Constitutional Recognition Of Indigenous People In The Australian Commonwealth And Victoria: Historical And Developmental Background

Overview of the Constitutional Recognition Issue in Australia

Question:

Discuss about the Indigenous Recognition in the Commonwealth Constitution.

Constitutional Recognition of Indigenous People in the Australian Commonwealth and Victoria: Historical and Developmental Background

The general expectation is that the place of indigenous inhabitants in the polity of a nation is one of foundational significance and worthy of national Constitution address. In the case of Australia, though, that is yet to be done.[1] Originally, references to the Aborigines were merely exclusionary, which were removed during the referendum of 1967.[2] The result of the referendum was that the Aborigines were no longer excluded under section s 51(xxvi) regarding the powers of the Commonwealth Parliament to promulgate particular legislations for any racial grouping it deemed necessary.[3] The further referendum of 1998 made major proposals and among them was recognition of Torres Strait Islanders and Aborigines through the Preamble to the Constitution. However, the proposals were unsuccessful.[4]

Prior to state Constitutions recognizing indigenous Australians, there was an occasional arising of such recognition in the State legislation Preambles with respect to the Aboriginal people.[5] The Aboriginal Land Rights Act 1983 (NSW) is an example of such state legislation, which in its preamble, contains provisions acknowledging that the Aborigines were the traditional inhabitants of the State of NSW. It is more recently that the Victorian Constitutional amendments have seen the provisions that recognise indigenous people of Australia.[6] However, such recognition was not always there. In the Constitution Act 1975 of Victoria, there was in existence a Preamble that provided for the history of Constitutional enactment. However, it did not make reference to the Aborigines.[7] While the Preamble was not altered, the reformers in 2004, inserted section 1A. The import of the said section into the Constitution Act was acknowledging that the events set out in the Preamble ‘occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria’.[8] Importantly, there is a purported entrenchment of the above provision, such that amending or repealing the same can only be effected by a 3/5 special majority of the two Houses of Parliament.[9]

Summarily, Australia has a long history of proposals for establishment of provisions that constitutionally recognise indigenous people in the Constitution.[10]

Constitutional Recognition of Indigenous Communities in Canada and New Zealand: Comparative Survey

Claims of the Maori people of New Zealand against the Crown in New Zealand are premised upon the Common Law doctrine of Aboriginal title.[11] According to that doctrine, the Treaty of Waitangi[12] is declaratory in nature but not the source of the property rights of the Maori people.[13] Chapman, J. presented the locus classicus of the preceding in the case of R. v. Symonds where he stated that by securing the pre-emptive right of the Queen and guaranteeing the title of the natives, the Treaty, either in practice or in doctrine, does not assert any new thing.[14] Paul McHugh reaches the conclusion that the Crown is becoming acutely vulnerable to the claims of the Maori people.

One of the salient aspirations of the Maori people of New Zealand is greater recognition of their rights, culture and values within the legal system.[15] Under this aspiration, the natives long for the change in substantive law and in the expression of Maori rights in the New Zealand legal order.[16] Accordingly, the import of the preceding is to accord the Maori rights a constitutionally entrenched status forming a kind of supreme law that ordinary legislation cannot set aside. By the 1900, the customary laws of the Maori were virtually erased from the NZ legal regime. This has occurred through the failure to recognize the Treaty of Waitangi as a source of law that is enforceable.[17] Wi Parata v Bishop of Wellington was the authoritative deciding, for instance, where the Honourable Chief Justice described the Maori people as ‘savage barbarians’ with no organization in their government systems and no customs that were settled.[18] Furthermore, the introduction of Common Law statutory regimes that are overarching and that extend to all citizens presents a failure to recognize the distinctiveness of the Maori people.[19]

The Development of Constitutional Recognition in Victoria

Despite some favourable decisions by the Privy Council during the 1900, that recognized Maori customary interests, all of them were reversed by legislation in New Zealand.[20] The preceding, notwithstanding, the customary values of the Maori remain vibrant alongside (or outside) of the legal regime and are continually adhered to in controlled environments.[21] Summarily, constitutional reform in New Zealand in the context of Native peoples’ recognition is marred with great difficulty.[22]

Canada shares notable similarities with New Zealand with respect to constitutional heritage and cultures. However, the divergence in constitutional development between the two nations over the past two decades with regard to protection of indigenous people offers an excellent opportunity for comparative survey.[23] The Canadian system of indigenous rights protection is governed by a judicialized constitution.[24]

The Supreme Court of Canada asserted the fundamental nature of principles of the constitution, which do not directly derive from a single source.[25] Beverley McLachlin, a Chief Justice of Canada, explained that constitutional principles are unwritten norms, which are crucial to a country’s legal system, values, identity and history.[26]

The Canadian adoption of the Charter of Rights and Freedoms and the Constitution Act 1982 saw the judicial protection of indigenous rights. The Constitution Act for instance affirms and acknowledges the treaty and Aboriginal privileges of the Canadian Aboriginal inhabitants.[27] On account of section 52 of the Constitution Act, section 35 is supreme law. This means that the courts, including the Supreme Court, have the powers of striking down laws that are not consistent with that section.[28]      

It is noteworthy that, comparatively, the Canadian and Australian jurisdictions have the most developed modern approaches to indigenous recognition and co-management.[29]     

Case for the Australian Commonwealth Constitution: Should Indigenous Rights be Recognized and to what Extent?

