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6

An Overview of the Era of Aboriginal


Self-Determination: from Rights-Recognition
to Rights-Integration and -Management

Overview

During the 1960s the indigenous peoples of North America and Australasia claimed
the right to self-determination inside the constitutional system of the settler-state. This
claim, elusive and idealizing, became ever more insistent in the final three decades of
the century, acquiring a momentum that generated considerable legal innovation and
change, particularly in the 1990s. By the mid-1970s each jurisdiction acknowledged
that its indigenous peoples had an inherent right to retain their cultural identity
and that their aboriginality somehow (for the extent was usually indeterminate and
frequently controversial) enhanced that right. Rather than being de-legitimated by
national laws, aboriginal polities now arguedand the settler-state for the most part
acceptedthat law should be validating their group identity. The era of aboriginal
self-determination1 had begun.
In all jurisdictions legal change started slowly and fitfully. The 1970s and 1980s
were years of legal acclimatization during which each jurisdiction bit by bit laid a plat-
form for aboriginal self-determination (the modified version that in law-makers eyes
did not incorporate the secessionist element). Aboriginal self-determination needed
legal facilitation and that required the Anglo legal system to revise its assimilationist
attitude and negativity. That was a hump all jurisdictions had to cross. Once legal
recognition was irreversibly in trainclumsily and awkwardlythere came the more
free-wheeling legalism of the post-recognition era. The process of recognition was an
uneven one and the legal platforms that took shape had elements of the makeshift and
rickety, but by the late 1980s most jurisdictions had experienced a fundamental para-
digm shift. By then each jurisdiction had a network of laws and travelled far enough
down the road of aboriginal self-determination to make reversal or even deceleration
impossible. Much of that legal machinery was vintage, inefficient, and jerry-built, a
thing patched and held together by sellotape. Each jurisdiction had its own set of
peculiar legal contraptions for the management of aboriginal peoples affairs. These
1
The term aboriginal self-determination is used in the remainder of this book to describe the version
that settler-states were able to accept, the one that did not incorporate the secessionist element of the full-
blown right of all peoples in the common article 1 of the human rights Covenants (1966).

Aboriginal Societies and the Common Law. P.G. McHugh.


Oxford University Press 2004. Published 2004 by Oxford University Press.
316 Aboriginal Societies and the Common Law

bumped along the road of self-determination as the need for modernization and more
effective legal mechanisms became clear (and embodied in the single term
governance).
As this revision of the laws of status moved beyond recognition to the 1990s
post-recognition terrain of reconciliation (which included claims settlement), and
governance, there was an inrush of legalism into the politics of the reviving aboriginal
cultures. Aboriginal self-determination now had a legal momentum that was sometimes
so frenetic and fast-paced it became difficult to perceive whoif anyonewas at the
wheel. Soon this increasing and in some regards encroaching legalism was affecting the
dynamic of aboriginal relations at every levelwith governments, other groups, and
within themselves. The more self-determining aboriginal groups becamethe more
actively and vigorously they managed their claims, assets, government programmes,
and suchlikethe more legalism thrived. As national laws moved towards a wider
accommodation of aboriginal self-determination, they placed new demands and
uncorked old stresses in aboriginal culture. As aboriginal people controlled more of
their affairs, the legalism around them became more pervasive and uncontrollable.
Moving beyond colonialism also re-inscribed some of its enduring features. This para-
dox became more obvious during the final decade of the twentieth century but it was
also inherently irresolvable.
This chapter is an overview of how aboriginal self-determination became the
overarching dynamic for legal development in each jurisdiction. It sets out the important
legal contours of the last quarter-century, showing how each jurisdiction addressed
the legal and constitutional pluralism that this new imperative demanded, and purged the
older discredited goal of assimilation. The next chapter will examine in more detail
the processes of legal recognition, explaining the means (and convulsions) by which
each constitutional system admitted (through its laws of sovereignty and aboriginal
status) this new legal presence. That history of the 1970s and 1980s, the crucial years
of legal recognition, will enable the subsequent chapters to explain the transition into
and features of the bustling post-recognition legalism of the 1990s when reconciliation
and governance became new, central themes of legal attention. Those themes were
motored primarily by the movement within each jurisdiction towards resolution of
land-related claims, a key series of processes described in the final chapter.
The legal developments described in the following chapters occurred, of course,
within a broader political setting where factors other than legalcultural and eco-
nomic not leastwere as, if not more, influential in setting the pace and direction of
change for aboriginal peoples. Law both influenced and was influenced by those
factors. It is a truism that no area of legal development is a self-contained conversation
immune from the pressure of the outside world. However aboriginal affairs became an
area where these external pressures were particularly robust. The dynamics of legal
change were generated not only by the obvious sourcesgovernments, judges, and
aboriginal people themselves (powerful as they grew in confidence and the dark art of
political lobbying). There were many non-aboriginal people and sectors of political
influence that lacked an opinion on most areas of legal doctrine but found they had
strong feelings on aspects of aboriginal rights. The national controversies in Canada,
Australia, and New Zealand whipped up by the judicial recognition of common
An Overview of the Era of Aboriginal Self-Determination 317

law aboriginal title were dramatic examples. Farmers, recreational homeowners,


environmentalists, anglers, local chambers of commerce, were amongst those who did
not hesitate to express their opinions about aboriginal rights. Most Americans had
some view, often a cynical if not hostile one, of Indian gaming. Aboriginal rights
attracted considerable controversy in polities that were not used to thinking about
tribal peoples in a rights-based way. The accounts of legal change that follow should
always be seen as happening inside that robust political environment. The purpose of
this chapter is to set out the general legal contours of the era of self-determination in
each jurisdiction so that the later chapters can fill in the detail.

***

1. Into the era of self-determination


Aboriginal peoples claim to a right of self-determination was an outcome of their
mobilization against the turn towards more active policies of assimilation in national
policy-making after World War II. It was augmented by the new international con-
sciousness of peoples rights described in the last chapter, in particular the de-colonization
and civil rights movements. Although the aboriginal rights movement in each country
had its own background and momentum, the same type of threatening governmental
policy ignited all. This policy was the logical endpoint of the assimilation policies
applied for over a century, as well as a progression from the colour-blind principles of
liberal democratic practice. After World War II, the effects of discriminatory laws had
been all too plain. Spurredand horrifiedby that experience, western democracies
advocated principles of thoroughgoing equality that eliminated special legal protection
of minorities. During the early 1950s the implications of that version of equality for
aboriginal people were dawning. However, the full, bleaching consequences became
most evident in the 1960s and early 70s as aboriginal peoples fought against legal ter-
mination. By then governments were regarding the special legal position of aboriginal
peoples as contrary to the liberal democratic principle that required equal treatment of
a culturally undifferentiated citizenry. The various governments of North America and
Australasia, in their different ways, proposed the removal of the legal protection and
special status given native peoples. Aboriginal peoples blazing repudiation of these
attempts sparked their mid-1970s years of anger. Tooth and nail they opposed intensi-
fied assimilation and its aggressive policy of legal termination.
The outcome during that period was a series of national policy reversals entailing
official acceptance by the settler-state of aboriginal self-determination as the new
foundation of relations and law-making. These reversals mostly came during the latter
half of the 1970s. In all jurisdictions the principle was vague and unformed at that
stage, as indeed it remained for much (if not all) of the history that followed. If
anything aboriginal self-determination represented an ideal towards which national
practice strove unevenly, fitfully, and patchily and, even then, it was apt to be treated as
(or deliberately demoted to become) synonymous with self-management. Still, its
institutional acceptance by the beginning of the 1980s, even in the most diluted
version, directed the groundswell of aboriginal energy away from protest and into the
318 Aboriginal Societies and the Common Law

constitutional fold of policy- and law-making. In that way aboriginal protest became
legitimated and the era of self-determination began.
The policy of assimilation was not as all-bad as it tended to be depicted once the era
of self-determination was into bumpy stride. Some of its tenets, such as equal citizen-
ship rights (including social welfare and protection from racial discrimination), equal-
ity in standards of living, and equal pay for equal work, involved important rights for
aboriginal peoples.2 However, it was on the question of land that assimilation held an
especially ominous ring in that reserves and special tenurial systems were regarded as an
impediment to true equality. These spaces were often the sites of greatest aboriginal
deprivation, the persistence of which shamed the settler-state. Yet whilst the condition
of aboriginal people on these reservations and other marginalized land was often one of
shocking impoverishment, the reservation represented for many (particularly in North
America) their last vestige of territorial association. For aboriginal peoples the revival
of their culture was inextricably tied to their genealogical identity with land. Australian
politicians of the post-war assimilation period noted and spurned that concern with
geographical coherence particularly forcefully, seeing Aboriginal land rights as synonym-
ous with segregation. Hasluck proclaimed the assimilation policy (1951) as founded
upon the two characteristics of Australian democracy: equality of opportunity, and
the ideal of a society in which there shall be no minorities or special classes.3
For the indigenous peoples of North America and Australasia, the post-war threat to
their special legal status was ridden with irony. They now found themselves defending
legal regimes of which their historical experience had been largely negative. The vin-
tage regimes for aboriginal governance erected by the statute law of North America and
Australasia represented paternalistic regimes with both positive and negative shielding
effects. There had been massive bureaucratic intrusion into their lives, but the ill wind
had also blown protectively as something of a shield from the full brunt of the settler-
states capitalist economy and its transactional, individualist legalism. That ambival-
ence also became a motivating one for aboriginal activists, encouraging their
articulation of alternative legal approaches. They advocated models of aboriginal self-
governance inside the host common law system and under the mantle of specially pro-
tected legal status. The role of the legal system, they said, was not to suppress but to
accommodate and encourage aboriginal self-determination.
The models of aboriginal autonomy articulated by indigenous peoples were located
in either of two paradigms, each with distinct legal and constitutional implications.
The first was one of separate sovereignty derived from or associated with the Marshall
trilogy. By this model aboriginal nations retained and exercised their inherent sover-
eign authority independent of the settler-state government. The second was a model of
delegated authority that was associated with the legal regimes already in place. By the

2
The point is made well by Tim Rowse, Assimilation and After in Ann Curthoys, AA Martin, and Tim
Rowse (eds), Australians from 1939 (Sydney: Fairfax, Syme and Weldon Associates, 1987) 133149 at
133139.
3
[W]e want to build a society in which there shall be no minorities or special classes: Mr P Hasluck,
Report on the Native Welfare Conference, 18 October 1951. Text in S Stone (ed), Aborigines in White
Australia; A Documentary History of the Attitudes Affecting Aboriginal Policy and the Australian Aborigine
16971973 (London: Heinemann Educational Books, 1974) 193197.
An Overview of the Era of Aboriginal Self-Determination 319

