Inter-sessional Working Group on a Draft United Nations Declaration on the Rights of Indigenous peoples, but had hardly got beyond the election of a Chairman before this was challenged. Some states felt the title pre-empted what the Declaration was to include. However, the draft had gone to the UNCHR under such a title, had appeared on all agendas and minutes as such, and had thus found its way into the title of the new working group. The Chair rapidly moved to cut short a premature debate over self-determination by suggesting the group should be called `the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32'. Another supremely pragmatic move, since this resolution includes that terrible word `peoples' but the new working group title is cleansed of it.

Those attending this first meeting were initially dismayed at the thought of retracing the debate in such a pedantic manner. It appeared that here at last mainstream governments were moving to take control of the process. No longer thinly represented largely by `do-gooder' nations and the occasional recalcitrant, as at the WGIP, these appeared to be the heavy-weights who would fight the declaration word-by-word in a committee process much more structured in their favour. As it turned out the session went the other way. Many member governments showed themselves to be in ignorance of the meaning of the various articles, ignorant of human rights law (particularly on the question of collective human rights), and unaware of the debates that had been elaborated under the guidance of the expert committee. The Indigenous representatives, on other hand, honed by years of fighting out these very questions reminded the states time and again of their very thin grasp of the issues. This first session was devoted to a general familiarisation with the principle of the various articles and produced no concrete result, but it became very clear to observers that here for the first time Indigenous peoples were clearly articulating their rights as peoples face to face with the equally clear intent on the part of states to deny, reduce or obfuscate such rights. Firmly, forcefully, and at times aggressively the representatives of peoples directly challenged the representatives of states. States now find themselves in the sort of moral double bind that the Australian state itself has grappled with at least since 1967. Human rights must be recognised, reconciliation must be achieved, conflict and lack of consensus will be embarrassing, lack of progress almost as much so, yet political concessions must be minimised or, so the states appear to believe, chaos looms.

Through all of this the Australian voice occasionally intervenes, calm, moderate, and considerably more enlightened than its domestic counterpart. The Australian position is complex because it needs to meet a number of requirements and it often has contradictory elements, but it has within it the seeds of a much more useful approach to domestic problems than is currently being pursued. Firstly, the Australian government needs to work within an understanding of self-determination in international law and its applicability to Indigenous groups that have a far more advanced level of autonomy than Australian Aborigines. If their statements did not address these questions they would be inconsequential. However, their suggestions also need to be in line with Australian practice and government policy. The tension between these two requirements produces an interesting ambivalence. At least since 1992 the Australian government has been proposing some form of freely-determined political relationship between Indigenous peoples and the state, but at the same time stepping back from the consequences of this for Australia itself. The approach can be summarised as follows:

Indigenous groups are clearly peoples in any ordinary meaning of the word. They are also peoples in international law particularly as it relates to the law of self-determination. However, understanding of the meaning of self-determination is constantly evolving and it must not be understood to mean sovereign independence in all cases. Complementary law, such as the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, provides adequate safeguards against any interpretation of human rights law as providing the legal foundation for secession. The term `peoples' and the concomitant right to self-determination can therefore be embraced without fear. While the meaning of self-determination in the post-colonial era remains to be elaborated it has at least two elements in the Australian view. Indigenous self-determination is exercised firstly by free and equal access to all the rights, services and public instrumentalities that other citizens of a state enjoy, including full participation in democratic processes. Secondly, short of secession unless it is mutually agreed, self-determination of Indigenous people is established by the political relationship they enter into as separate and distinct peoples in the states within which they live (see Australia, 1992:2-4; Australia, 1993:1).

The statements sometimes retreat from this emphasis on a political relationship between peoples by reiterating that self-determination is also exercised through democratic participation in mainstream politics, and they often address the second aspect by suggesting that ATSIC meets the requirement for the political expression of Aborigines as a `separate and distinct' people. Nevertheless, Australia also supports Article Three of the Draft Declaration on the Rights of Indigenous peoples which states that `Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development'. As recently as November 1995 the Australian government delegation stated that it `considers that self-determination encompasses the continuing right of peoples to decide how they should be governed' (Australia, 1995:2). This statement also suggested that this doctrine has wider applicability, not just for Indigenous peoples but for all peoples, with the implications not only that it is a way forward in ethnic conflict (the current Balkan situation may be foremost in the mind of those elaborating this doctrine) but that if it is not implemented such conflict is encouraged (Australia, 1995:3).

The Australian government delegate stated in 1995, that `in the Australian context, self determination will be worked out within national boundaries and through the establishment of represe ntative Indigenous bodies, such as the Aboriginal and Torres Strait Islander Commission' but he went on to say:

`Australia considers that self-determination encompasses the continuing right of people to decide how they should be governed, the right to participate fully in the political process and the right of distinct people within a state to participate in decisions on, and to administer, their own affairs. This approach is particularly relevant in the present world situation of frequent conflict within states. clearly, sovereign independence is not feasible for every self-defined people. Attempts to pursue exclusive political arrangements lead too often to blood shed and fragmentation. A concept of self determination within existing state boundaries, involving the full observance of individual and group rights, holds out a better hope of ensuring stability, human development and human security. It follows from this that Australia does not have difficulty with the use of the word `people' and a reference to `self-determination' in the draft [Declaration] (Australia, 1995:2-3).'

Bearing in mind my analysis at the beginning of this paper, you would be forgiven for wondering if we are living in the same country as these enlightened intellectuals of the Department of Foreign Affairs and Trade. I would like to conclude by questioning how these Australian government policies, which have been founded on substantial debate in the wider world, can begin to be implemented in their country of origin. This question could usefully be considered in the workshop session that is to follow this presentation. I think there are two main areas of contemporary social change in Australia that will lead us to deal with Aboriginal questions in the way proposed by our international representatives by the end of the century.

The first of these is the increasing need to find a new approach to relations between Aborigines and whites, since past approaches, whatever benefits they may have delivered, have all left a residue of seemingly intractable problems. The new approach may arise out of an increasing willingness of Australia to understand its relationship with Aborigines as founded on an act of particularly harsh and unjust colonialism. The Mabo judgment, the debate over unilateral extinguishment of legal title without compensation, and the beginnings of an understanding of the misery produced by the policy of mass removal of children from their families, all indicate a shift in perspective towards an understanding of current problems as produced out of the unsuccessful political and constitutional accommodation between the original peoples and their colonisers.

Secondly, this new consciousness is arising while Australia examines its own political institutions as it approaches the centenary of federation. The debate over the need for a republic and for constitutional change, coupled with new ideas of federalism and regional responsibilities combine favourably with the recognition of the need for reconciliation with Australia's Aboriginal people. These are opportunities waiting to be seized. A lasting accommodation will probably be founded on autonomous regional Indigenous structures integrated with Australian government and administration in ways appropriate to each area, as well as effective national representation. Nevertheless, the first step could be the creation in Australia of an independent Indigenous forum that can consider matters of the proper relationship between Australian Indigenous peoples and the state, founded on constitutional reform, just compensation and recompense for past wrongs, and domestic mechanisms for monitoring and reporting on Australia's fulfilment of its Indigenous human rights responsibilities.