The concept of recognising the Torres Strait Islander and Aboriginal people in the Constitution of the Commonwealth of Australia has been advocated for many years.[30]     

Arguments

Among the most significant reasons for recognising the Aboriginal people in the Constitution of the Commonwealth of Australian is that the people themselves have sought for it for decades. The Constitution, and generally the legal structures, has a profound effect upon the livelihood of the Aboriginal people. The Constitution establishes societal lines of power, legitimacy and relationships of people and provision and recognition of national principles.[31] On all the above accounts, the Constitution of Australia has failed the Aboriginal people. This, the Constitution has done through discrimination and failure to mention the natives or their history. Accordingly, the Aborigines rightly argue that a nation’s story is not complete without the history of the inhabitants of the land long before the white settlers.[32]  

Research recognises a broader range of challenges attending to and contributors to failure of recognition. Surveys on the social causes of health indicate how discrimination, exclusion and disadvantage can have huge adverse effects on physical and mental health.[33] The problems of being portrayed as an outsider in one’s own land cannot be overstated.

One of the major arguments fostered against recognising indigenous peoples in the Australian Constitution is that such recognition raises one race above or at the expense of the rest. This school of thought argues that this enhances discrimination. However, this argument does not warrant discourse.

Constitutional Recognition of Indigenous Communities in Canada and New Zealand: Comparative Survey

Opinion

From the foregoing discourse, the writer opines that provision of the constitutional recognition and entrenchment of indigenous people and culture is of foundational importance. This is essentially because constitutional jurisprudence informs that constitutional documents should not merely be static texts but should necessarily draw from the historical, cultural and spiritual experiences of the people. Accordingly, the Commonwealth Constitutional provision should not follow the Victorian example. This is because the preamble declares that proper consultations with the natives were not done. Hence, the preamble should not only recognize the distinctiveness of the Aboriginal people and culture, but should also make it a supreme law like in Canada. This means that the “draw-back” clauses that limit and derogate the rights of the indigenous people should be removed and replaced with supremacy clauses that buttress the recognition provisions.  

Therefore, the Commonwealth Constitution should recognize the indigenous peoples by positively mentioning them and their values in the novel Preamble to the Constitution. Secondly, it is important to delete sections 25 and 51 (26) and lastly, by inserting new provisions that allow for the formation of legally binding agreements between the Crown and Indigenous people. The said provisions should also outlaw provisions that are discriminative along racial lines.  

Conclusion

The importance of the above-discussed recognition cannot be overstated and the legal world is waiting to draw lessons from the process. Therefore, there should be amendments to the Australian Commonwealth Constitution to provide for recognition of its original people. However provision in the preamble is not sufficient to deal with the substantive and practical challenges. Further amendment is needed to remove the racially discriminatory vestiges.

Statutes

Aboriginal Land Rights Act 1983 (NSW)

Charter of Human Rights and Responsibilities Act 2006 (Victoria), Preamble

Constitution Act of Canada, 1982

Constitution Act of Victoria, 1975

Constitution Alteration (Preamble) 1999 (Cth)

Native Land Act 1909, New Zealand

The Treaty of Waitangi, opened for signature 6 February 1840, (entered into force May 1840).

Cases

Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308

Kartinyeri v Commonwealth (1998) 195 CLR 33 v. Symonds (1847), [1980-1932] N.Z.P.C.C. 387, 390 (S.C.)

Wi Parata v Bishop of Wellington (1877) 3 NZ Jur NS (SC) 72

Other

Beverley McLachlin, ‘Unwritten Constitutional Principles: What is Going On?’ (2006) 4 N.Z.J

Craig Donna, ‘Recognising Indigenous Rights Through Co-Management Regimes: Canadian and Australian Experiences’ (2002) 6 NZJ Envtl. L. 199

Davis Megan and Zrinka Lemezina, ‘Indigenous Australians and the preamble: Towards a more inclusive constitution or entrenching marginalization?’ (2010) 33(2) UNSWLJ 239

Dawson John, ‘The Resistance of the New Zealand Legal System to Recognition of Maori Customary Law’ Journal of South Pacific Law (2008) 12(1), 56

Morris Shireen, ‘Lesson from New Zealand: Towards a Better Working Relationship between Indigenous Peoples and the State’ (2014) 18 AILR 67

Nettheim Garth, ‘Indigenous Australian Constitutions’ (2001) 24(3) UNSWLJ 840

Palmer Matthew, ‘Constitutional Realism About Constitutional Protection: Indigenous Rights Under a Judicialized and a Politicized Constitution’ (2006) 29 Dalhousie LJ 1, 4

Paul McHugh, ‘The legal basis for Maori claims against the Crown’ (1988) 18 Victoria U. Wellington L. Rev.  1

Twomey Anne, ‘Constitutional Recognition of Indigenous Australians in a Preamble’ (2011) 12

Twomey Anne, The Constitution of New South Wales (Federation Press, 2004), Chapter 5 

WA Law Reform Commission, Aboriginal Customary Laws, Report No 94, 2006, pp 73-4

Williams George, ‘Should Aboriginal Peoples Be Recognized in the Australian Constitution’ (2013) 17 UW Sydney L. Rev 13