latter approach aboriginal self-governance arose from the permission of the settler-state,
and was not inherent but permitted. Unsurprisingly, aboriginal peoples largely
subscribed to the first approach, their radical advocates most vocally. Governments
mostly opted for the second. That gap between the proponents of a separate aboriginal
sovereignty and those believing in a central, unified sovereign (in Australasia and
Canada termed the Crown) became an ideological battleground in the last quarter of
the twentieth century. It manifested the bi-polarity noted in the first chapter between
a legal history related as the expressions of will emanating from the dominant state
institutions and one generated entirely from within aboriginal cultures.
This sovereignty-talk waged in all countries. At the least, its appearance required all
legal systems to explain the status of aboriginal peoples in their constitutional scheme
of things. One consequence of this in the Anglo-Commonwealth jurisdictionsthe
one aboriginal activists had calculatedly soughtwas to re-animate the very issue
which Dicey and the Victorian jurists had believed indisputably settled, namely the
character of settler-state sovereignty. This was a discourse familiar to an American
polity whose constitutional tradition was based upon the justiciability and limitability
of sovereignty under the Constitution, although, even there, Congressional plenary
authority over the tribes was never fully gainsaid (except by the tribes and their sup-
porters). Aboriginal claims thus generated a growing sense of constitutional displace-
ment by raising direct questions about the location and nature of sovereignty within
the national legal systems. It became apparent during the last two decades of the
twentieth century that the older, more complacent notions of constitutional authority
were no longer tenable. Aboriginal claims necessitated and generated constitutional
revisionism. In the era of self-determination, sovereignty, like status, remained key.
During the 1960s and 70s, as they reacted against attempts to terminate or diminish
their legal status, aboriginal peoples stories attracted considerable public attention.
They told histories of mistreatment, of undertakings given officially and callously
broken. These accounts made a trail of histories that shocked and shamed settler
polities committed to the rule of law. These were histories of all scales, epic and domestic,
tales of whole peoples displaced and decimated, beside smaller-scale but equally
woeful tales of misery, exploitation, and loss. What made those histories so shameful
was the fact that the deprivations committed by the settler-state had occurred, indeed
often had been engineered, through the rule of law. Law was gravely implicated in
those historic processes of deprivation and oppression, and that was a harsh lesson for
liberal democratic polities committed to justice not merely in the contemporary world
but as an historically-validated phenomenon. One responsethe Australian one in the
late 1990s where Prime Minister Howard famously refused to apologize for the Stolen
Generationswas to deny that historical momentum to the contemporary sense of
justice. But this was a stubborn and rhetorical posture playing to a conservative elect-
orate. In all jurisdictionsAustralia (its courts especially) includedthe weight of his-
tory pushed for greater accommodation of aboriginal peoples inside the rights-place of
modern, common law constitutionalism.
In the era of self-determination that effectively commenced in the mid-1970s,
aboriginal groups presented themselves before government(s), court, and corporation,
demanding fuller account be taken of their presence and claims. As that activity
320 Aboriginal Societies and the Common Law

increased, it also became more complex. The era began with aboriginal peoples wanting
the legal system to recognize their aboriginal claims and status. Of itself and
unaccompanied by more sympathetic legal provision, recognition of the right to self-
determination accomplished little. The right was rhetorically rather than actually
being recognized. The host legal systems needed to convert a hostile legal habitat into
a more friendly and facilitative one. Gradually through the 1970s and 1980s the sev-
eral systems moved from awareness and political avowal of the principle towards its
more tangible expression. Those facilitative steps were uneven, often clumsy, and
short-sighted in approach, but they became more evident and mostly irreversible. In
those two decades legal activity lurched incrementally through statutory change and
court judgment generating a new, improvisatory form of legalism as it went. Old law
and new law met and often jarred. In the turbulent 1990s the several legal systems
seams were stretched sometimes to apparent bursting point. One might call the earli-
est phase a time of recognition, a period when the legal systems made renewed and
revised, though uneven, acknowledgment of the aboriginal presence and entitlement
to distinct status. Legal recognition implicitly accepted the principle of aboriginal self-
determination and the existence of a range of associated rights. Chapter 7 covers that
foundational period, calling it the era of recognition.
That period in which new legal foundations were laid, segued into the frenetic legal-
ism of the 1990s and new century (chapter 8). In the crucial decades of the 1970s and
1980s, as aboriginal peoples sought recognition and facilitation by the legal system of
their status and rights, a crude reductionism had been applied to their relations with
the state. This tended to depict aboriginal peoples as a monolithic political formation
pitted against the government. During the late 1980s, however, and certainly by the
1990s, a more sophisticated form of legal consciousness replaced that crude model.
The complexities of aboriginal politics and the variety of relationships involved in the
conduct of their affairs became apparent in the multiple fronts of legal activity. Law not
only operated in the sphere of aboriginal groups relations with the government (which
in the federal systems drew in all branches, including more increasingly States and
Provinces), but in inter- and intra-group settings as well. Municipalities and the cor-
porate sector were also making contracts routinely with aboriginal nations, friendly
consensus-based relations that, like those with other actors, also spilled over into the
adversarial.
In that regard the decade 198595 was pivotal. In those years the new trellis of legal
recognition was mostly (though not always thoroughly) erected in each jurisdiction.
The progressoften slow, but tangible nonethelesstowards settlement of aboriginal
claims through newly established procedures and mechanisms, demonstrated the
national legal systems had accepted and were now processing those claims. This
rehabilitation was one factor encouraging the enormous growth in tribal activity dur-
ing the 1990s. Tribal nations were also contracting to deliver governmental services to
their people, especially in North America. Asset re-vestment also brought tribal nations
into ventures with the business world, in such areas as tourism and mineral exploita-
tion. With the growth of tribal asset bases that these processes brought, issues of abori-
ginal governance and jurisdiction over resources (especially in the federal systems)
became increasingly important. The question was not whether aboriginal peoples were
An Overview of the Era of Aboriginal Self-Determination 321

self-determining; rather, because they were, the question was how that self-determining
activity was to be achieved through law and the extent of it, particularly in relation to
control over resources. The focus had moved from the recognition of aboriginal rights,
where the fundamental paradigm shift within the legal system had occurred, to the
integration and management of those rights inside the legal system.
The how question of governance arose because governments insisted that if consid-
erable assets and financial resources in settlement of claims or management of govern-
ment programmes were to vest in a group, there must be a suitable host legal regime.
The corporate sector interested in commercial relations with aboriginal groups also
demanded likewise. The antiquated legal regimes of the assimilation era were mostly
not up to this task, an incapacity that became more obvious and problematic with the
upsurge in aboriginal managerialism in the 1990s. From the governments perspective,
a proper regime would not only allow the transparent and accountable management of
tribal assets, but it would also constitute the group with clarity. This entailed clear rules
for ascertaining membership, and selecting and mandating leadership. The notion of a
tribal code is something of a contradiction in terms, yet that is what became required
of aboriginal polities in the post-recognition period of the 1990s.
As aboriginal groups became more active actors in national political and economic
life, it also became clear that the willingness of the constitutional systems to accom-
modate them was not an unconditional one. The extent to which they would be
allowed self-governance was constitutionally measured. It was not simply a matter of
restoring aboriginal governance by dismantling the imposed regimes that left settler-
state bureaucracies with overbearing discretionary authority. Nor was it simply a mat-
ter of constructing regimes with membership and leadership codes and with the
requisite managerial and financial accountability and transparency, important as gov-
ernments regarded those. There was also a pervasive belief within the constitutional
system of each jurisdiction that the aboriginal groups treatment of its members had to
comport with certain minimum standards. Aboriginal self-governance would be toler-
ated so long as it did not behave discriminatorily towards its own members, and had in
place mechanisms to prevent mistreatment and the over-centralization of authority.
This meant that aboriginal governance would be subject to an ongoing constitutional
audit by the settler-state. This qualification became particularly evident in the North
American jurisdictions from the mid-1980s, as the Bill C-31 controversy in Canada
revealed.
Questions of resource control became more pronounced trouble-spots during the
1990s, especially in the federal systems where aboriginal governance operated from a
land base. In these settings territorial governmental authoritiesStates, Provinces or
municipalitiesclaimed a competing right to manage certain resources or activity that
the aboriginal polity also sought to control. These jurisdictional issues added legal
complexity. Some were resolved in court, but also a growing number were being
addressed through agreements and protocols between the tribal and governmental
bodies.
By the 1990s, then, the centre of legal gravity had progressed from the foundational
questions of recognition to the ensuing questions of rights-integration and -management.
The legalism of the post-recognition era was built on the incomplete, sometimes shaky
322 Aboriginal Societies and the Common Law

foundations of the juridical recognition from which it proceeded. Integration of


aboriginal rights frequently entailed filling in the detail of earlier legal recognition.
This fleshing-out was a contested process that heated and excited the legal systems as
much as the initial convulsive act of recognition. Throughout recognition and integra-
tion, each legal system remained a highly fragile, excitable place, its lulls no more than
rest breaks, its inhabitants in a perpetual state of readiness for legal war. In the world of
aboriginal affairs, co-operation and contention were inseparable bedmates.
During the last quarter of the twentieth century aboriginal self-determination
moved from principle to practice in an uneven manner, notching some huge successes,
burying some dismal failures, and carrying the many that ran somewhere between.
Once each legal system had acclimatized to the revamped aboriginal presence, there
sprouted a growing cultural realization that the adversarial mode of interaction that
had marked the period of recognition was less suitable in the post-recognition world.
It was grasped that the recognition of aboriginal rights made during the previous
twenty years was a deep-seated change in the legal culture, one to be lived with rather
than niggled against and chipped at by the truculence of continuing litigation. That is,
governments, bureaucracies, municipalities, and corporations increasingly saw that in
the post-recognition period, co-operation with rights-endowed aboriginal parties
rather than rights-denying contestation was a better and more realistic option. There
was a growing feeling that differences over the extent of (still-unamplified) tribal rights
were better agreed by those concerned than left to courts. Rights-integration was best
accomplished co-operatively rather than competitively. The courts encouraged this
post-recognition theme of reconciliation. Increasingly they framed judgments that
nudged parties towards accommodation, although they worried contrariwise that
litigation involving aboriginal interests was coming before them with mounting
frequency.
Reconciliation was a motif of aboriginal affairs in the 1990s, particularly in the legal
sphere. It aspired to put aboriginal relations with the public and private (corporate
especially) constituents of settler society into a consensual, dialogue-based space.
During the 1990s agreements between aboriginal groups, governments, and corpora-
tions became a regular phenomenon. Although the adversarial manner of engagement
could never disappear, it was at least counterbalanced with a more evident awareness of
the possibility of co-operative relations. Nonetheless an indispensable condition for
reconciliation was the resolution of claims (chapter 9). This occupied the lions share of
aboriginal nations attention and effort from the mid-1980s as claims-making
and -resolution mechanisms climbed into gear. The dialogue and outcomes generated
in that sphere undoubtedly encouraged more consensus-based encounter elsewhere.
As the 1990s ended it was also clear that the repair of the regimes of aboriginal governance
was another increasingly important element of reconciliation. This constitution-building
of tribal nations had elements that were specifically legal, but it also necessitated broader
measures of capacity-building.
Reconciliation, it could be said, involved squaring the rights of aboriginal polities
with the overriding sovereignty and constitutional values of the settler-state. In that regard
it continued the historically-embedded insistence of the settler-state that aboriginal
presence would only be officiallyas in legallycountenanced on Anglo terms. The era
An Overview of the Era of Aboriginal Self-Determination 323

of self-determination might have been a significant new direction in settler-state


policy- and law-making, but for aboriginal societies it remained essentially the continua-
tion from their earlier history. The colonial condition may have been ameliorated, but
aboriginal peoples remained locked inside a history that still kept the onus of adjust-
ment on them. It was the hard reality (and history) from which escape was not possible.

***
The following chapters will elaborate those themes. The present chapter (6) describes
the reception inside the common law jurisdictions of the principle of aboriginal self-
determination and the general features of its history in each. The following chapter (7)
outlines the various processes of recognition through which each jurisdiction set in
place new legal foundations supporting self-determination. Reconciliation and govern-
ance became important themes of the post-recognition period that emerged in the
mid-1980s and accelerated through the 1990s and new century (chapter 8). The mod-
ern histories of claims resolution threw the passage from recognition to the post-
recognition concerns of the 1990s into particularly sharp relief (chapter 9). In their late
twentieth-century incarnation, the enduring questions of sovereignty and status
remained at the heart of legal development. Through the era of self-determination, law
both freed and constrained aboriginal peoples. The paradox was that the greater free-
dom and power they demanded inside the settler-state constitutional system, the more
its legalism surrounded them.

