Reconciliation: What does the law do to heal injustices of the past against Aboriginal people?

The law, as it exists today, does little to redress and remedy the devastation, degradation and dispossession that the Aboriginal people have suffered under for over two-hundred years. This situation arises, however, for two very different reasons. Firstly, the law cannot cure all past injustice. It cannot take away the pain and powerlessness inflicted on the Aboriginal people and it cannot restore the intimate links with the land that have been removed by white settlement. The law is only a component of the greater, more holistic remedy that is reconciliation. Secondly, the law does not, for reasons of political expediency and lack of public understanding, provide recognition and remedies for injuries of the past that remain unhealed. For the law is not only the courts and judges, but our law-makers, our elected-representatives, who, in resent times have taken the fickle whims of public opinion as a political mandate to put in place further barriers to true reconciliation taking place in Australia. This is not ignoring the fact, however, that the law has a significant role to play in this reconciliation, in recognising, and to some extent compensating the Indigenous population for past acts of injustice and dispossession. International law and domestic law, however, do not and cannot provide sufficient remedies for past wrongs - as Brennan comments, 'reconciliation is a matter for the heart as well as the head, the law cannot achieve reconciliation of and by itself'

We must avoid false expectations, then, that the law will provide remedies for all past injustice. However, in the area of native title, a small, but significant remedy for the wrong of dispossession can take place. The grave injustice that was the taking of land from Aborigines is accentuated by the deep and intimate connection that Indigenous peoples hold with this land, as McLachlan observes, they held 'an identification with the land which was primarily spiritual, constitut[ing] a vastly different attitude to land ownership from that prevailing in the common law.' The recognition of native title with this intimate connection and the rejection of the concept of 'terra nullius' in Mabo v Queensland [No 2] , then, represents, as Laster comments, 'a watershed in our reconciliation with Australia's indigenous people.' Mabo was a turning point in that it represented the first instance whereby the High Court was willing (and able) to begin the movement of the common law away from, as Deane and Gaudron JJ. commented, 'the darkest aspect of the history of this nation' , and allow it to evolve to represent the changes in community opinion towards the Indigenous population. Brennan J. clearly stated that the common law must not be 'frozen in an age of racial discrimination' and it is through the development of the common law that a partial remedy for Aboriginal dispossession was able to be achieved. The recognition of Aboriginal rights in regards to their traditional land was the first step in remedying injustice.

It would be naïve, however, to suggest that the Mabo judgment solved the problems associated with the myriad of instances in which Aboriginal people have been dispossessed of their land. The rights regarding native title were expanded in the Native Title Act 1993 (Cth), solidifying and codifying the rights of all Australia's indigenous peoples in regards to their traditional lands, allowing for the 'recognition and protection of native title' as well as establishing 'mechanisms for determining claims' . Bodies such as the National Native Title Tribunal played a major role in providing remedies for past injustice. However, as Brennan commented, the legal remedy for the injustice can only be undertaken where it 'does not infringe the legal rights of others…the rights of pastoralists were paramount.' Native Title could not be granted on land which has already been 'disposed of' by the Crown. Hence, the remedy for dispossession is limited by its legal nature, and there remained many problems regarding the ability of indigenous people to secure recognition of their traditional rights.

The chronology of events that has followed Mabo has seen, up until the present day, a severe restriction of the ability of the courts to dispense remedies for dispossession and injustice, as the scope for recognition of native title has been severely restricted. The passing of the Native Title Amendment Act 1998 (Cth) (NTAA) following the High Court decision in The Wik Peoples v Queensland , has seen the expansion of extinguishment, the limiting of the right to negotiate and the instigation of a sunset clause that would end the ability of the Aboriginal people to gain native title rights. Here we see a conflict between the two elements of the law. Firstly, the High Court, in response to a hypothetical question of the coexistence of native title with pastoral leases ruled, with a great deal of common sense, that a pastoral lease did not, either in reality or in law, necessarily extinguish native title. Secondly, we see the law-makers, in the form of the Australian government, super ceding the decision of the court and preventing its continuing evolution to provide solutions and justice. The NTAA perpetuates the injustice of the past rather than providing remedies for it, in the words of ATSIC chairman Gatjil Djerrkura:

It is unjust because after 200 years of seeking justice and having achieved limited recognition of native title in the common law, the rules are arbitrarily changed.

The government, in making law, failed to understand that mere financial aid is not a remedy for past dispossession, 'no amount of financial compensation can ever recompense native title holders for the loss of land and native title rights.' By narrowing the Right to Negotiate, the Act prevents the involvement of Aboriginal people with the land that is intimate to their spiritual existence. As Triggs comments, the NTAA 'pre-empts either the continued development of the common law or the revival of native title' , preventing it from developing and disallowing the courts from providing relief for injustice.

