Indigenous difference has been “recognised” in the public law and policy of the western settler states of Australia, Canada, New Zealand and the United States since the earliest days of colonial government.
Recognition, however is not a self-explanatory concept. Indigenous difference has been represented in settler law in different ways.
The major distinctions in scholarship and law lie between three representations of indigenous individuals: as members of cultures, as members of a race (sharing indigenous ancestry), or as members of historic political communities (known officially as “tribes” in New Zealand and the US, and “First Nations” in Canada).
These taxonomic distinctions are important because the description of the rights-holder dictates the type of rights that person or group can be said to hold. Since all categories entail exclusion, some people fall into one category and not another.
For example, in each of the four countries named above, a majority of persons reporting indigenous ancestry are not members of a historic indigenous group, or do not know to which historic group they “belong”.
It is important then, that any reference to indigenous peoples in the Commonwealth Constitution is reasonably inclusive of the choices that indigenous peoples have made about where and how to live.
There is an increasingly significant difference in the way recognition has been explained in political theories of multiculturalism, and the way it has been deployed in law in the western settler states. In multiculturalism, recognition is directed to the distinctive cultures of indigenous peoples.
In law, recognition has tended to refer to the special legal status and rights of indigenous communities as the legal “successors” of historic communities.
Where questions of legal proof arise, the community is obliged to show its historic continuity, not simply its current cultural distinctiveness, because only those communities that are “the same” as a historic community are entitled, at law, to inherit its property and legal status.
All continuity tests require the prior identification of a historic person or community, in a way that is cognisable in a settler legal system. Because of the history of state-indigenous relations in Australia, continuity tests pose distinctive challenges for Australian indigenous peoples that do not arise in quite the same way for indigenous communities in Canada, New Zealand and the US.
These challenges arise because of the historic and continuing lack of formal, diplomatic state-indigenous relationships in Australia, and from the absence of documented agreements and legal references to historic indigenous institutions that could show the persistence of indigenous political and legal systems over time. The consequences of this distinctive history for Australian indigenous communities are as follows:
First, Australian groups must often “start from scratch” to show their continuity. They are often obliged to use anthropological evidence to prove the historic continuity of traditional laws and customs, while groups in New Zealand, Canada and the US have been able to point to the prior existence of treaties, land transactions and other dealings that show the existence of a recognised historic “antecedent” community.
Relationships in each of these countries have been fraught, of course, and characterised by egregious abuses of state power, but whatever the morally questionable purpose of historic recognition (for instance, in efforts to recognise indigenous property rights in order to acquire them), it has provided a set of legal benchmarks for continuity tests that are missing in Australia.
Second, in Canada, New Zealand and the US, historic transactions and agreements (and their subsequent breach) form the basis of the special legal and political “trust” responsibility owed by the federal government or Crown to indigenous communities.
This is known in Canada as the federal “fiduciary responsibility”, in the US as the “federal trust responsibility” and in New Zealand as the “honour of the Crown”.
These trust relationships have formed the basis of national governments’ legal and moral obligations to consult indigenous peoples on matters implicating their interests, to deal with them in “good faith” and importantly, to negotiate with them in respect to historic claims based on the breach of treaties and the improper acquisition of indigenous property.
Negotiation and consultation, as formal quasi-diplomatic modes of engagement, require the continuing recognition of indigenous communities and their institutions.
In Australia, the federal government has accepted no general trust obligation to indigenous peoples, nor an obligation to negotiate with indigenous claimants, and no such obligation has been developed by courts in the course of considering indigenous claims.
As a result, the legal recognition of historic indigenous communities occurs largely through the native title process, which is for the most part conducted in the federal court as a judicial inquiry. In Australia it is federal court judges who apply the continuity test, in line with the strict evidentiary requirements of common law decision-making and in accordance with the Native Title Act.
Meeting this test has proved to be extremely difficult for groups whose traditional territories are not in remote Australia. There are currently 57 recognised Native Title Prescribed Bodies Corporate, representing only successful native title claimants.
In contrast, for example, every tribe in New Zealand has been officially recognised by the Crown via their participation in the Treaty of Waitangi fisheries settlement (a pan-tribal settlement) and most have also navigated the historic claims process, and so have their own distinctive agreement.
There have been important and difficult disagreements about whether or not a Maori community is an independent tribe (iwi) or a sub-tribe (hapu), but because of the systematic approach to claims settlement, there has been no such thing as a group that has “failed” a continuity test and so is not recognised at all.
The aim is rather to recognise every tribe and every tribal member in New Zealand through negotiation of settlement agreements. These form the basis of future Crown-tribal relationships.
Negotiations, such as those underway in New Zealand and British Columbia, are far from perfect, since they are typically characterized by extreme power imbalances between the state and clamant groups, and depend on the political good will of the in situ government (and so also of voters).
However, they have the great advantage of recognising indigenous institutions as legally mandated to act on behalf of their communities. The Victorian Traditional Owners Settlement Act 2009 goes some way to remedying this situation, by providing a framework for negotiating agreements with traditional owners, whether or not they have successfully claimed native title.
Similar moves in other states, however, let alone at the Commonwealth level, seem to be out of reach. For all of these reasons, and more, recognition of indigenous communities and individuals in the Commonwealth constitution is necessary to help to recast debates about indigenous peoples as ones implicating the moral responsibilities of Australia’s governments, including especially the federal government, as is the case in Australia’s sibling settler states.