2. The United States


The United States was first to propose removal of the remaining special legal protection
of aboriginal peoples. The Hoover Commission (1948), appointed to review executive
branch reorganization, called for the complete assimilation of the Indians into the
mass of the population as full, tax-paying citizens.4 The report captured a sentiment
that had been lurking on Capitol Hill.5 Congress gave New York criminal jurisdiction
over all Indians in the state (1948),6 extending that to all civil disputes a year later.7 At
the time this legislation, limited to one state without the large territorially-distinct
reservations of the western interior, aroused little national controversy. Another bill of
1948 proposed the extension of state jurisdiction over reserves throughout the
country, but failed in the Senate after passing the House.8 Meanwhile the Bureau of
Indian Affairs (BIA) was moving to discredit the machinery of the IRA, a self-serving
tactic that its history of Caesar-like management of Indian affairs encouraged. One
Congressman spoke of the federal governments need to get out of the Indian
4
Commission on Organization of the Executive Branch of Government, Indian Affairs: A Report to
Congress (1949) 7780.
5
In May 1943 Oklahoma Senator Elmer Davis (later publicly supported by Senator K Wheeler, co-sponsor
of the Indian Reorganization Act) had introduced a report, S-310, calling for a unilateral abrogation of all
treaties with Indian nations, withdrawal of federal recognition and abolition of the Bureau of Indian Affairs:
Rebecca L Robbins, Self-Determination and Subordination: The Past, Present and Future of American
Indian Governance in M Anette Jaimes (ed), The state of Native America: genocide, colonization, and
6
resistance (Boston: South End Press, 1992) 87121, 98. Codified at 25 USC 232.
7 8
Codified at 25 USC 233. HR 4725, 89 Cong, 2nd Sess (1948).
324 Aboriginal Societies and the Common Law

business.9 Dillon Myer was appointed Commissioner of Indian Affairs and actively
pushed a BIA policy of moving Indians to the cities and disposing of reservation lands.
At this time the BIA was also allegedly meddling in tribal politics, freezing tribal funds
to stifle dissent, interfering with tribes efforts to obtain legal counsel and refusing to
build permanent facilities on reservation land (such as a hospital in Papago country)
because it would discourage urbanization.10
However, of the legislation and administrative practices devised after the war, the most
dramatic were Public Law 280 and the so-called Termination Act.11 Both issued in 1953
and reflected the more aggressive policy of assimilation then holding sway in Congress.12
Public Law 280 dealt with the difficult and sensitive issue of state jurisdiction in
Indian country. During the 1940s specific legislation had been passed for named reser-
vations, but the 1953 law was general in application, providing a mechanism by which
states might assume criminal and civil jurisdiction in Indian country by express legis-
lative enactment. This law was an attempted compromise between wholly abandoning
the Indians to the States and maintaining them as federally-protected wards subject
only to federal and tribal jurisdiction. It satisfied neither the Indians, highly distrustful
of States designs on their land and resources, nor the States. Indeed President
Eisenhower had signed the bill reluctantly, describing the open-ended grant of State
jurisdiction without reference to Indian consent an unChristianlike approach.13
Legal argument inevitably arose as to the scope of the statute and the jurisdiction
assumed by the States. Nonetheless there was a very real law-enforcement issue, as
criminal jurisdiction as well as policing on Indian land was irrationally fractionated at
the time. The extension of State criminal jurisdiction was not the only possible
solution to that problem but it was the cheapest.14 Despite that practical need,
however, and like the Termination Act, Public Law 280 had a distinctly assimilationist
ring. The refusal of the Supreme Court (1974) to invalidate State legislation asserting
partial jurisdiction under the non-consensual provisions of Public Law 280, and its
endorsement of checkerboard jurisdictions on reservations, confirmed that view.15 In
1968 it was amended, requiring Indian consent for all further State acquisition of
jurisdiction over their land.
The Termination Act was not actually a statute so much as a call by Congress for
statutes terminating the status of recognized tribes, so ending their eligibility for federal
benefits and services, and legal privileges attending the tribes residual sovereign status.

9
Representative Saylor of Pennsylvania (1953), quoted in Oliver, The Legal Status of the American
Indian Tribes (1959) 38 Oregon L Rev 193, 238 n 247.
10
F Cohen, The Erosion of Indian Rights, 19501953 (1953) 62 Yale LJ 348, 352359.
11
House of Congress Concurrent Resolution 108, 1 August 1953. See C Wilkinson and Biggs, The
Evolution of the Termination Policy (1977) 5 American Indian L Rev 139.
12
For example the observations in Bryan v Ithaca Country 426 US 373 (1976) and Washington v
Confederated Bands and Tribes of the Yakima Indian Nation 439 US 463 (1979).
13
Donald J Burnett Jr, An Historical Analysis of the 1968 Indian Civil Rights Act (1972) 9 Harvard J
of Legislation 557, 568569. The President promised a bill requiring State consultation and Indian consent,
but that measure did not eventuate (until 1968).
14
G Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians (1975) 22
UCLA L Rev 535.
15
Washington v Confederated Bands and Tribes of the Yakima Indian Nation 439 US 463 (1974).
An Overview of the Era of Aboriginal Self-Determination 325

House Concurrent Resolution 108,16 as it was known, resulted in a sequence of


termination statutes:
Major [termination] legislation affecting particular [nations] came out of the second session of
the Eighty-third Congress in 1954. Among [the tribes] involved were the comparatively large
and wealthy Menominee of Wisconsin and the Klamath of Oregonboth owners of extensive
timber resources. Also passed were acts to terminate . . . the Indians of western Oregon, small
Pauite bands in Utah, and the mixed bloods of the Uintah and Ouray Reservations.17 Approved,
too, was legislation to transfer administrative responsibility for the Alabama and Coushatta
Indians to the state of Texas . . . Early in the session of the Eighty-fourth Congress, bills were sub-
mitted to [terminate] the Wyandotte, Ottawa and Peoria of Oklahoma. These were finally
enacted in August of 1956, a month after passage of legislation directing the Colville
Confederated Tribes of Washington to come up with a termination plan of their own18 . . . During
the second administration of President Dwight D. Eisenhower, however, Congress enacted only
three termination bills relating to specific [tribes] or groups. Affected by this legislation were the
Choctaw of Oklahoma, for whom the termination process was never completed, the Catawba of
South Carolina, and the Indians of the southern California rancherias.19
Between 1953 and 1958 one hundred and nine tribes were unilaterally terminated by
Congress. The policy had an immediate ruinous impact on the terminated tribes and
sent a shock through Indian country that continued to reverberate in the new century,
particularly for those that had suffered it. From that time individual tribal histories
became tales of their attempts to regain federal recognition. 20 Secretary for the Interior
Seaton tried to calm the storm by announcing (1959) that no tribe would be termin-
ated unless it fully understood the programme and consented to it; however several
individual processes were already in train.21 It was not until 1962 that termination had
effectivelythough not completelyended.22
Alongside termination, Public Law 959 (1956), the Relocation Act as it was
known, encouraged reservation Indians to move to federally-approved urban centres.
The Act offered a relocation incentive by meeting moving expenses, the cost of estab-
lishing a new residence and a brief period of job training. Movement away from the
tribe ended tribal association (although many stayed enrolled), hence the urban
Indians no longer remained a federal responsibility. The policy continued until 1980
when the BIA finally closed its urban employment centres.23 However the policy:
. . . led to a sudden mass exodus of Indians from their reserved territories, with some 35,000
being relocated to such places as Los Angeles, San Francisco, Denver, Phoenix, Minneapolis,

16
HR Congress Resolution 108, 83rd Congress, 1st Session, 99 Cong Rec (1953).
17
See Angie Debo, A History of the Indians of the United States (Norman: Oklahoma University Press,
1984) 371372.
18
On this see Nagel, American Indian Ethnic Renewal, 214217. This direction split the Colville community.
19
James E Officer, Termination as Federal Policy: An Overview in Kenneth R Philp (ed), Indian Self-
Rule: First Hand Accounts of Indian-White Relations from Roosevelt to Reagan (Salt Lake City: Howe Brothers
Publishers, 1986) 118, 125.
20
See S Herzberg, The Menominee Indians: Termination to Restoration (1978) 5 American Indian
21
L Rev 143. Burnett, Historical Analysis of the Indian Civil Rights Act, 570.
22
In fact a number of tribes were terminated during the Kennedy Administration and in the early years
of the Johnson Presidency: Nagel, American Indian Ethnic Renewal, 216.
23
Officer, Termination as Federal Policy, 126.
326 Aboriginal Societies and the Common Law

Seattle, Boston, and Chicago during the years 195759 alone. Despite early (and ongoing)
indications that the relocation experience was a disaster, both for the individuals involved and for
their respective nations, by 1980 ongoing federal pressure had resulted in the migration to cities
of slightly over half of all American Indians (about 880,000 of the approximately 1.6 million
reflected in the 1980 census).
The termination policy sent a clear message that Congress intended to dissolve the
tribes by withdrawal of federal services. The Supreme Court endorsed that message in
Tee-Hit-Ton Indians (1954) when it held that Congress could cancel certain tribal
property rights at its discretion and without compensation.24 This judgment kept
tribal governments in a Constitution-free zone. Although the Court of Claims later
moderated its impact,25 Tee-Hit-Ton Indians licensed divergent approaches in lower
federal courts to questions of tribal sovereignty.26 Two widely publicized decisions in
Navajo country reaffirmed the principle of tribal sovereignty and the concomitant
exclusion of Constitutional review, holding the First and Fourteenth Amendments as
unavailing against the tribes.27 In Williams v Lee (1959) 28 the Supreme Court con-
firmed the absence of State civil jurisdiction on the reservation without any measure
under Public Law 280. This meant a State court could not compel payment by an
Indian for goods purchased from a non-Indian store on the reservation.
The Navajo decisions excepting tribal governance from Constitutional review
prompted a preliminary inquiry by the Senate Subcommittee on Constitutional
Rights. That broadened into a fuller inquiry that, in turn, eventuated in the Indian
Civil Rights Act (ICRA) (1968). This Act rendered tribal governments subject to a
moderated form of Constitutional review and will be discussed more in later chapters.
Indian resistance to the policy of termination and relocation had resulted in some
stand-offs and incipient militancy,29 but it was not until the late 1960s that a more rad-
ical style and generation burst forth. The militant American Indian Movement (AIM)
was founded in 1968, and the next year there began the extended occupation
(196970) of Alcatraz Island under the banner of a coalition called Indians of All
Tribes. A series of other high-profile physical confrontations followed.30
In any event, by the early 1960s government support for termination had begun to
wane. President Johnson formally renounced the termination policy in 1968 in an
address to Congress entitled The Forgotten American.31 A message to Congress in
24
Tee-Hit-Ton Indians v United States 348 US 272 (1954).
25
United States v Seminole Indians 180 Ct Cl 315 (1967); Whitefoot v United States 155 Ct Cl 127 (1961);
Tlingit and Haida Indians v United States 147 Ct Cl 315 (1959).
26
Burnett, Historical Analysis of the Indian Civil Rights Act, 571.
27
Martinez v Southern Ute Tribe 249 F 2nd (10th Cir 1957), cert denied 356 US 960 (1958); Native
American Church v Navaho Tribal Council 272 F 2nd 131 (10th Cir 1959).
28
358 US 217 (1959).
29
For example the Blackfeet of Montana, aided by their naturalized citizen, the famous lawyer Felix
S Cohen, used both the courts and confrontation during the early 1950ssee Felix S Cohen, The Erosion
of Indian Rights, 195053: A Case Study in Bureaucracy (1953) 62 Yale LJ 117127.
30
Robbins, Self-Determination and Subordination, 100104. See also the detailed account of this
militancy in Nagel, American Indian Ethnic Revival, 213233; and Troy Johnson, The Roots of
Contemporary Native American Activism (1996) 20 American Indian Culture and Research Journal 127.
31
Address by President Lyndon Johnson to Congress, 6 March 1968, reprinted in Public Papers of the
Presidents (Washington: Government Printing Office, 1970) 335.
An Overview of the Era of Aboriginal Self-Determination 327

