The rule of law recaptured – dispossession and disadvantage in Indigenous communities
8 December 2015 | Chris Orchard
The rule of law in many Indigenous communities is in a state of neglect and disrepair. This state of affairs is a result of 200 years of dispossession. If the rule of law is something to be aspired to, and it is, then its restoration in Indigenous communities can only be achieved by an authentic attempt to return country and the traditional law that is inseparably connected to it. The rule of law and Native Title are therefore inseparably intertwined. To this end Native Title Representative Bodies (NTRBs), for example Native Title Services Victoria, for whom I interned this winter, are not only bodies dedicated to the restitution of dispossessed Indigenous land, but are in fact champions of the rule of law. Their role in promoting the rule of law in Australia is poorly understood and unappreciated. This article seeks to remedy this anonymity.
The rule of law
The rule of law is a remarkably abstract term notoriously difficult to define. For many the rule of law is understood in the context of a strong sovereign of the Hobbesian kind, able to enforce rules to which we are collectively bound. Legalists or positivists might claim the rule of law is simply a general, prospective, consistent and intelligible legal structure under which omnes inter se aequales, we are all equal. The doctrine of precedent plays the role of keystone in providing predictability and legal structure.
It may fairly be said that this conception is one of aspiration and not reality. As theorists such as Kymlicka point out,(1) this notion of the rule of law often leaves minority groups at a severe disadvantage in both the creation and enforcement of the rule of law.
Indigenous Australians are the most incarcerated people, per capita, on earth.(2) While it might be said the law, and its strong sovereign, is equal to all, it seems here it is more equal to some than others. To put this another way, Indigenous Australians are faced with both a catastrophic failing of the rule of law, and a powerful sovereign, the Commonwealth and the States, who are all too willing to enforce laws that are, the statistics would suggest, not adapted and disproportionately applied to Indigenous communities.
But to simply decry an inability to see the rule of law realised in Indigenous communities would be to fail in the matter. To lock the discussion into issues of police enforcement and of the courts' ability to effectively administer justice does us all an injustice.
The problem goes deeper. We must treat both the symptoms and the root cause of the failure of rule of law in Indigenous communities. The root cause is dispossession. If the rule of law is something we should aspire to, and it is, then remedying the evil of dispossession perpetrated on the First Australians is the first and most important stride towards achieving an improved rule of law. At the vanguard of this push, in the context of the rule of law, are Native Title Representative Bodies.
A return to the rule of law
Current High Court Justice Stephen Gageler has commented that the "…doctrine of precedent is a white-fella's version of respect for elders."(3) This article does not propose to offer a comparative analysis of Indigenous and Commonwealth law. Suffice to say Aboriginal society, as a matter of fact, has for the past 60,000 years been conducted by "government[s] of laws, and not of men."(4) That is 60,000 years of law passed from generation to generation. Viewed in the spectrum of the rule of law, that is quite a body of precedent.
It is this body of cultural and legal jurisprudence that was dispossessed upon colonisation. An attempt was made to have Indigenous law in Australia annulled upon colonisation. It is this wrong that the doctrine of Native Title seeks to redress. This is why NTRBs are so important in the context of re-establishing the rule of law. They seek to realise Native Title to the fullest legal extent possible.
The High Court's decision in Mabo (No.2) sought to begin the process of redress. It began this process by recognising the doctrine of Native Title. This doctrine, put simply, allows traditional owners right of access to practise traditions, and laws, on country.
When the Keating Government passed the Native Title Act 1993 (Cth) in response to Mabo (No. 2), it provided for the establishment of certain Aboriginal Corporations to act as, among other things, statutory (independent) law firms to represent traditional owners in their attempts to attain grants of Native Title. This was recognition of the inherent power imbalance between the dispossessed, traditional owners, and the dispossessor, the State. It was an attempt to see the rule of law satisfied by overcoming this imbalance.
This access would in turn allow counsel for traditional owners to argue for a restoration of access to land under the Native Title Act. A grant of Native Title would then allow a limited ability for traditional owners to reconnect with country and resultantly the law inseparably intertwined with that country. To say this differently, grants of Native Title allow for a reestablishment of the rule of law in Indigenous communities. Amongst other things, Native Title seeks to reanimate the rule of law for traditional owners, who were dispossessed of it upon colonisation.
NTRBs play a vital role in helping to restore this connection and the rule of law for traditional owners. This pursuit represents an attempt to address the root cause of the failure of rule of law in Indigenous communities, dispossession. NTRBs and their Native Title work deserve to be a bigger part of the conversation about justice and the rule of law. Whether or not Indigenous law and Commonwealth law can coexist is a question for another day. For now we must strive to reimage the rule of law in a way that genuinely incorporates Indigenous notions of what that means. NTRBs are an invaluable resource in this regard.
- Will Kymlicka, Multicultural Citizenship (Clarendon Press: 1995).
- 'World Prison Population List (10th edition)', International Centre for Prison Studies 21/11/2013.
- Gageler, 'Beyond the Text: A vision for the structure and function of the Constitution', (2009) 32 Australian Bar Review 138, 157.
- Grove Land Rights Case, Blackburn J.