Much is made of the Treaty of Waitangi as the vehicle for the recognition of Maori in New Zealand’s legal system. Australia lacks a treaty, the argument goes, and therefore is constitutionally disabled from extending similar kinds of recognition to indigenous Australians. Hence, some say, the need for constitutional reform.
But arguably the proposed constitutional amendments to recognise Indigenous Australians, as they are currently formulated, only invite Australian courts to do what they could have done anyway. Namely to develop common law principles obliging the political branches of government to act honourably in their dealings with indigenous peoples. The fact the courts have not done so is one, important reason why constitutional recognition is required.
Courts in Canada, New Zealand and the United States, on the other hand have developed “trust doctrines” which operate alongside the common law doctrine of aboriginal native title.
In New Zealand, for example, the Treaty of Waitangi is not an independent source of legally enforceable rights for Maori in New Zealand, but rather a powerful expression of the Crown’s moral obligations to act honourably in its dealings with Maori.
What relevance does this have for debates in Australia about amending the constitution?
The trust obligations of the governments of Canada, New Zealand and the United States arose not from treaties, but from the nature of aboriginal title rights. The doctrine of aboriginal title is recognised in all four states (including, of course, Australia) and in each state the doctrine specifies that aboriginal title rights are alienable only to the Crown.
According to the courts in Canada, New Zealand and the United States, this aspect of aboriginal title concentrates so much power in the hands of governments that in relation to indigenous peoples, a government stands in the position of a fiduciary or trustee.
In striking contrast to other citizens, aboriginal title holders cannot enter the market to realise the value of their property rights (by leasing, selling or mortgaging them), because the Crown has a monopoly over the acquisition and extinguishment of those rights.
When Australian common law fell into line with that of the other three countries (albeit more than a hundred years later), by recognising native title in the Mabo case of 1992, the High Court did not make a determination on the existence of a trust doctrine.
Australian common law has caught up with that of its fraternal settler states in some ways (recognising the existence of aboriginal title) but not in others (recognising the obligations that flow from this recognition). The possibility that such a doctrine may emerge has not been foreclosed, however, and perhaps the right case has yet to be argued.
For now, the absence of a trust doctrine makes it even more important that indigenous peoples are recognised in the Australian constitution.
At the very least, the proposed provisions would serve as an express invitation to the courts to involve themselves in shaping and guiding the development of an honourable state-indigenous relationship. This task need not (and cannot) amount to a usurpation of the supremacy of parliament or the prerogatives of the executive.
Instead, judges should be empowered to remind the political branches of their moral obligation, as New Zealand courts have done, to act “reasonably, honourably and in good faith” in dealings with indigenous peoples and to make “informed decisions” where their interests are at stake.
Importantly, in the name of the trust doctrine, judges in the other western settler states have articulated “rules of engagement” for states and indigenous peoples that are largely procedural standards of conduct, guiding governments (and indigenous peoples) in “how to proceed” rather than dictating the outcome of the process. Often what is required of the Crown is no more or less than it conduct adequate consultation with the indigenous peoples concerned.
Courts also call on the trust doctrine when interpreting legislation affecting indigenous people, by endeavouring to interpret ambiguous provisions consistently with the honour of the Crown. So unless legislation clearly states that its object and purpose is to adversely impact on the interests of indigenous peoples, the courts will presume that this is not what parliament intended.
This does not seem too much to expect from our political representatives. The contortions over whether or not the race power can be used against indigenous peoples, rather than for their “benefit” or “advancement” shows, however, that Australian courts do not yet have such an expectation.
To my mind, the proposed constitutional amendments are likely to play a role not unlike the trust doctrine that underpins the Treaty of Waitangi. They will serve as a reminder that what is legally possible should not be the upper limit of what is morally desirable.
If the amendments succeed in putting the moral obligations of the Crown at centre stage when indigenous peoples’ interests are threatened, this innovation will be nothing out of the ordinary in contemporary settler-state constitutionalism, and will make an important contribution to the restoration of the legitimacy and honour of Australian governments.
Kirsty Gover and Mark Mcmillan are currently working on a project exploring the possible development of a common law trust doctrine in Australia. They can be contacted at firstname.lastname@example.org or email@example.com.