1970 by President Nixon confirmed the new era of self-determination. Influenced by


the example of the Zuni Pueblo,32 he announced a new direction in federal policy:
Federal termination errs in one direction, Federal paternalism errs in the other. Only by clearly
rejecting both of these extremes can we achieve a policy which truly serves the best interests of
the Indian people. Self-determination among the Indian people can and must be encouraged
without the threat of eventual termination . . . This, then, must be the goal of any new national
policy toward the Indian people: to strengthen the Indians sense of autonomy without
threatening his community. We must assure the Indian that he can assume control of his own life
without being separated involuntarily from the tribal group.33
The first gesture by the federal government under this new policy was the return of the
Blue Lake Lands to the Taos Pueblo in 1970.34
Successive American Presidents used this rhetoric of self-determination even if their
actions, such as federal cost-cutting under the Reagan Administration, compromised
it. Congress also displayed an overall willingness during the last quarter of the century
to promote Indian self-determination. Extremist elements occasionally reared an abroga-
tionist head, but that intolerant right-wing sentiment cut against a mostly sympathetic
grain in Congress. These antagonists of Indian rights beat the drum of equality as a
means of dissolving those rights. In 1978, for example, a federal bill was introduced.
Disingenuously entitled the Native American Equal Opportunity Bill, it proposed
the abrogation of treaties and the elimination of all special rights and status for
Indians.35 Similarly, equal protection claims were brought in the courts against tribes
and tribal governance, a phenomenon discussed more fully in the next chapter.
Somewhat besieged in the courts during this period, Indians regarded the Supreme
Court as an ambivalent and unreliable champion of tribal sovereignty (although there
was a more positive disposition towards the Burger than the reviled Rehnquist Court),
whereas Congress was viewed more warmly.
Congress passed three important Indian-related statutes during the 1960s. One of
these, the ICRA 1968, will be considered more fully later because, more than any other
legal measure, it set out the fundamental condition for tribal self-governance. The con-
dition was tribal compliance with basic western constitutional norms. An earlier law of
1966 authorized any recognized Indian tribe to file suit in federal courts without refer-
ence to amount for cases based on the Constitution, treaties or other law. The Indian
tribe thus obtained a clear capacity to sue and that enabled them to commence
proceedings for the vindication of rights (such as hunting and fishing) that the federal
government had not pursued satisfactorily. The amendment of Public Law 280 was also
made in 1968.

32
Duane Champagne, Beyond Assimilation as a Strategy for National Integration: The Persistence of
American Indian Political Identities (1993) 3 Transnational Law and Contemporary Problems 109, 126:
the conservative and relatively well integrated pueblo community excluded BIA administration from its
community by contracting for BIA and federal services, and putting federal programs under local control.
33
President Richard Milhous Nixon, Special Message on Indian Affairs, 8 July 1970. Extracts in Prucha
(ed), Documents of United States Indian Policy, 256, 257.
34
Act of 15 December 1970, Pub L No 91-550, 84 Stat 1437. Extracts of President Nixons address are
in Prucha (ed), Documents of United States Indian Policy, 259260.
35
HR 13329, 95th Cong, 2nd Sess.
328 Aboriginal Societies and the Common Law

The message by President Nixon to Congress in 1970 had affirmed the strengthening
of Indian self-government as the central theme of policy. Soon after, the Alaska Native
Claims Settlement Act 1971 (ANCSA) was passed. Heralded at the time as a positive
breakthrough for aboriginal rights, it later became regarded as a tarnished and highly
imperfect settlement. The Indian Self-Determination and Education Assistance Act
1975 and the Child Welfare Act 1978 were the most important statutory manifesta-
tions of the course announced in 1970, although there was a raft of other statutory
measures improving the provision of federal finance, education, and health facilities.
The 1975 Act established what became known as 638 contracting, by which a tribe
contracted to supply federal services to its members. In the midst of that the American
Indian Policy Review Commission (1977) released its report recommending the con-
tinuation of federal protection and enhancement of tribal government. The
Commission had been set up to give a comprehensive report on Indian policy and
law.36 One outcome was the re-establishment of the Senate Select Committee on
Indian Affairs, which was eventually put on a permanent basis.37
The Reagan and Bush (Senior) Administrations maintained the policy of self-
government despite the feeling that the new emphasis upon tribal self-financing had
assimilationist tendencies. In keeping with the entrepreneurist Reaganite outlook, the
important Congressional legislation of that period concentrated upon the economic
development of the reservation land base of the tribes. A series of 1982 statutes dealt
with tribal government, tax status, mineral development, and reserve tenure reform.
Of the statutes in the Reagan and Bush years, the Indian Gaming Regulatory Act
(IGRA) (1988) was especially notable. It established a Commission to regulate on-reserve
gambling.38 Indians were poised to take advantage of their jurisdictional status con-
firmed by the Supreme Court (1987) to foster on-reserve gaming, a delicious and
lucrative as well as literal reversal of historical fortune: Indian tribes now exploited the
weakness of non-Indian society for gambling (and imbibing as they went). To open
gambling operations a tribe needed federal recognition plus trust lands, qualifications
that several eastern as well as western groups met. The dramatic emergence of gambling
on reservations intensified the already fraught relations between States and tribes.
Alongside that general legislation came a pattern of special Congressional legislation
restoring recognition to individual tribes who had suffered termination. Undoing
termination, which entailed lobbying the federal authorities for restoration of recogni-
tion, effectively set the political agenda for many tribes through the last quarter of the
twentieth century. Histories proliferated in that period of tribal struggles to regain rec-
ognized status. Yet despite the disowning of the policy of assimilation, Congress was

36
Senate Joint Resolution no 133 was sponsored by Senator James Abourezk in 1973 to establish a
Federal Commission to review all aspects of policy, law, and administration relating to affairs of the United
States with American Indian tribes and people. The Senate and the House of Representatives both adopted
the Resolution which was signed into law on 2 January 1975, establishing the American Indian Policy
Review Commission (Public Law 93-580).
37
The Commission had recommended an Indian Affairs Committee in Senate. Senate Resolution 405,
to make the Select Committee on Indian Affairs a permanent committee of the Senate, was introduced by
Senator Abourezk on 22 February 1978. The Rules Committee amended the motion to give the Committee
another two years of life. However the 96th Congress (S Res 448) gave the Committee permanence.
38
25 USC 2701; 102 Stat 2467.
An Overview of the Era of Aboriginal Self-Determination 329

not as freehanded in that process as the rhetoric of self-determination had augured.


Many tribes found the process enervating and depleting. In 1978 federal regulations
were passed enabling groups to become recognized, and over the next two decades
some 150 non-recognized Indian communities commenced the laborious process. In
the 1990s that process was complicated, and in some minds, hampered by many of
those groups obvious designs on obtaining recognition and trust land in order to open
casinos.39
South Carolina v Catawba Indian Nation (1985) illustrated the extent of the damage
caused by termination and signalled also the future unreliability of the Supreme Court
for support. The majority judgment was that the termination statute of 1959 had the
incidental effect of applying a South Carolina statute of limitations to the Catawbas
pre-existing and long-standing claim to lands the State purported to purchase from the
tribe in 1840 in breach of the Nonintercourse Act. The Catawbas had been assured that
termination would not affect their claim but in the event the Supreme Court decided
otherwise.40 In the Oneida Indian case of the same year the Supreme Court had
accepted that limitations did not apply to the Oneida Indians claim also under the
Nonintercourse Act.41 Their claim, however, was not hampered by termination legis-
lation, which left the odd result that the tribe with the lesser record of dealings with the
federal government was in the better legal position. The more trusting tribe was left the
worse off.
Tribal governance under the IRA was also amplified during this period, mainly as a
result of Congressional pressure. One feature of the IRA constitutions noted in the last
chapter was their standard reservation of considerable powers for the Secretary of the
Interior. Typically the boilerplate constitutions included a veto power over such tribal
actions as the assessment of dues, fees and taxes against nonmembers, the removal of
nonmembers from the Indian community, the control of private land sales by mem-
bers, the enactment of criminal and civil codes, and the appointment of guardians for
minors and incompetents.42 In 1964, as the Termination era was passing, a Senate
Subcommittee criticized that practice as not being required by any federal statute but
as being derived entirely from the terms of the constitutions themselves.43 The Indian
Policy Review Commission (1976) criticized the use of the approval power, noting
acerbically the irony of a power generally intended to strengthen tribal governance
being now generally regarded by the Indian people as an impediment to their govern-
mental functions.44
Tribes were entitled to organize and write new constitutions or amend their existing
constitutions under the IRA, but until 1986 those powers were caught up in BIA red
tape concerning the tribal elections to ratify constitutional change. The Secretary had
39
Indian rights scholar, Imre Sutton, advised Indian communities to separate the desire for a casino from
the quest for recognition: Land Restoration and Casinos are Separate Issues, Los Angeles Times, 17 August
39
1997, B7. 476 US 498 (1985).
41
470 US 226 (1985).
42
Kelly, Indian Adjustment and the History of Indian Affairs (1968) 10 Arizona L Rev 559, 568.
43
Senate Committee on the Judiciary, Summary Report of Hearings and Investigations by the Subcommittee
on Constitutional Rights, 88th Congress, 2nd Sess 14 (1964).
44
Report on Tribal Government: Final Report to the American Indian Policy Review Commission, Task Force
Two, Tribal Government (Washington: United States Government Printing Office 1976) 188189.
330 Aboriginal Societies and the Common Law

insisted that the approval power of tribal constitutions required him to approve the
draft change before it was put to the band. Such pre-election clearance was necessary,
it was argued, to prevent the tribe from approving provisions the Secretary would then
feel obliged to veto, thus requiring another expensive and time-consuming election.45
That device was successfully challenged by three tribes in the Coyote Valley Band case
(1986).46 Amendment of the IRA soon followed (1988).
Alongside Congress the courts also encouraged the revitalization of tribal gover-
nance, especially the Supreme Court during the 1970s. However, and as later chapters
show, the earlier judicial receptivity turned into growing ambivalence. Williams v Lee
(1959) presaged a revised judicial outlook more sympathetic to Indian self-governance.
At that time the jurisprudence was sparse although the foundational principles were
clear, but through the 1970s it developed, culminating in the Martinez case (1978).
This case stimulated Indian self-determination considerably and fostered considerable
growth in tribal courts on the reservation. As the tribes legal authority was clarified in
the courts and its exercise given surer legal footing, tribal land-ownership also grew. It
rose by 16 million acres from 1970 to 1992, reversing the trend of dispossession and
extending Indian country.47 By the early 1990s, with Chief Justice Rehnquist at the
reins, the Supreme Court was backtracking on Indian sovereignty, as its position on
the Alaskan and Hawaiian tribal nations showed. However the revitalization of the
previous three decadesto which the Court had undoubtedly contributed, for all its
later misgivingswas irreversible.
Congressional legislation of the 1990s, particularly in the Clinton era, was highly
supportive of the forward momentum as the Presidents policy announcements and
executive orders made plain. An Executive Order of 2000 re-emphasized the extent to
which the Administration, as opposed to the begrudging Supreme Court, understood
the legal history motoring its relations with the tribes. The Order reaffirmed the fun-
damental principle of tribal self-government and the conduct of relations on a
government-to-government basis. It enjoined all federal agencies to incorporate full
respect for tribal sovereignty into their application of federal statutes, regulations, and
programmes, and further instructed them to audit their procedures to ensure each had
a meaningful accountability programme for tribal input.48
By the 1990s the challenge for the American legal system had become one of recon-
ciling its own highly individualistic predicates and principles with those of tribal self-
determination. That dynamic had several institutional settingsthe tribes, the
Administration, Congress, the States, the federal and State courtsall conditioned by
their own internal agendas as well as the politics of multiple institutional engagement.
Now that the old policy of forgetfulness had been replaced by a more proactive and
45
Clinton et al, Federal Indian Law, 370.
46
Coyote Valley Band of Pomo v United States 639 F Supp 165 (ED Cal 1986), 173.
47
David H Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in
Indian Law (1996) 84 California L Rev 1573, 1593.
48
Consultation and Coordination with Indian Tribal Governments, Executive Order no 13175,
6 November 2000, 65 FR 67249. Also similar announcements in Memoranda of President Government-
to-Government relations with Native American Tribal Governments, 29 April 1994, 59 FR 22951 and
Executive Order no 13084 relating to consultation and co-ordination with Indian tribal governments,
14 May 1998, 63 FR 27655 (superseded by Order of 6 November 2000).
An Overview of the Era of Aboriginal Self-Determination 331

entrepreneurial tribalism, the increased activity on all those sites generated a considerable
increase in law and drove the encounter into the new century.

