Indigenous Rights, Native Title and the Australian Constitution

Associate Professor Alex Reilly is an Adelaide-born lawyer in the University of Adelaide

Law School. His main areas of interest are in indigenous legal issues, constitutional

law, migration and refugee law.

After completing a law degree at the University of Adelaide, Alex worked as a judge’s

associate in Adelaide, before studying overseas in British Columbia, Canada. After

completing a Masters degree there, he returned to Australia, starting his academic

career at Murdoch University in Perth.

“This is where my scholarship moved into constitutional law and legal philosophy, and

I also got very inspired by indigenous legal issues, because in Perth native title was just

taking off. Some of my first work was about that relationship between indigenous

peoples and their land; what they understood the land to be; and how the legal

system translated their stories into legal rights.”

The coming together of Australia’s law and indigenous stories

Alex started looking into how the law can translate the stories of indigenous people into legal rights and what were

the limitations.

“My intellectual journey is very much about – there’s law and the law forms our relationships and tells us what we

can and can’t do, and what are our rights and obligations, but often it maps itself onto relationships that are very

complicated and the law reduces those relationships into something that is much simpler. For me, there is always

something that’s lost through that process.

“I like to look at what is lost. For example when someone tells an extraordinarily complex story about their

relationship to the land, their connection to it, the spiritual beliefs they have, etc. the law says – I can see that you

have a right to hunt kangaroos and you have a right to visit this place but it co-exists with a pastoralist’s rights to run

cattle there.

“So a complex cultural relationship is changed when it becomes a legal relationship into something narrower and

more specific. The law needs to act that way, in black and white for clarity. But for me the challenge for law is to try

to be as faithful as possible to what relationships are really there.”

Comparative constitutional law – South Africa

Alex has spent time in South Africa, have taken a sabbatical there in 2000 and working with some constitutional law

scholars there.

“I did work in relation to constitutional rights – South Africa has a very modern constitution – when the Apartheid

regime fell [1994], they developed a new constitution. Australians and Canadians and other scholars helped them

develop that constitution, so it has one of the best Bills of Rights of any constitution in the world in terms of equality,

including the recognition of 11 official languages, including indigenous languages. It has tried to recognise South

African society and to give the fundamental laws for that society.”

This sets a benchmark for constitutional law and indigenous rights, and lawyers around the world, including in

Australia, make comparisons and reference other constitutions in their own law-making decisions. Studying

comparative constitutional law is an important element of Australian law degrees.

In comparison to the South African constitution, in Australia there is no official recognition of languages. Alex says,

“There are currently some recommendations to have a referendum to change the constitution and recognise

Aboriginal people in the constitution, and one part of that is to recognise Aboriginal languages – there is a current

push for that.”

Alex has a strong interest in the area of Aboriginal issues in Australia and is sometimes invited to events to speak

about those things.

An intriguing paper – Control in the Leviathan?

One of Alex’s earlier papers he wrote on the topic of the state and its powers is entitled, ‘Control In The Leviathan:

Limitations On The Power Of Parliament To Pass Genocidal Laws In Australia’, published in 1999 in the Flinders

Journal of Law Reform. Why is this such a key paper?

First it is necessary to understand what is meant by Leviathan. Alex says, “Thomas Hobbs, a theorist in the 17th

century, said the Leviathan was the state having ultimate power over people – in constitutional law there is always

the issue of – to what extent are people free from regulation of the state – not to be detained, have free speech, and

to what extent can the state control people and make laws.

“An extreme example of law is what if the state decided to kill all blue-eyed babies – what can stop the state passing

that law? You would expect Parliament not to pass the law but what if it did? How can you guarantee that

lawmakers won’t pass a law like that? Hitler rewrote the constitution that allowed him to do terrible things.

“It was one of my early articles where I was looking at the issue of the power of the state. Some laws are on the edge

of what is considered acceptable – like taking children away from their families in Australia, as recently as the 1970s

– how can the state do that? The Northern Territory ‘intervention’ [Northern Territory National Emergency

Response, passed under the Rudd government in 2007 – link] is another interesting example – to what extent can

you take away people’s basic civil rights, quarantining and spending their money for them?”

This is the dilemma in Australia with some of the indigenous policies – on the one hand, some communities are

dysfunctional and being destroyed by alcohol abuse. “So we have to do something, so the state has to get heavy

handed in a way, we have to take away the kind of freedoms you normally have in order to help you. That’s the

dilemma.”

The Northern Territory intervention was passed at federal level – the Commonwealth can pass any laws in the

territories but it is not so straightforward in the states. However, this law could be extended because the

Commonwealth has power in the constitution over indigenous issues – special powers based on people’s race, and

Aboriginals are considered to be a people of a specific race.

