STUCK BETWEEN A ROCK AND A HARD PLACE: RECOGNIZING INDIGENOUS LAND CLAIMS IN A WESTERN LEGAL SYSTEM

STUCK BETWEEN A ROCK AND A HARD PLACE: RECOGNIZING INDIGENOUS LAND CLAIMS IN A WESTERN LEGAL SYSTEM. * Emily Kelleher

This article argues that the Western common law legal tradition implemented in a modern Australia should recognize Indigenous land claims. This recognition would follow a comparable development and recognition of the rights and interests provided to the United States’ Native Americans through treaties. Australia, in developing this more accommodating land system, must ensure that native title would receive the same status and protection as other recognized common law land interests. This essay evaluates the historical processes of both Australian and United States jurisdictions, both sharing British origins, and how the current applications of Indigenous land rights differ. Secondly, this essay argues that Australia’s modern system and subsequent developments of indigenous land claims is disadvantageous in comparison to that of the United States’. Finally, the importance of self-determination in indigenous traditions will be discussed in accommodating land claims within Australia. To begin, this article will detail the history and development from colonial periods in Australia and the United States. A discussion about the significance of these developments in shaping indigenous land claims in each legal system will follow.

HISTORY AND DEVELOPMENT

In most countries of the world there have often been more disadvantages afforded to indigenous legal traditions, especially those subject to the processes of colonization. Indigenous legal traditions in this sense are those established from a time prior to this colonialization1. Australia’s history began by pushing its Indigenous people and their culture aside in order to establish British legal traditions2. It was inevitable that they started from a legally inferior position compared to the United States’ Native

1 Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford University Press, 5th ed, 2014) 62. 2 Dan Tarlock, ‘Australian and United States Law of Aboriginal Land Rights: A Comparative Perspective’ (1999) 1 Vermont Journal of Environmental Law 51, 54.

Americans as Australia was declared terra nullius3. Indigenous Australians had no legal basis to make land claims against the Crown as they were not recognized as possessing such rights4. It wasn’t until 1972 that indigenous property rights were recognized when the Whitlam Labor government enacted federal laws acknowledging them; this occurred after the acknowledgement of the rights of Indigenous people in 19675. In Attorney-General v Brown6, Stephen CJ held that Australian lands were, from the time of its first settlement in 1788, the Crown’s possession in which property could be granted to its subjects only. Even up to 1979, the High Court of Australia ruled that the country was lacking civilization prior to 1788, disregarding any merit of indigenous legal traditions7. The landmark Mabo8 decision in 1992 finally recognized a form of native title that had not been extinguished by colonization9. This case will be discussed in more detail later in the article.

The reason why Australia developed at such a rigid pace was a result of the court’s application of the doctrine of continuity placing a burden on Indigenous claimants to prove they had a normative system prior to Crown acquisition10. Difficulties arise here as many Indigenous claimants are so far removed from their original spaces that they cannot establish these connections. This is a result of the forced assimilation policies implemented by colonial Australia. In comparison, the United States applied the doctrine of discovery when recognizing indigenous land rights in Johnson v McIntosh11. Marshall CJ explained that Native American tribes were the rightful occupants of the land with the rights of possession and use, however, they could not exercise the power of disposal of the land as this power was based on the principle that discovery gave exclusive title12. Rather than completely denying any validation of their indigenous legal traditions as Australia did, the United States

3 Ibid 59. 4 Ibid 58 5 Ibid 55, 56; Matthew Thomas, ‘The 1967 Referendum’ Parliament of Australia (Web Page) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagP ost/2017/May/The_1967_Referendum>. 6 (1847) 1 Legge 312. 7 Tarlock (n 2) 58; Coe v Commonwealth (1979) 53 ALJR 403. 8 Mabo v State of Queensland [No 2] (1992) 55 ALJR 408 [432]. 9 Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal 57, 72. 10 Kent McNeil, ‘Judicial Treatment of Indigenous Land Rights in the Common Law World’ in Benjamin J. Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 257, 265. 11 21 US 681 (1823). 12 Angela R Riley, ‘The History of Native American Lands and the Supreme Court’ (2014) 38(3) The Journal of Supreme Court History 369, 372.

provided them with constitutional status13. However, this recognition came at a cost. When British colonialists came to the United States, they saw the opportunity of ‘gifting’ their legal traditions upon Indigenous people who already had their own14. In exchange for their lands, Native Americans would be afforded the opportunity of becoming more ‘civilized’15. Treaties were made with some Native American nations during the 18th century generally to make them allies during the wars16. The United States’ aims became essentially assimilationist after this period.