3. Canada
Canadian Indian policy moved out of its policy of benign neglect during the 1960s.
The old policy was set in the restrictive mechanisms of the Indian Act, which reduced
native life to the complete supervision of federal officials on reservations. The Act had
been revised in 1951 when a more proactive approach towards removing the special
legal protection of status Indians first appeared. The revision that was passed in 1951
was a highly diluted version of an earlier Bill (Bill 267) that had generated considerable
outcry, not least from John Dieffenbaker, for the failure to consult aboriginal leaders.49
Nonetheless the prevalent philosophy remained that of assimilating aboriginal peoples,
the new orientation being towards quickening that process. Such measures as the dou-
ble mother rule and compulsory enfranchisement of any Indian woman marrying a
non-Indian reflected a legislative aim of whittling down eligibility for status. The revised
Act also contained section 88, making Indians subject to provincial laws of general
application (though qualified by any treaty rights). At this time there was a growing fed-
eral conviction (similar in tone to the American view of the States position) that the
Provinces had an active role to play in achieving the long-term goal of assimilation. The
largely unnoticed passage of what later became a controversial provision was undoubt-
edly intended to draw the Provinces into the administration of Indian affairs.50 In 1961
the Joint Committee of the Senate and House of Commons had recommended the
Indian Affairs branch (then a part of the Department of Citizenship and Immigration)
speed up the process of integrating Indians into the wider society. In practice, however,
Indian policy remained marooned in the century-old policy of contained neglect.51
The first and most important volume of a government-commissioned audit of
Indian life (196367), the so-called Hawthorn Report, was published in 1966.52 The
team pessimistically described the stifling effect of the Indian Act regime on aboriginal
lifestyle but noted the unlikelihood of Indians achieving self-reliance in the near
future. The report further noted the lack of aboriginal political organization, although
it recommended Indian people should be consulted when major legislation affecting
their interests was considered.53
49
The 1951 amendments to the Indian Act were the culmination of a process that had begun in 1946
when a Special Joint Committee on Indian Affairs was established by the Senate and the House of
Commons. This Committee spawned a royal commission, conducted three years of hearings and issued
reports in 1946, 1947, and 1948 as well as establishing a subcommittee to prepare in association with the
Indian Affairs Branch, draft legislation that would reflect its deliberations.
50
Kerry Wilkins, Still Crazy After All These Years: Section 88 of the Indian Act at Fifty (2000) 38(2)
Alberta L Rev 458.
51
SM Weaver, Making Canadian Indian policy: the hidden agenda 196870 (Toronto: University of
Toronto Press, 1981) 20.
52
The Report was the outcome of submissions made by a delegation of the IODE (Independent Order
of the Daughters of the Empire) to the then Minister of Indian Affairs, Richard Bell, urging a three- to five-
year study to determine how Indians could achieve equality of opportunity with other Canadians.
53
HB Hawthorn (ed), A Survey of the Contemporary Indians of Canada, A Report on Economic, Political,
Educational Needs and Policies (Ottawa: Indian Affairs Branch, 1966), especially ch xviii The Politics of
332 Aboriginal Societies and the Common Law

The Hawthorn Report also explored the philosophy behind Indian special status,
coining as a description the term Citizens plus. The report emphasized the element of
choice missing in aboriginal life, whether that meant remaining in their communities
or leaving them. But regardless, Indians can and should retain the special privileges of
their status while enjoying full participation as provincial and federal citizens.54 The
federal government should not encourage assimilation as this was a matter for Indians
themselves, but it should protect their special status and act as a national conscience to
see that social and economic equality is achieved between Indians and Whites.55
Official response to this notion was initially ambivalent56 and by 1969 openly rejected.
During the mid-1960s, as the Hawthorn team was completing its survey, a number
of programmes were implemented by Indian Affairs to move Indian policy out of stag-
nancy, including draft legislation for an Indian Claims Commission. Indian treaty and
aboriginal title claims continued to be the most problematic area of government rela-
tions with the First Nations. It was plain that little progress on economic and social
matters could be made, and certainly Indian support could not be won, unless these
claims were satisfactorily addressed. Meanwhile another initiative, the devolution pro-
gramme, for the first time brought the Provinces into the provision of government
services for Indians, and directly foreshadowed the White Paper policy of 1969. As so
often in aboriginal policy this was as much a financial as measure of principle, aimed at
transferring federal financial responsibilities to the Provinces. Unsurprisingly it floun-
dered, the Provinces torn between acquiring more authority over native peoples and
their resources and the cost of doing so.57 The community development programme
developed within Indian Affairs tried to encourage Indian self-management, but ran
up against ingrained bureaucratic habits, the powerful seniority of Indian agents
reluctant to shed both their own authority and the disbelief that Indians could ever
manage under their own steam.
In 1969 the federal government under Prime Minister Trudeau issued its White
Paper on Indian Policy. The paper proposed the structural integration of Indians into
Canadian society and the elimination of federal tutelage. Born of Trudeaus ultra-liberal
vision of a state under laws which were culturally and ethnically undifferentiating, the
White Paper advocated repeal of the Indian Act, removal of the special legal status of
Indians, the dismantling of the Department of Indian Affairs, and the extensive
involvement of the Provinces in the delivery of social and other services to Indians on
and off the reservation. To First Nations its self-description as white was no accident.
Prime Minister Trudeau explained that the federal government would recognize treaty
rights (we will try to bring justice in that area and this will mean perhaps the treaties
shouldnt go on forever58) but not aboriginal rights:
But aboriginal rights, this really means saying, We were here before you. You came and you
took the land from us and perhaps you cheated us by giving us some worthless things in return
Indian Affairs, and see p 365 describing the Department of Indian Affairs as a version of colonialism and a
quasi-colonial government.
54 55 56
Ibid 7. Ibid 13. Weaver, Making Canadian Indian Policy, 79.
57
Weaver, Making Canadian Indian Policy, 2829.
58
Prime Minister Trudeau, Remarks on Aboriginal and Treaty Rights, speech given 8 August 1969 in
Vancouver, BC. Excerpts in Cumming and Mickenberg (eds), Native Rights in Canada, 2nd edn, App vi, 331.
An Overview of the Era of Aboriginal Self-Determination 333

for vast expanses of land and we want to re-open this question. We want you to preserve our
aboriginal rights and to restore them to us. And our answer. . . our answer is no. If we think of
restoring aboriginal rights to the Indians well what about the French who were defeated at the
plains of Abraham? Shouldnt we restore rights to them? And what about though the Acadians
who were deportedshould we compensate them for this? . . . What about the Japanese
Canadians who were so badly treated at the end or during the last war? What can we do to
redeem the past?59
Indian reaction against the White Paper was immediate and forceful. The First Nations
rejected both the procedure accompanying its preparation and publication, which
appeared to neglect completely aboriginal submissions, and the assimilationist philosophy
of its content. In their view the Hawthorn Reports description of aboriginal people as
Citizens plus had become one of Citizens minus.
At the same time as the government was proposing the elimination of the special
legal rights and status of aboriginal peoples, pan-aboriginal movements were forming
in Canada. The National Indian Brotherhood was born in 1968 from the National
Indian Council, which had been drawn from middle-class and urban Indians. The
Council had lacked credibility amongst Indians and its concern with packaging a
favourable impression to non-Indians was an older conciliatory approach that did not
suit the emergent radicalism of the time.60 By the late 1960s Indian political mobiliza-
tion was becoming a matter of concern within government, although the vehemence
and power with which aboriginal people excoriated the White Paper demonstrated the
governments under-estimation of this politicization. In March 1971 Indian Affairs
Minister Jean Chrtien delivered a speech widely seen as formally retracting the White
Paper.61 It was thus consigned to historical notoriety.
However, though moving from the philosophy of the White Paper, the federal gov-
ernment still refused to countenance any notion of aboriginal rights. That refusal left
government and aboriginal peoples in an apparent impasse, the latter alleging rights
that the former refused to concede. The stalemate was dramatically shaken by the judg-
ments of the Supreme Court of Canada in the historic Calder case (1973). Until this
case there had been limited judicial recognition of aboriginal property rights at
common law and under treaty.62 The Nishgaa claim to an aboriginal title over their
ancestral lands in northern British Columbia had been a long-standing grievance63 and
one that was not to reach settlement until the end of the century. The case turned on
a technicality about impleading the Crown but this was largely ignored in the light
of the rulings on the substance. The Supreme Court divided evenly on the question of
extinguishment of the Nishgaa Nations common law aboriginal title, although all were
agreed that this title existed at common law. That judicial recognition of the common law
59
Ibid 331332.
60
E Elmer Patterson II, The Canadian Indian: A History Since 1500 (New York: Macmillan Publishing,
61
1972) 177. Weaver, Making Canadian Indian Policy, 187.
62
This had been piecemeal and based mostly upon statutory recognition of fishing and hunting rights
(including those in the Prairie Provinces under the Natural Resources Transfer Agreement 1925): for exam-
ple R v Sikyea [1964] SCR 642; R v White and Bob (1965) 50 DLR (3rd) 613 (BCCA), affd (1966) 52 DLR
(3rd) 481 (SCC); R v Wesley [1964] SCR 81.
63
See WH McConnell, The Calder case in Historical Perspective (1974) 38 Saskatchewan L Rev
88122.
334 Aboriginal Societies and the Common Law

basis of aboriginal title forced the federal government to reverse its policy. Two cases
soon after, Baker Lake (1980) 64 and Guerin (1984),65 confirmed the Calder case. A fed-
eral government committed to the rule of law and a Prime Ministerthe one formerly
dismissive of common law aboriginal rightsminded to strengthen it (by patriation of
the constitution incorporating a Charter of Rights and Freedoms) could not ignore
this judicial intervention.
These cases left much unanswered about the character of common law aboriginal
rights, in particular the broader associated right to self-government. They signalled
however the willingness of courts to usher legal principle into the management of abo-
riginal relations and the demise of the old approach with its hands-off deference to
Crown administration. In the years after Calder the judicial formation of doctrine was
(it will be seen) a haphazard enterprise, but at least in the 1970s and 1980s what was
crucial was simply the judicial willingness itself. That gave an impetus to processes
those of negotiation and consultationwhich Calder put in train. Governmental and
aboriginal trepidation about the outcome of last-resort litigation drove relations in this
period as much as a new-found but still emergent willingness to engage. In 1974 a pol-
icy paper entitled Indian-Federal Government Relationships was developed by the
federal government. Its principles were based on the concept of a partnership between
the federal government and First Nations.66 At this time and into the early 1980s the
federal governments vision of aboriginal self-determination remained a limited one67
that only gradually became replaced by a broader, more permissive, and constructive
outlook. In that regard, the Mackenzie Valley Pipeline Royal Commission (1977) was
a milestone. Chaired by Thomas Berger, with whose name the report has since been
warmly associated, this report nudged self-determination into official vocabulary.
By the late 1970s Prime Minister Trudeau had put constitutional revision and
renewal on the political agenda. The British North America Act 1867, an imperial
statute, was patriated as The Constitution Act, 1982. The Act included a Charter of
Rights (sections 1 to 34), as well as section 35(1) recognizing the existing aboriginal
and treaty rights of the First Nations. This moved the goalposts from whether aborigi-
nal rights were recognized by the common law to the question of their constitutional
extent, this latter category (constitutional rights) being regarded as a more compen-
dious category than the former.
By the time of constitutional patriation in 1981 Canadian policy had long since
moved to a recognition in principle of the right of First Nations to self-determination,
although practical movement towards that goalsuch as the much-vaunted though
never achieved reform of the Indian Acthad been slight. A recognition in principle
of aboriginal territorial integrity had been the broader outcome of the Calder case,
implying at least a right of self-management (title-associated self-government).
However that right, whatever its character, did not reach the Indian bands who had
entered treaties and occupied lands reserved for Indians under the Indian Act.
64
Hamlet of Baker Lake v Minister of Indian Affairs [1980] FC 518 esp 557559.
65
[1984] 2 SCR 335.
66
David Nicholson, Indian Government in Federal Policy: An Insiders Views in L Little Bear, M Boldt,
and JA Long (eds), Pathways to Self-Determination: Canadian Indians and the Canadian State (Toronto:
67
University of Toronto Press, 1984) 59, 6061. Ibid 64.
An Overview of the Era of Aboriginal Self-Determination 335