There are a number of laws that have been passed relating specifically to indigenous people in Australia, for

example, the Native Title Act; the Aboriginal Heritage Protection Act; laws around the Northern Territory

intervention; and ATSIC (Aboriginal and Torres Strait Islander Commission) Act about setting up a governance

structure (abolished recently). There are also Aboriginal land rights acts in the states.

Native title in Australia – two key articles

Alex wrote an important article on the role of history in native title litigation. “It was an important article because it

was revealing the problem in the legal thinking around recognising native title rights. That article led to other people

setting up a research project that the Australian Research Council funded to look into federal court cases and they

brought me on as a researcher to help with that.”

The paper is entitled, ‘The Ghost of Truganini: Use of Historical Evidence As Proof Of Native Title’ and was published

in 2000 in the Federal Law Review. It kicked off a whole research project and culminated in a book that Alex co-

wrote with well-known Australian historian Ann Curthoys and Ann Genovese, entitled, Rights and Redemption:

Indigenous Peoples, History, and Law.

“The research for this project was from talking to litigants, people involved in the court process – judges, native title

lawyers. Indigenous people participated in the research – mostly indigenous academics, including Larissa Barent, an

Aboriginal academic in Sydney, who was one of the project partners. It was more at the wider thinking level than at

the grass roots level.”

Alex published a later article in the Sydney Law Review in 2006 looking at indigenous people in the Australian

Constitution, entitled, ‘A Constitutional Framework for Indigenous Governance’. So influential was this article that it

was picked up in China and translated for a law review over there.

“It is an important article because it was my take on how indigenous people fit within our constitutional framework.

In general terms, my argument is that Aboriginal people have their own structures. We think – well, we have our

constitution and we have to bring them into it. But I think – Aboriginal people already have a whole constitutional

structure and our constitution can talk to that structure but it doesn’t just subsume it. That then affects the way that

you make laws that affect Aboriginal people.

“In particular what I look at is how it affects native title law. You can’t just think of native title law as coming out of

our constitution. It also has a strength and its strength comes from indigenous governance. That gives Aboriginal

people more of a sense of equality within legal relations because if they are only under the umbrella of our

constitution and perceived that way then they come in at a lower level and that affects the kind of fundamental

rights that they have.

“Theirs is not an ‘indigenous constitution’ in the way that we look at it. There are about 350 Aboriginal tribal groups.

Aboriginal governance works at each community group level and has its own governance structure. It emerges from

the land and it is that connection that is its strength. Ours comes from the top and covers all land, theirs comes from

the bottom, and has a completely different relationship with the land.

“The two have to meet at some point. If you recognise that it is a constitutional structure then it meets it in some

sort of equality.”

While there are hundreds of indigenous tribal communities, each with their own laws and customs, they all identify

as the first people of Australia, bringing them all together in a national indigenous identity. This identity is complex

and is discussed in the article.

What does native title really mean in practice?

Native title is not a right to ownership. It is a right for people to continue to do with that land what they have done in

the past. For example, a tribe may retain the right to hunt kangaroo on an area of land, but a pastoralist might own

the land and run cattle on it.

Alex references a landmark case about a man named Mabo [reference paper]. “This was the first case that

recognised native title in 1992 in the Torres Strait Islands – and the ruling applies to the whole of Australia. The

courts over the next decade narrowed what native title rights are. During that period a lot of people argued for

much broader rights.”

The courts recognise people’s connections with the land, including where they may have been forcibly removed

from it in the past, but maintained connections to land they were moved off from. For example, there was a case of

some land being flooded for a dam and the courts ruled that the people had maintained spiritual connections to that

land, by visiting and singing, and continuing their traditions.

The nature of the links affects what you can do with that land. It may be that the courts limit tourist access to land at

certain times to account for these connections, and compromises like this are common in land title litigation.

Another mechanism through which Aboriginal people have acquired land has been through purchasing it. In the

Northern Territory Land Rights Act you could get freehold over traditional lands, so about 40% of the Northern

Territory is under Aboriginal ownership through that act.

If land has been taken after 1975 it can be subject to the Racial Discrimination Act and compensation is applicable,

but otherwise there has not been compensation paid out to claimants. More commonly what happens is that the

Aboriginal people with links to the land are included in the discussions. One key example is with mining companies

negotiating access – it may be that there is some financial compensation and the condition that employment is

provided for Aboriginal people, and maybe some kind of contribution to the community. They cannot stop

developments going ahead and do not own the land, but are involved in the process.

Alex feels very strongly about giving greater weight to valuing indigenous issues and culture in an ideal world. He

continues to work mainly in the area of indigenous issues, migration and constitutional law.