Despite the misguided actions of government that have limited the application of native title, the concept itself is a clear example of when compromise between Aboriginal customary law and the common law can provide a suitable solution to the wrongs of the past. As Pearson argues, native title is 'the space between the two systems, where there is recognition.' In Pearson's article, written before the passing of the NTAA, the author comments that the way in which recognition and extinguishment are dealt with will reflect the ability of the common law to 'be a just and fair scheme.' It is clear that any compromise has been undone and that our current system is one that has abandoned negotiation as a remedy for injustice.

The compromise between common law and customary law, then, is one that is vital for the just operation of the Australian legal system, and although this compromise has been dulled in relation to native title, there exists a large scope for it in the rest of Australian domestic law. The way in which synthesis is gained will reflect our ability to heal the wounds of the past, the integration will mirror the willingness of law-makers to accept difference within society. The law as it presently stands, especially in the Northern Territory, does possess some integration that allows us to avoid a repetition of past injustices and remedy some of these injustices. Hatton points out that the Northern Territory has 'already enacted legislation to recognise customary law in many areas…' , and it is clear that achieving a synthesis between the two systems is of vital symbolic and practical importance to providing an antidote to past injustices through reconciliation. Far from arguing that this represents inequality before the law, those who make and enforce it must recognise the need for substantive equality of outcome, rather than mere formal equality if injustice is to be avoided, as Moore J. comments, 'equal treatment does not necessarily mean equality.'

The law once again, then, only provides justice and equality to a small extent. This integration is helped, however, by figures such as Justice Moore who, with her experience of customary communities is able to make the court a less daunting experience for Aboriginal members of the community and help to facilitate the bringing of justice to those who have suffered unfairly in the past. Indeed, the court itself has an extremely important role to play in its interpretation and enforcement of the law. By recognizing the injustices that have been done to the Aboriginal people, the court is, at the very least, able to bring the relevant issues to the surface, without the influence of a political agenda. It is in this way that Mabo is a judgment that does not merely have legal effects, but also social and cultural effects in highlighting the need for reconciliation. Indeed, judges and lawyers can act as social change agents, as Brennan comments, '[i]njustice is revealed by application of the law in particular cases and, as the law is a mirror of contemporary values, its application can highlight shortcomings in our community morality.' Despite an understanding of the injustice that has taken place, however, the courts can only really provide a legal remedy to evidence of past wrongs, a remedy that is often insufficient to provide a real solution to the injustice that has taken place.

If domestic law provides only minor and superficial remedies, then, international law must be examined to see if it provides any substantial means of rectifying past instances of unfairness and ill-treatment. However, despite it appearing that an appeal to international law and its underlying theories of the legal morality of natural law, the fact remains that an international judgment if effectively unenforceable domestically without the support of the Australian government. Indeed, Australia's signing of the Optional Protocol to the International Convention on Civil and Political rights amounts to nothing more than an empty gesture of intent, there existing no valid enforcement machinery to make a nation comply.

Besides this, an appeal to international law on an issue that does not have the support of the Commonwealth government is basically inconsistent with reconciliation; appealing to a higher authority is to inspire feelings of nationalism that will negate any remedy achieved. Although the Toonen Case displays the success of international law in pressuring change, this represents a case in which the Federal government essentially agreed with the Human Rights Committee's views. This is certainly not the case in relation to Aboriginal rights, and far from causing embarrassment , has prompted a spurt of support for national sovereignty that undermines any advocacy for legitimate remedies for past injustices.

There exists then a vast area in which there is no legal remedy whatsoever for past instances of injustice. The reasons for this lie in two areas. Firstly, the issues on which no law has been made, and hence no remedies provided, such as the Stolen Generation, or the discriminatory effects of Mandatory Sentencing. It is concerning these issues that no solution can be provided as no consensus has been reached as to what remedy, if any, is appropriate. In Bringing Them Home, the report into the Stolen Generations, a number of remedies are set out that have, as yet, been unimplemented into the legal system despite the evidence displaying the obvious discriminatory motives, regarding both culture and race, under which the children were removed . The report comments,

[t]he first step in any compensation and healing for victims of gross violations of human rights must be an acknowledgment of the truth and a delivery of an apology.

and it is clear that this remedy, and others suggested, would provide the beginnings of a solution to acts of injustice committed against indigenous peoples in the past. The courts will be forever unable to hold that the acts of removing Aboriginal children were invalid until a wider recognition and implementation of compensation, financial or otherwise, takes place.