The issue from the 1980s became whether or not the right to self-government was
included in the scope of section 35(1). Section 37 required the holding of a series of
constitutional Conferences. The required four were held but with no progress towards
specification of the right of self-government. Further elaboration of aboriginal rights in
the Constitution itself fell from the agenda until the ultimately unsuccessful
Charlottetown Accord (1992). Although not achieving actual constitutional elabora-
tion of aboriginal rights, these Conferences set off a sustained series of institutional
engagement involving the federal and provincial governments as well as aboriginal
representatives.
Meanwhile, two high level Reports during the 1980s, the Penner (1983) and
Coolican68 (1985) Reports, recommended the implementation of measures for abo-
riginal self-government.69 The former turned the Canadian discourse towards use of
that termself-governmentwhich thereafter came vernacular. It also made a series
of recommendations presaging those of the Royal Commission more than a decade
later. At the same time the courts were stepping gingerly into the section 35 water and
developing a more sophisticated though cautious jurisprudence of aboriginal rights.
This case-law was, however, wary of broaching the issue of self-government, seeing that
as a political rather than legal question.70 That judicial reluctance could be justified
whilst the section 37 conferencing continued and revived at Charlottetown (1992),
but it lasted long after that failure of political resolution. A landmark case in this period
was Sparrow (1990), establishing the justification test for determining the legality of
administrative and legislative interferences with aboriginal rights.71 Legally speaking,
aboriginal claims thus continued to be pressed during the pre-Charlottetown period at
different, though mutually feeding, levels of the courts and constitutional negotiation.
The section 37 process started a momentum that extended through and beyond the
failures of Meech Lake (1987) and Charlottetown (1992), though not producing any
substantive agreement let alone any clarifying constitutional amendment on the nature
of existing aboriginal rights. The Charlottetown Accord (1992) contained probably
the most specific elaboration in any national constitution of indigenous peoples
aspirations,72 but was spiked by the subsequent negative referendum result. It had
recognized the aboriginal nations as a third order of government, holding a right of
self-government to be realized through a series of specific agreements with each nation.
Paradoxically failure at Charlottetown marked the end of the post-patriation decade of
68
Canada, Department of Indian Affairs and Northern Development, Living Treaties, Lasting
Agreements: Report of the Task Force to Review Comprehensive Claims Policy (Ottawa: DIAND, 1985).
69
Report of the Special Committee, Indian Self-Government in Canada (Ottawa: Canadian Government
Publishing Centre, Supply and Services Canada, 1983). The Penner Committee was a special Parliamentary
committee. In response the federal government tried to establish framework legislation for Indian self-gov-
ernment which was tabled as Bill C52 (An Act Relating to Self-Government for Indian Nations). The Bill
died when Parliament was dissolved. The Bill had revealed a divergence between regional and national abo-
riginal organizations (who had supported it) and bands (who felt it failed to capture their diversity).
70
C Bell and M Asch, Challenging Assumptions: The Impact of Precedent in Aboriginal Rights
Litigation in M Asch (ed), Aboriginal and Treaty Rights in Canada. Essays on Law, Equality and Respect for
71
Difference (Vancouver: UBC Press, 1997) 39, 45. [1990] 1 SCR 1075; 70 DLR (4th) 385.
72
Dalee Sambo, Indigenous Peoples and International Standard-Setting Processes: Are State
Governments Listening? (1993) 3 Transnational Law and Contemporary Problems 13, 36, and see 3245
for an analysis of the Charlottetown Accords treatment of aboriginal rights.
336 Aboriginal Societies and the Common Law

uncertainty over the right of self-government. The following year the Yukon Umbrella
Agreement (1993) was reached, with others following through that decade. These
agreements articulated the right through negotiated structures and jurisdictions. In a
sense the failure of Charlottetown was a delay rather than a dead-end.
The apparent failure of Charlottetown masked a more crucial educative process gen-
erated by the extended period of negotiation and dialogue. As the Provincial leaders
became better versed in the character of aboriginal claims, their knee-jerk hostility
towards aboriginal claims diminished (without ever disappearing). By the 1990s the
Provinces were generally in a more co-operative though still cautious mood towards
their aboriginal peoples. Although there were always moments that showed how frag-
ile that new ground was, it was a thaw impossible without the protracted institutional
engagement of the 1980s. The British Columbia Treaty Commission founded in 1992
by a Province previously notorious for its resistance became an excellent example of a
new willingness to settle aboriginal claims. As ever in politics, that mood blew warm
and chilly in what was overall a more hospitable climate.
As the Charlottetown Accord disintegrated, the Royal Commission on Aboriginal
Peoples (RCAP) was at the beginning of its lengthy deliberations. In 1993 it released a
discussion paper entitled Partners in Confederation, signalling the direction it was headed.
It released a massive report in 1996, which to some extent had already been overtaken by
events. Nonetheless its clear support for aboriginal self-government oiled processes that
by then were well in train. In August 1995 the federal government declared its recogni-
tion of the right to self-government as a constitutional aboriginal right. 73 It announced
its willingness to enter into self-government negotiations and agreements with aboriginal
nations. By the end of the century there were eighty negotiating tables. The government
published its Gathering Strength response (1998) to the RCAP, re-averring commitment
to First Nations self-governance. Indeed, through the 1990s several negotiated models of
self-government had appeared: modern and detailed as well as consensual, these made the
Indian Act look increasingly decrepit. They will be reviewed in a later chapter. Their
appearance demonstrated that self-government had gone from the expression of a rhetor-
ical idealthe language of claims-timeto a principle that was being implemented,
however awkwardly, through specific structures. The Nisgaa Agreement (1999) ended
the century as a presage of what might come in the next. But there was a range of other
settlements beside the high-profile and controversial. Frequently these incorporated a
strong element of Provincial agreement and participation, the British Columbian being
good examples. This showed the change in institutional culture that was maturing during
the period of abortive constitution-talk of the previous decade. It was at this levelthe
inter-governmental onethat the most legal progress towards aboriginal self-government
was made in the last decade of the twentieth century.
However whilst the federal government recognized the inherent right to self-
government, the Supreme Court still declined the invitation to read section 35 in that
manner.74 At the end of the century history was repeating itself inversely: whereas
73
Federal Policy Guide: Aboriginal Self-Government: The Government of Canadas Approach to
Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (Ottawa: Minister of
Public Works and Government Services Canada, 1995).
74
Pamajewon v The Queen [1996] 2 SCR 821; Delgamuukw v The Queen [1997] 3 SCR 1010.
An Overview of the Era of Aboriginal Self-Determination 337

twenty years before, the Canadian courts had made a reluctant government accept the
notion of aboriginal rights, in the late 1990s the government was taking the initiative
whilst the courts remained hesitant, indeed clearly reluctant. Where aboriginal peoples
were concerned the courts were now in a highly cautious rather than pioneering frame
of mind. As if to underline that, in Corbire (1999) the Supreme Court struck down
section 77(1) of the Indian Act which prevented off-reserve band members from vot-
ing in elections.75 In its 1995 statement of policy the federal government had indicated
that all self-government agreements would have to be subject to the Charter of Rights
and Freedoms. The Corbire case sent a rush of anxiety through aboriginal circles that
their practices would be subject to constitutional review. The Nisgaa Agreement,
agreed as Corbire was wending its way through the courts, also reflected aboriginal
sensitivity towards the implantation of Charter-values into their systems of gover-
nance. The federal government passed regulations to ensure off-reserve members could
vote, but the more important outcome of the case was the introduction of Bill C-7 in
June 2002 (The First Nations Governance Act). The Bill immediately became con-
troversial for its attempt to impose a boilerplate over Indian governance. In December
2003 Prime Minister Paul Martin announced he would not revive the legislation, leav-
ing it to lapse on the Order Paper. This showed that if the Indian Act was going to be
dismantled, it would be brick by brick, one group at a time. The day of uniform gov-
ernance regimes had surely gone.

4. Australia
Australia had officially adopted a policy of assimilation in 1951, but in practice the
more insulating regime of protection (and neglect) remained largely in place.76 The
Minister for Territories, Mr Paul Hasluck, had based the policy of assimilation squarely
on the liberal democratic principles of equality of opportunity and non-discrimination.77
The policy was reflected in the welfarist approach of legislation during the 1950s,
particularly for the Commonwealths administration of the Northern Territory. It was
seen in an earlier chapter that this new approach no longer based the protective legal
regimes on racial groundsthis being seen as discriminatorybut on the welfare
requirements of individuals without reference to race.
The application of the principle of non-discrimination became more aggressive dur-
ing the 1960s when the formal Commonwealth and State restrictions that denied
Aborigines any meaningful status as Australian citizens were slowly abandoned.78
These legislative changes coincided roughly with the 1967 referendum, a fact that
probably explains why the referendum is accorded the status of citizenship maker79 for
Aborigines. A Statement of Policy issued by a conference of Commonwealth and state
ministers on Aboriginal welfare (1963) showed how Aboriginal policy- and law-making
were being conceived in the lead-up to the Commonwealths acquisition of constitutional
75 76
Corbire v Canada [1999] 2 SCR 203. Gumbert, Neither Justice Nor Reason, 1920.
77
[W]e want to build a society in which there shall be no minorities or special classes: Mr P Hasluck,
Report on the Native Welfare Conference, 18 October 1951. Text in Stone (ed), Aborigines in White
78
Australia, 193197. Chesterman and Galligan, Citizens Without Rights, 193.
79
Ibid.
338 Aboriginal Societies and the Common Law

jurisdiction after the 1967 referendum. The list of Methods of Advancing the Policy
given in the statement included paragraph ix, [t]he further removal of restrictive and
protective legislation.80
Aboriginal activism began to emerge during the 1960s, including the Lake Tyers
protests in Victoria (1963) and what became the symbolically important Aboriginal
strike at the Wave Hill station in the Northern Territory (1966).81 The year before,
inspired by the civil rights marches in the American South, the first Aboriginal
University graduate, Dr Charles Perkins, led a freedom ride through rural New South
Wales (1965). Another formative event occurred in 1968 when the conservative
Liberal Government decided to transfer land on Gove Peninsula, within the Arnhem
Land Aboriginal Reserve, to large mining companies. This proposal inflamed
Aboriginal peoples. The Yolngu people of Yirrkala had presented two petitions to the
Commonwealth in 1963 seeking ownership rights over Gove Peninsula Land.
Aboriginal protest won widespread popular support. The decision by Justice
Blackburn in Milirrpum v Nabalco Pty (1971) determined against the existence of com-
mon law aboriginal title in the Gove Peninsula, although it was later reversed by Mabo
(1992). Despite that setback, the Gove Peninsula controversy also led to the erection of
an Aboriginal Embassy encampment in front of the federal Parliament in Canberra. It
fostered the establishment of a pan-Aboriginal network.82 In Parliament the Leader of
the Opposition, Gough Whitlam, called upon the Commonwealth to use its new leg-
islative jurisdiction to pursue a policy of equal rights and special privileges, a formula
similar to the Canadian concept of citizens plus. Equality of opportunity was mere
tokenism, he said, when Aboriginal people were so impoverished and lacked real
choice.83 In 1972 the Prime Minister William McMahon announced that the old pol-
icy of assimilation had gone. The governments policy was that Aborigines would have
the equal right to hold effective and respected places within one Australian society
whilst also being encouraged to preserve and develop their own culture. The same year
the Australian Labour Party pledged on the hustings to support Aboriginal land rights
and self-determination. Whitlam became Prime Minister and was given the opportu-
nity to put his words into action.
At this time, and as in other jurisdictions, self-determination was being used in a
broad and inspecific manner. It was synonymous with a notion of community empow-
erment and the shift from total control of Aboriginal life by government to the other
extreme of handing over control to indigenous communities with limited focus on
accountability to government or inside the community itself.84 In a sense self-
determination was being defined by what it rejected rather than what it entailed. That
negative tendency ebbed in the years that followed as the interplay of aboriginal
pressure and governmental practice gave it clearer meaning. Yet it never completely dis-
appeared. The suggestion of separatism was clearly an impossible one at all stages, but