During the 19th century, these treaties were used to constrict tribes to smaller amounts of land due to pressures of white settlers and mineral exploitation17. It was promised that in removing these tribes from their land base, they would be allowed to live together without interference, away from the encroaching settlers18. Similar to Australia, it was believed that the indigenous population would either be exterminated or assimilated19. During this century, Marshall CJ in Cherokee Nation v Georgia20 held that the Cherokee Nation was a ‘domestic dependent nation’ where they were provided with quasi-sovereignty with considerable autonomy against the states21. His following decision in Worcester v Georgia22 held that the states could not impose regulations on Native American land. The 20th century saw Native Americans becoming wards of the government with policies aimed at detribalization23 . Lone Wolf v Hitchcock24 held that Congress had a special fiduciary relationship with tribes25. Assimilationist policies stemming from the governments of both jurisdictions limited indigenous land claims in a Western legal tradition. Comparatively speaking, the United States’ indigenous nation enjoyed more legal recognition and rights than Australia’s and continue to today.

13 Tarlock (n 2) 56. 14 Brian W. Dippie, The Vanishing American (University Press of Kansas, rev ed, 1991) 61. 15 Ibid. 16 Siegfried Wiessner, ‘American Indian Treaties and Modern International Law’ (1995) 7(3) St. Thomas Law Review 567, 570. 17 Ibid 571. 18 Angela R Riley, ‘The History of Native American Lands and the Supreme Court’ (2014) 38(3) The Journal of Supreme Court History 369, 374. 19 Dippie (n 14) 224. 20 30 US 1 (1831). 21 Tarlock (n 2) 56. 22 31 US 515 (1832). 23 Augie Fleras and Jean Leonard Elliott, The Nations Within: Aboriginal-State Relations in Canada, the United States and New Zealand (Oxford University Press, rev ed, 1992) 142. 24 187 US 553 (1903). 25 Riley (n 18) 375.

LAND CLAIMS

It may be possible to recognize indigenous land claims within Australia, but this would be a gradual process. The motivation for adopting the tenure system within Australia was Crown control26. If the common law legal tradition assumed that the Crown held absolute ownership, it could eradicate any pre-existing ownership27 . Although the United States shared a British foundation in the feudal system, its land ownership operates under more of an allodial system where the title to property exists independently in the people rather than in specific rights conceded to the government28. In 1993, the Keating administration enshrined the doctrine of native title into federal legislation with compensation funds to provide to those whose land had been alienated29. As mentioned earlier, Mabo was a groundbreaking departure from the terra nullius doctrine extinguishing any type of pre-colonization land claim30 . The majority of the High Court favored a rationale that paid regard to the relationship of the government and Indigenous Australians31. They also considered their circumstances in a context where the extinguishment of native title would be to deny remedies at common law32. While the court established that native title to land was recognized, it also held that the Crown had power to extinguish this title33. Native title was the common law’s response to the historic conflict between indigenous land claims and those of the settlers34. Although this case was significant for the recognition of Australia’s First Nations peoples, subsequent cases made it difficult for Indigenous claimants.

During Howard’s administration, any move acknowledging Australia’s Indigenous population as the nation’s First Peoples was opposed35. Indigenous rights over leasehold land accorded to them by the Wik36 judgement was limited and there was opposition towards the implementation of a treaty similar to the effect of the United

26 Samantha Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 Melbourne University Review 1, 2. 27 Ibid. 28 Ibid 33. 29 David Day, Claiming a Continent: A New History of Australia (Harper Perennial, 4th ed, 2005) 395396. 30 Wiessner (n 9) 72. 31 Richard Bartlett, ‘The Aboriginal Land which may be Claimed at Common Law: Implications of Mabo’ (1992) 22(2) University of Western Australia Law Review 272, 276. 32 Ibid. 33 Christopher Staker, ‘Australian Cases Involving Questions of Public International Law’ (1994) 14 Australian Year Book of International Law 321, 324. 34 Ibid 295. 35 Day (n 29) 417. 36 Wik Peoples v Queensland (1996) 134 ALR 637.