Secondly, there are areas of injustice and dispossession that 'the law' will never be able to remedy. The spirit of a people, degraded over two centuries, can not be resurrected by financial compensation, even if the means to grant this compensation exist. Brennan displays the problem when he comments,

injustices which have been entrenched by law cannot be cured by merely changing the law. Over centuries, the self-confidence of Aboriginal people was eroded by, or in the name of the law.

Not all solutions lie with the courts and with the law. What is required, to provide sufficient remedies for past injustices and to move on, is a change in the contemporary mindset, an admission of past wrongs, which, in combination with the law, can set about finally unifying the Australian people.

The law cannot provide solutions until the lawmakers realise the dangers that will arise when past actions are ignored and statutory intervention promotes, rather than remedies injustice in the form of such Acts as the NTAA. In an international context, by viewing the comments of leaders such as Hun Sen in Cambodia, the ridiculous stance of 'forgetting' past injustices is made clear. Perhaps by objectively viewing the opinions of Samphan, a notorious Khmer Rouge leader, when he comments 'Please forget the past and please be sorry for me' , Australia's leaders will realise the necessity for recognition and action. In seeing this extreme, our own obligation to provide legal remedies should become obvious. Nettheim displays that 'progress will remain elusive on all fronts while some politicians choose to inspire fear and loathing in the community', and a clear example of this is seen in the aftermath of the Wik decision. The deputy PM's comments that the NTAA contained, 'bucketfuls of extinguishment' is typical of the misinformation regarding native title and reconciliation that will prevent the law from providing remedies to the all to obvious injustices. The law cannot provide remedies for past wrongs when the law-makers do not want it to.

The law, then, is an imperfect distributor of solutions to past injustice. Sometimes it will be able to provide a remedy; sometimes it will not. Remedies that do exist, such as Native Title, have been undermined, and there remains large areas of injustice that are devoid of legal solution. The courts, excluding their ability to provide recognition of injustice to Aboriginal people, can dispense only the legal remedy, a remedy that is too clumsy and narrowly focused to undo all the effects of past injustice. We must not view the past, or the solutions to it, through a 'jurisprudential keyhole.' There are aspects of injustice, however, that cannot be healed by court action or even statutory intervention - the breaking of the spiritual connection with the land and the weakened self-confidence of the Aboriginal people. The law can play only a limited role, however, it can play a greater role than it does today. What is needed is recognition and collaboration, 'imaginative and practical policies', legal or otherwise, 'that will help restore [Aboriginal] communities to spiritual health.' In the context of two-hundred years of suffering, the remedies that do exist fall embarrassingly short of securing an equal and unified future.

References:

Brennan, Gerard, 'Reconciliation', (1999) 22(2) UNSW Law Journal, 595.
McLachlan, Campbell, 'The recognition of aboriginal customary law' 37 International Law Quarterly 368 in Legal Institutions Reading Materials 2001 (RM),p40
(1992) 175 CLR 1
Laster, Kathy, Law as Culture, Federation Press, Sydney,1997,in RM,p113
Mabo,Op.cit,at 103
Ibid,at 43
Legal Information Access Centre, Native Title, LIAC,Sydney, 9-12,in RM,p140
Brennan, Op.cit,p596-597
(1996) 121 ALR 129
ATSIC, The Ten Point Plan. Issues for indigenous peoples, http://www.atsic.gov.au/issues/native_title/native/10point.htm, accessed 1/6/01
Ibid
Triggs, Gillian, 'Australia's indigenous peoples and international law: the validity of the Native Title Amendment Act' (1999) 23 MULR 372,in RM,p161
Pearson, Noel, 'The concept of native title at common law' in Galarrwuy,Our Land is Our Life, UofQ Press, 1997,in RM,p136
Ibid,p138
Speech by Steve Hatton, AG(NT), 1995 in RM,p57
Legal Institutions Lecture-Justice Moore,7/3/01
Brennan,Op.cit,p595
'Views of the human rights committee concerning communication no 488/1992' in RM,p460
Saunders, Megan, 'Native Title laws breach UN race rules' in RM,p160
'Bringing Them Home', Report into the Separation of Aboriginal and Torres Strait Islander Children from Their Families,1997,p202
Ibid,p284
Brennan, Op.cit,p598
Mydans, Seth, 'Former KR Leader 'very sorry' for million deaths', SMH, 30/12/99, in RM,p397
ABC Radio, 16 May 1997, in ATSIC, Op.cit.
Reynolds, Henry, 'Native title and pastoral leases', (1996) 3 ALB, 14 in RM,p144
Manne, Robert, 'Aboriginal debate makes a sharp right', SMH, 4/6/01, p14

Written: 20th June 2001.