80
Conference of Commonwealth and State Ministers on Aboriginal Welfare, Darwin 11 and 12 July
1963, Statement of Policy, text in S Stone (ed), Aborigines in White Australia, 201202.
81
See Richard Broome, Aboriginal Australians: Black Responses to White Dominance 17881994 (Sydney:
82
Allen and Unwin, 1994) 177. Ibid 176.
83
EG Whitlam, Debate in the House of Representatives (Cth) 13 August 1968, text in S Stone (ed),
84
Aborigines in White Australia, 211, 213214. HREOC, Social Justice Report 2002, 10.
An Overview of the Era of Aboriginal Self-Determination 339

particularly in the post-recognition climate of the 1990s when the Howard


Government disowned self-determination.
Meanwhile, newly committed to the policy of self-determination, the just-elected
Whitlam Government established the Department of Aboriginal Affairs as well as a
National Aboriginal Consultative Committee (NACC). For the first time structures for
Aboriginal representation at the national and regional level were being put in place. The
Fraser Government conducted a review of the NACC (1976), which it replaced with the
National Aboriginal Conference (NAC). Like the NACC it included elected represen-
tatives, but unlike the short-lived body it replaced, it quickly became a high-profile
advocate of Aboriginal rights. By the mid-1980s with the Hawke Government in power,
the NAC was becoming seen as frequently remote from its constituent communities.85
This introduced what would become an ongoing tension in Aboriginal culture about
the desirable forms of national representation, a pull between centralized and regional-
ized approaches. The NACC and NAC had been advisory bodies only and were criti-
cized for not giving Aboriginal people significant decision-making power. In 1987 the
Hawke Government announced its intention to establish the Aboriginal and Torres
Strait Islanders Commission (ATSIC), the legislation finally being passed in 1989.
During the 1970s and 80s, debate about Aboriginal policy was being conducted
mostly at the level of social justice.86 This was a more culturally-sensitive reworking of
the earlier welfarism; however it was based ultimately upon perception of Aborigines
as holding minority rights. It was not based upon any conception of aboriginality. In
that period the Commonwealth and, less obligingly, the States passed legislation out-
lawing racial discrimination. The Commonwealth took the lead with the Racial
Discrimination Act 1975 (Cth), the passage of which had been largely motivated by
support for Aborigines.87 Highly significant though this legislation was, it continued
the depiction of Aborigines rights as based upon principles of non-discrimination
rather than aboriginality. That principle became established in Australian law only at
the beginning of the 1990s through claims to common-law aboriginal title.
From 1966 State governments had passed legislation giving Aborigines statutory
land rights. Founded upon an emergent acceptance of a principle of Aboriginal self-
management,88 this legislation mainly concerned land formerly Aboriginal reserves.
This legislation established land management regimes based on the trust or an adapted
version, known as the land council. Also the legislation failed to recognize Aboriginal
rights as co-existing with other tenures, notably pastoral leases, and its already-limited
scope did not extend beyond vacant Crown land.89 As a result, Aborigines resorted to
the courts. The Milirrpum judgment (1971) was a setback. This case was heard and
decided in parallel to the Calder case in Canada, the adverse Australian result high-
lighting the delicate tipping of the balance in the Supreme Court of Canada. However,
85
Tim Rowse, Obliged to be Difficult: Nugget Coombs Legacy in Indigenous Affairs (Cambridge:
Cambridge University Press, 2000) 107.
86
See C Fletcher, Living Together but not Neighbours in P Havemann (ed), Indigenous peoples rights in
Australia, Canada and New Zealand (Auckland: Oxford University Press, 1999) 341347.
87
Chesterman and Galligan, Citizens Without Rights, 195199.
88
C Fletcher, Living Together but not Neighbours, 342.
89
For an overview of this legislation see Bradley Selway QC , The Role of Policy in the Development of
Native Title (2000) 28 Federal L Rev 409414.
340 Aboriginal Societies and the Common Law

Prime Minister Whitlam commissioned Justice Woodward, whose second Report


(1974) resulted in the passage of the Aboriginal Land Rights (Northern Territory) Act
1976 (Cth). Rather than adopting a national law that might have been challenged in
court by the States, Prime Minister Whitlam saw this as template legislation for the
Commonwealth-controlled Northern Territory. The expectation was that the
Northern Territory model would eventually be extended to the other States.
One of the most important immediate consequences of this Act was the granting of
freehold title to the Aboriginal owners of over 285,000 square kilometres of land that
had been reserves.90 By the end of the century the statutory land claim process had
resulted in forty-two per cent of Territory land being in Aboriginal control. The Act
converted former Aboriginal reserves to Aboriginal land and enabled Aboriginal
people to make claims to unalienated Crown land based upon their traditional relation-
ship. The land was to be vested in Aboriginal trusts for the benefit of all traditional
owners under an inalienable freehold title. The Act also established Land Councils
with elected Aboriginal representatives. By the end of the century there were four of
these, the Northern Land Council (NLC), the Central Land Council (CLC), the
Tiwi Land Council, and the Anindilyakawa Land Council. These Councils were estab-
lished to determine policy and assist Aboriginal people in claiming and managing their
land, in protecting sacred sites, and in the management of income received under the
1976 Act.
Whilst the Northern Territory model was taking shape a negotiated land settlement
was reached with the Pitjantjatjara people of north-west South Australia. Although
Whitlam lost office whilst the legislation was being passed, the new Liberal
Government eventually passed settlement legislation (1981) vesting title to a large tract
of land in the Aboriginal owners and establishing a Council to govern the land on an
enhanced-municipality model.
The Northern Territory model remained the template for the next Labour
Government of Prime Minister Bob Hawke, who came to office in 1983 proposing
national land rights legislation. A preferred policy was eventually produced (1985)
but it met with stern resistance from Aboriginal leaders, Labour party members and
States (especially Labour-governed Western Australia). In the event the policy was
dropped the next year, a failure of governance91 that precipitated dramatic judicial
intervention.
The famous Mabo case (1992)92 reversed Milirrpum. The High Court of Australia
rejected the fiction of terra nullius and recognized the common law aboriginal title of
the Meriam Islanders and, by unmistakable implication, the continental Aborigines.
The court based the common law title upon inter alia the continuity of Aboriginal cus-
tomary lawat least as regards their property rightsupon the Crowns assumption of
territorial sovereignty. Therefore the court accepted the continued viability of Aboriginal
political forms in this sphere, recognition, if limited, of their power of self-government.93
The Mabo result was unexpected (at least in Australia; other common law jurisdictions
90 91
Broome, Aboriginal Australians, 189190. Selway, Role of Policy, 414.
92
Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1.
93
More fully see Jeremy Webber, Native Title as Self-Government (1999) 22 University of New South
Wales LJ 600.
An Overview of the Era of Aboriginal Self-Determination 341

were less startled as surprised by its tardiness). The judgments left many points unclear
and suggested that Crown grants made after the passage of the Racial Discrimination
Act 1975 (Cth) might be void where inconsistent with native title.
The public and professional response to the Mabo case was far from warm and
meant that legislation to trim its potential was inevitable despite Aboriginal objection.
The Native Title Act 1993 was the outcome.94 However the Act did not deal with the
co-existence of native title and pastoral leases. This pressing issue was considered by the
High Court in the Wik (1996) case95 when the two were recognized as co-existing at
law (as well as in fact). Essentially though not explicitly, this judgment was instructing
governments (Commonwealth and State), Aboriginal and affected parties to negotiate
a modus vivendi. Despite being passed against Aboriginal objection, the 1993 Act had
contemplated a process of negotiation over land subject to a native title claim. The Act
set out the statutory right to negotiate, which by the mid-1990s had excited consid-
erable controversy as well as receiving much legal attention. As it was, the Howard
Government showed its impatience with the process of negotiation (which was cloud-
ing large areas of land as well as being complicated by extensive cross-claiming). If
negotiated co-existence was the coded message of Wik it was one the Howard
Government refused to countenance. It took matters in its own hands and passed an
amendment (1998) that pruned heavily the scope of native title, spurning the pro-
nouncement by the United Nations Committee on the Elimination of Racial
Discrimination (March 1999) that the measure breached international law.96 At the
end of the century, then, native title issues were being litigated within the parameters
of the statutory framework.
Meanwhile the policy of Aboriginal self-determination had become the language of
official policy-making by the 1970s, although at that time it was seen as a form of minor-
ity right to cultural integrity.97 Having acquired legislative competence in 1967, the
Commonwealth established an Office of Aboriginal Affairs in the Prime Ministers
Office. This became the Department of Aboriginal Affairs in 1972, but like the same
bureaucracies in North America and New Zealand it became identified with state
paternalism. The Fraser Government had resiled slightly from the notion of self-
determination, preferring self-management, but the essential continuity in institutional
development and legislation (like the Northern Territory land rights scheme) indicated
the gesture was mostly symbolic.98 As part of that momentum, the Aboriginal Councils
and Associations Act 1976 (Cth) established a model of municipal self-government with
by-law-making powers as well as Aboriginal Corporations. This was a significant pro-
gression from the ownership-based model of land councils. It put self-management
into wider, more engaged contexts that edged more perceptibly towards Aboriginal
94
More fully R Bartlett, Political and Legislative Responses to Mabo (1993) 23 University of Western
Australia L Rev 352. There is a judicial consideration of the scope of the 1993 Act before its amendment in
1998 in Western Australia v Commonwealth (1995) 183 CLR 373, 453459.
95
Wik v Queensland (1996) 187 CLR 1.
96
See Gillian Triggs, Australias indigenous peoples and international law: validity of the Native Title
Amendment Act 1998 (Cth) (1999) 23 Melbourne University L Rev 372.
97
Fletcher, Living Together but not Neighbours, 342.
98
W Sanders, Towards an Indigenous order of Australian Government: Rethinking self-determination as
Indigenous affairs policy (Canberra: Centre for Aboriginal Economic Policy Research Paper no 230, 2002) 2.
342 Aboriginal Societies and the Common Law

