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Terra nullius and sovereignity

This section looks at the meaning of terra nullius and the constraints on sovereignty and treaties in the Australian context. It explains how community interest led to cross-party support for a document of reconciliation.

1. Terra nullius

British colonisation policies and subsequent land laws were framed in the belief that the colony was being acquired by occupation (or settlement) of a terra nullius (land without owners). The colonisers acknowledged the presence of Indigenous people but justified their land acquisition policies by saying the Aborigines were too primitive to be actual owners and sovereigns and that they had no readily identifiable hierarchy or political order which the British Government could recognise or negotiate with.

The High Court's Mabo judgment in 1992 overturned the terra nullius fiction. In the same judgment, however, the High Court accepted the British assertion of sovereignty in 1788, and held that from that time there was only one sovereign power and one system of law in Australia.

2. Sovereignty

The traditional English view of sovereignty was described by William Blackstone in the 18th century as deriving of necessity from one 'supreme, irresistible, absolute, uncontrolled authority'.

The Chairperson of ATSIC in 1995 described aspirations for Indigenous sovereignty as follows: "We see constitutional recognition of constituent indigenous sovereignty as central to the proper recognition of Aboriginal and Torres Strait Islander peoples in an inclusive way within Australian society . This recognition would not threaten the wider population, it would be based on partnership and reconciliation".

Australian governments and courts have not accepted the existence of remnant Indigenous sovereignty, and Australian Aborigines have not gained the status of domestic dependent nations, as bestowed on the Indian tribes of North America.

3. Treaties

No formally binding treaties were ever negotiated with Indigenous peoples in Australia whereas hundreds were signed with Indigenous people in North America and New Zealand. The Commonwealth considers that the major distinguishing characteristic of a treaty is that it is concluded between sovereign nation states with full international personality. Individuals, or groups without international personality, cannot be parties to a treaty (Senate Legal and Constitutional References Committee, 1995).

4. Proposals for an Australian treaty

The idea of an Australian treaty with Indigenous peoples was first promoted in 1837 by Saxe Bannister, the first Attorney General of NSW, in a submission to the Select Committee of the House of Commons on Aborigines. The retired Governor Arthur of Tasmania also urged that same Committee to consider treaties with the Aboriginal people of Australia. Forty-eight years later, in 1885, John Batman negotiated a treaty with the Kulin people but this was declared invalid by the Governor of Victoria as it was carried out by a private citizen rather than the Crown. Little more was heard of treaties for nearly 100 years.

In 1975 the Senate unanimously passed a resolution put by Senator Bonner urging the Australian Government to acknowledge prior ownership of Australia by Aboriginal and Torres Strait Islander peoples and to introduce legislation to compensate them for dispossession of their land.

A group of prominent non-Indigenous Australians formed the Aboriginal Treaty Committee in 1979. For five years this Committee tried to educate and persuade non-Aboriginal Australians to the idea of a treaty. However, the Senate Standing Committee on Constitutional and Legal Affairs, in its report Two Hundred Years Later, in 1983 rejected the idea of a treaty because it believed that the Aboriginal peoples were not a sovereign entity and so they could not enter into a treaty with the Commonwealth. The Standing Committee was in favour of a compact which could eventually be inserted into the Constitution by referendum. Indigenous attitudes to the idea of a treaty were also varied and far from unanimous in the 1970s and 80s.

In the lead up to the Bicentennial celebrations, in September 1987, then Prime Minister Bob Hawke said that he would like to see the Bicentenary produce some sort of understanding or compact with Aboriginal people whereby the Australian community recognised its obligations to rectify some of the injustices of the previous 200 years.

A statement of Indigenous aspirations was presented to Mr Hawke at the Barunga Festival in June 1988 ("The Barunga Statement" - Attachment A). The Prime Minister responded by calling for a treaty to be negotiated between the Aboriginal people and the Government of Australia. The use of the term "treaty" ignited much public interest, but in July 1988, Mr Hawke said

It's not the word that's important, its the attitudes of the peoples, attitudes of the non-Aboriginal Australians and of the Aboriginal Australians if there is a sense of reconciliation...whether you say there's a treaty or a compact is not important, but it is important that we do it"

While support for a treaty was not unanimous, wide political support continued for reconciliation. Through 1990 and 1991, cross-party support developed for a formal process of reconciliation to be led by a council of prominent Australians, and the Council for Aboriginal Reconciliation was formally established on 2 September 1991.

The idea of a 'document of reconciliation' was developed as a way to deal with the sensitivities and differences of view which existed about a treaty. Other terms which could be used instead of 'document of reconciliation' could be settlement, compact, covenant or declaration, or an Indigenous word, such as Makarrata, which has an appropriate meaning.

"... I hope we have some kind of written understanding. I don't like the idea of a treaty because it implies that we are two nations. We are not, we are one nation. We are all Australians before anything else, one indivisible nation. But I would certainly be in favour of a document that recognises the prior occupation of this country by the indigenous people, recognising their place as part of the Australian community and their right to preserve their distinctive culture. But within the notion of one undivided united Australian community where our first and foremost allegiance is to Australia and nothing else."

Prime Minister John Howard, September 1998.

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