States’ acknowledgement of national status within certain tribes37 . Subsequent cases to Mabo have led to claimants having to prove their rights in relation to the land by reference to specific laws and customs shared at the time of colonization38. This can be quite difficult when the common law legal tradition gives more weight to written evidence of settlers as opposed to the continuous oral history of most indigenous traditions39. Legislation requires that claimants prove that their connection with the land was substantially uninterrupted since colonization40. Once a clan or group abandons their traditional laws and practices the land connection cannot be revived41. This brings difficulties for many Indigenous Australians because, as a direct result of colonization, they were forced to alter their lifestyles for survival42. In a case decided in 2008, it was held that the cause of the loss of connection and observance was irrelevant43. So far, the High Court has refused to anticipate the continuation of rights other than those in relation to land to avoid the possibility of an indigenous self-government44 .

In comparison, Native American claimants need not prove occupation of land at the time of assertion of sovereignty, rather, their proof of occupation for a long time is sufficient45. Their land rights were more appreciated in comparison to the late acknowledgement of Australian indigenous traditions as the United States had to confront their existence early in establishment rather than deny it46. The United States is often viewed as a role model in their legal framework for the recognition of indigenous legal traditions47. Most land claims are settled as a result of United States federal policies48. Many Native American Nations can claim off-reservation hunting and fishing rights49. In comparison to Australia, traditional and non-commercial

37 Ibid. 38 Western Australia v Ward (2002) 191 ALR 1 [89-93]; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. 39 McNeil (n 10) 290. 40 Native Title Act 1993 (Cth) s 223. 41 McNeil (n 10) 276. 42 Ibid. 43 Bodney v Bennell [2008] FCAFC 63 [96-97]. 44 McNeil (n 10) 270. 45 Ibid 275. 46 Tarlock (n 2) 54. 47 Ada Deer, ‘Tribal Sovereignty in the Twenty-First Century’ (1997) 10 St Thomas Law Review 17, 23. 48 Tarlock (n 2) 54. 49 Ibid 55.

hunting and food gathering is protected under statute for Indigenous persons50 . Some national parks are held in joint management with Indigenous Australians such as Kakadu and Uluru providing for ownership and lease-back of the land51 . Regarding environmental upkeeping, Indigenous Land Use Agreements under the Native Title Act allows claimants to enter into resource management52. Due to the developments in land claims and the inherent difficulties for Indigenous claimants within the common law system, Australia should look at modelling its system after the United States’ allodial system. This would afford more autonomy and to an extent a level of self-determination to indigenous traditions. This would provide some reconciliation of Australia’s poor history with its First Nation’s people.

SELF DETERMINATION

Providing a level of self-determination to indigenous legal traditions would assist in the recognition and understanding of why land claims are crucial to our First Nations communities. Blackburn J decided in Milirrpum53 that the communal title Indigenous people held to the land prior to settlement was not recognized by the common law54 . For almost all indigenous traditions, a collective identity is crucial. The rights of a collective go against individualistic Western legal traditions55. Under indigenous traditions, both Native Americans and Indigenous Australians shared the idea of a closely integrated network of family, kinship and social relations as being integral to one’s personal identity and place in society56. There were structures of authoritative figures within tribal groups and processes of common will formation57. However, to the Western legal traditions they were not valid as these traditions incorporate the rights of the individual and so individualism was encouraged amongst Indigenous peoples58. The concept of self-determination should be applied to a distinct collective of people sharing indigenous traditions such as those in Australia and the United States.

50 Benjamin J. Richardson, ‘The Ties that Bind: Indigenous Peoples and Environmental Governance’ in Benjamin J. Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 337, 357. 51 Ibid 365. 52 Ibid; Donna Craig, ‘Native Title and Environmental Planning: Indigenous Land Use Agreements’ (2000) 17(5) Environmental and Planning Law Journal 440. 53 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. 54 Staker (n 33) 321. 55 Wiessner (n 9) 120. 56 Ibid 121. 57 Ibid. 58 Christine Zuni Cruz, ‘Law of the Land – Recognition and Resurgence in Indigenous Law and Justice Systems’ in Benjamin J. Richardson, Shin Imai and Kent McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, 2009) 315, 320.

There should be a level of governmental legitimacy within Indigenous communities affording them the option for action rather than strictly enforcing a different legal tradition upon them; especially one that goes against notions of community59. The United States have recognized Native American tribes as independent and distinct political entities affording them certain legislative powers60 and Australia should follow suit. International instruments also recognize the right for Indigenous peoples to belong to their own community or nation61 and all peoples are to have the right to self-determination62. With gradual adaptions of Western legal traditions, it has been possible to recognize distinct entities within indigenous legal traditions and it will be imperative to recognize the communal rights attached to them.

SOLUTION

Australia should gradually adapt to a system that can balance recognizing indigenous land claims and maintaining private land ownerships. Samantha Hepburn proposed the solution of Australia adopting an allodial structure similar to the United States’ where land is held independently of a superior figure such as the Crown63 . This title would be subject to legal limitations and human rights conferred by international covenants but would share a similar agreement as treaties and private land contracts64. Under an allodial system, native title would have more security and cultural independence providing options for the choice of an indigenous tradition for our First Nations People65. Native title would hold more security as extinguishment would no longer depend on the status of a Crown title66. A reconciliation process through negotiations should be implemented if there are conflicting common law interests rather than the mere extinguishment of native title67. This system should hold native title rights as equal to other common law property interests68. This system would provide a stable base for the continuation of communal rights within

59 Wiessner (n 9,) 117, 119; James Anaya, Indigenous Peoples in International Law (Oxford University Press, 1996) 81. 60 Richardson (n 50) 362. 61 United Nations Declaration on the Rights of Indigenous Peoples Articles 9, 34. 62 International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Articles 1, 2, 20, 29. 63 Hepburn (n 26) 31, 32. 64 Ibid, 32; See Harry Hobbs & George Williams, ‘The Noongar Settlement: Australia’s First Treaty (2018) 40 Sydney Law Review 1, 35; Shireen Morris, ‘Lessons from New Zealand: Towards a better working relationship between indigenous peoples and the state’ (2014/2015) 18(2) Australian Indigenous Law Review 67, 79. 65 Hepburn (n 26) 31, 32. 66 Ibid, 33. 67 Ibid. 68 Ibid, 35.

indigenous traditions. However, this would present inevitable conflicts with the Western individualism notion.

There would ultimately have to be an overarching source of authority to keep the peace between those pursuing indigenous legal traditions, and those interacting with these traditions from the outside. The United States implemented a federal source of power over indigenous legal traditions against the power of the individual states, hence Australia should adopt a similar form of organization. However, an implication of this is that in the process of asserting a higher source of power, one legal tradition is declared authoritative over another and therefore held in higher regard. Traditions cannot triumph over one another as there will almost always be adherents hanging on69. The main objective is to provide a more accommodating land system, rather than disadvantaging one group based on a prejudicial history.

CONCLUSION

A Western legal tradition such as the common law in Australia should be capable of recognizing indigenous land claims. Although its history is young, there is continual opportunity for proper reconciliation with its First Nations People. This reconciliation should follow the relationship held with the United States and the Native Americans. In comparison to Australia, the United States had a long-formed history with differing intentions of recognition of indigenous legal traditions and land rights. Their stepaway from a traditional British feudal system saw the early implementation of land treaties with its Native Americans. Australia’s strong connection with British systems during colonization inevitably saw the implementation of the common law and its land use precedents and doctrines; especially terra nullius. Although the United States did discriminate against its Indigenous people as a result of white settlement throughout the 19th century, it still holds an allodial land system creating reservations and a sturdier arena for the continuation of indigenous traditions. Australia should adopt a similar system where the extinguishment of native title would no longer derive power from the status of Crown title. This system would allow for the development of important communal rights within indigenous traditions. This would be more accommodating than the present system of recognition. Issues arise in the current system as many Indigenous Australians have difficulties establishing a continuing connection to the land as a direct result of colonization. If no new measures are taken, indigenous traditions within Australia are, and always will be stuck between a rock and a hard place.

69 Glenn (n 1) 53.