self-determination than Prime Minister Frasers rhetoric admitted. However the


question of regional and national representation remained in an extra-legal zone
incompletely filled by the Commonwealth-sponsored NAC. Besides that, during the
1980s all jurisdictions were moving towards the devolved provision of public services
to aboriginal peoples managed by their own structures and agencies. The Report of the
Royal Commission into Aboriginal Deaths in Custody (1991) described self-
determination as an evolving concept that encompassed a wide range of ideas. Self-
determination was distinguished from self-management and required Aboriginal
involvement at all levels in the decision-making processes, including policy design as well
as service delivery.99 The Council of Australian Governments endorsed that principle the
next year (1992) in calling for greater Aboriginal involvement in those areas.100
The Aboriginal and Torres Strait Islanders Commission [ATSIC] Act 1989 was the
product of the most extensive consultations ever taken on a single piece of legislation
in Australian history (said the then Minister for Aboriginal Affairs101). It was also the
second most amended Bill to have passed through the Commonwealth Parliament
since Federation. It established a Commission and regional councils to address the gaps
in Aboriginal representation apparent from the workings and limited remit of the
NAC. Rather than being a governmental body that worked through existing
Aboriginal clan-based structures (the North American and New Zealand approach),
ATSIC was a completely new structure of representation and co-ordination. It was
founded upon dual and essentially western principles of legitimacythrough the bal-
lot box (its Aboriginal constituency) and Parliament (responsibility through a Minister
for the expenditure of public funds). This duality proved a structural polarity that
quickly blew ATSIC into stormy sea. It was set up as an elective body (seventeen com-
missioners with two government appointees), with regional councillors and zonal
commissioners designed to give effective local, regional, and national representation of
Aboriginal interests. Touted as a bold innovation in public administration, ATSIC
became something of a lightning rod in the next decade, attracting all manner of
electrical storms. The stresses this structure of representation, policy-formation, and
service delivery encountered will be discussed more fully later. Early in 2004 the federal
government announced that it intended to abolish ATSIC, which the Minister
pilloried as a Labour Government innovation that perpetuated apartheid.102
ATSIC was and remains (though not for much longer) an attempt to establish a
structure for the formation of policy and provision of services to Aboriginal people
99
E Johnson QC, Royal Commission Into Aboriginal Deaths in Custody, National Report (1991) at
503504. The Commission conceded the variety of opinions within Aboriginal communities about the
scope of self-determination but said there was a core belief in Aboriginal control of decision-making and
choice.
100
Council of Australian Governments, National Commitment to improved outcomes in the delivery of progams
and services for Aboriginal peoples and Torres Strait Islanders (Perth: COAG, 1992) para 4.1 spoke of service deliv-
ery by all levels of government to encourage empowerment, self-determination and self-management by
Aboriginal peoples and Torres Strait Islanders.
101
The Hon GL Hand, Minister for Aboriginal Affairs, Speech on the Aboriginal and Torres Strait
Islander Commission Bill 1989, Second Reading, House of Representatives (Australia), Hansard, 4 May
1989, 1994.
102
Alison Anderson, ATSIC abolished to silence Indigenous voice, The World TodayFriday 16 April
2004, interviewing Minister for Indigenous Affairs Amanda Vanstone.
An Overview of the Era of Aboriginal Self-Determination 343

anchored in their consent. It was deliberately set between the Government and
Aboriginal people as a mechanism of legitimacy. However the unique structure that
was chosen disclosed and implicitly acknowledged two fundamental features of Crown
sovereignty in Australia. These were, first, the absence of any formal Aboriginal consent
to Crown sovereignty by way of treaty, which related, secondly, to the absence of a his-
tory of sustained political relations typical of the other jurisdictions. In 1979 the NAC
called for a treaty (makarrata) to be made with the countrys indigenous peoples, a call
that it repeated on several occasions and which ATSIC also took up. This led to the for-
mation of an Aboriginal Treaty Committee but the call, whilst attracting considerable
publicity, did not produce any constitutional change. The proposal resurfaced in the
late 1980s but a Commonwealth-appointed Commission recommended against it.
The proposal however had pitched Aboriginal policy to the constitutional level, that in
itself indicating a new, more receptive mindset. The late 1980s and early 1990s (also
the time when ATSIC and Mabo were born) represented a period of unusual con-
sciousness of the Aborigines as a missing component in the countrys constitutional
arrangements. In May 1991 the Report of the Royal Commission into Aboriginal
Deaths in Custody supported the concept of a process of reconciliation. The next
month, in June, the Labour Government passed the Council for Aboriginal
Reconciliation Act with a twenty-five member council (CAR) to work towards recon-
ciliation by the centenary of Australian federation.103 As it was, native title and the
Stolen Generations controversy (1997) attracted the most legal attention through that
decade, although ATSIC and CAR continued to canvass and press for constitutional
recognition. Indeed, native title generated a considerable amount of litigation and rep-
resented the area of most extensive juridification during this period. By the late 1990s
Indigenous Land Use Agreements (ILUAs) were becoming a regular feature and
signalled the arrival of Australia into a post-recognition environment.
In 1996 the highly conservative Government of Prime Minister John Howard was
elected to office after a campaign that had pilloried the Aboriginal claims industry.
He kept Aboriginal affairs within his own portfolio and sought to put them back on
the old axis of welfarism (social, education, and welfare programmes)what he
called practical reconciliationand away from a rights agenda. Backtracking from
the policy followed since the early 1970s, he stated publicly that he preferred the
term self-management to self-determination.104 The Human Rights and Equal
Opportunities Commission (HREOC) had been established in 1986 with a partic-
ular brief over Aboriginal affairs. In 1993 the Office of Aboriginal and Torres Strait
Islander Social Justice Commissioner was created inside HREOC. Social justiceas
the title indicatedand native title were made special areas for attention and report-
ing back. Prime Minister Howard sought to make the former the main focus of
103
The Council for Aboriginal Reconciliation was established as a statutory authority on 2 September
1991 when the Council for Aboriginal Reconciliation Act 1991 received the Royal Assent. Its first members
were appointed on 15 December 1991. Like other appointees over the Councils life, they were prominent
Australians drawn from Aboriginal, Torres Strait Islander, and wider communities, bringing a comprehen-
sive range of views and approaches to the Councils deliberations. The life of the Council was not extended
at the end of its ten-year term in December 2000.
104
Mick Dodson and Sarah Pritchard, Recent Developments in Indigenous Policy: The Abandonment
of Self-Determination (1998) 4(15) Indigenous Law Bulletin.
344 Aboriginal Societies and the Common Law

official attention, although the Commissioner refused to buckle under to the new
orientation of Commonwealth policy and became a thorn in the side of the Howard
regime. To the governments obvious displeasure there followed a succession of
reports by the Commissioner criticizing Australias failure to meet its international
legal obligations.
The Howard Governments defiant amendment of the native title legislation
(1998) in response to the Wik judgment was a strong sign of its more ruthless
approach to Aboriginal relations. These proposals received unprecedented attention
from the United Nations and put the countrys relations with the international organ-
ization into a state of crisis. The international criticism the Canadian government
attracted (1999) for its slow response to the RCAP was nothing to the opprobrium
heaped on the Australian in the same year for its lightning reaction to Wik.105
Internationally the Australian government scoffed at the politics of symbolism in
relations with Aboriginal peoples and in true Ocker fashion congratulated itself on
practical measures leading to practical results.106 It renounced the policy of self-
determination as encouraging separatism, further dimming Australias international
reputation.
When proposals for constitutional accommodation of Aboriginal people emerged
from the national Constitutional Convention (1998) it was in the form of a preamble
to the Constitution.107 Prime Minister Howard put his revised version of a draft pre-
amble to referendum on 6 November 1999. It recited the commitment of the
Australian people to the Constitution, while, among other things, honouring
Aborigines and Torres Strait Islanders, the nations first people, for their deep kinship
with their lands and for their ancient and continuing cultures which enrich the life of
our country. That gesture of recognition was disingenuously qualified by another
clause that sought to make the preamble non-justiciable. As it happened, the referen-
dum (for other reasons) did not endorse the proposal. However the plentiful native
title litigation in that decade and Howards controversial attempts to prune its reach
showed the futility of his goal of returning to the old terms of engagement. Aboriginal
affairs could not be treated as simply a matter of welfarism.
The Final Report of the CAR, which had long pushed for the constitutional accom-
modation the Prime Minister resisted, included a draft Reconciliation Bill (2001) to
establish processes to identify, monitor, negotiate and resolve unresolved issues for rec-
onciliation. Senator Ridgeway introduced a Bill that year but it was not debated for
another two and a half years, and then only for a short, truncated period. Even so, the
Government made it plain that it was interested only in practical reconciliation and
not symbolic gestures. Its vision of reconciliation was framed entirely in terms of

105
In April 1999 the United Nations Human Rights Committee criticized Canada for its slow response
to the RCAP. The Canadian Human Rights Commission echoed that later the same year but its attack on the
federal government was vastly less vehement than the Australian counterpart.
106
J Herron, Statement on behalf of the Australian Government at the 17th session of the United Nations
Working Group on Indigenous Populations, Minister for Aboriginal and Torres Strait Islander Affairs,
Canberra, 29 July 1999, 7.
107
Constitutional Convention, Communiqu, 13 February 1998, suggesting acknowledgment of the
original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders.
An Overview of the Era of Aboriginal Self-Determination 345

equality and non-discrimination rather than any recognition of the inherent authority
of Aboriginal polities (such as that made in the other jurisdictions). Senator Ferris said:
Of course, the concept of reconciliation is one that means different things to different people . . .
But there is one common thread to peoples view of reconciliation in this country and that is that
all Australians are entitled to equal life chances, to equality of opportunity, and that true recon-
ciliation will not exist until Indigenous disadvantage has been eliminated. . . . The federal gov-
ernment believes that the best way it can act to achieve reconciliation is through the provision of
practical and effective measures that address the legacy of profound economic and social disad-
vantage that are experienced by many Indigenous Australians, particularly in those crucial areas
of health, education, housing and employment. Practical measures in these key areas have a
positive effect on the everyday lives of Indigenous Australians.108
Once the Olympic Games were over and international attention had passed, the Prime
Minister dropped Aboriginal affairs from his portfolio. This step confirmed the cyni-
cal impression that his assumption of the helm had been to steer his Government (and
sport-obsessed electorate) into clear water rather than make substantive progress.
Yet the Australian picture at the end of the 1990s was not as negative as that might sug-
gest, although the position of Aboriginal peoples had not improved and in some areas had
regressed.109 The late 1990s saw the emergence in Australia of concepts that had taken
root in other jurisdictions to revive indigenous structures of authority, such as partner-
ship and capacity building. Led by the Commonwealth, the Council of Australian
Governments (COAG) issued a communiqu in November 2000 in which it agreed to
take a leading role in driving change to address Indigenous disadvantage. Three priority
areas were identified110 and in 2002 COAG initiated whole of government community
trials111 with an independent annual reporting framework on key indicators of
Aboriginal disadvantage. These COAG schemes were concerned largely with service
delivery. Yet it was sign of an increasingly more frequent phenomenon in which govern-
ments entered into agreements with Aboriginal communities and organizations.112
Indigenous Land Use Agreements under the native title legislation were also becoming
more regular by the early new century. To use the term of the Howard Government, this
emergent pattern of agreement-making indicated practical acceptance and movement
towards facilitation of Aboriginal enterprise. However, that trend should be set beside the
abolition of ATSIC as an apartheid body (2004) and the general hostility of the Howard
Government to Aboriginal self-determination and land rights. This meant that
Aboriginal communities were dealt with on an issues-led basis that failed to address their

108
Senator Ferris, HansardSenate, 27 November 2003, 1799017991. See also: Department of
Immigration, Multiculturalism and Indigenous Affairs, Fact Sheet No 3Reconciliation, online at
www.minister.immi.gov.au/atsia/facts/index.htm, accessed 20 January 2004.
109
See the statistics in HREOC, Social Justice Report 2003 (Sydney: HREOC, 2003) ch 2.
110
These were community leadership; reviewing and re-engineering programs and services to support
families, children, and young people; and forging links between the business sector and indigenous com-
munities to promote economic independence.
111
Eight communities were chosen as pilot schemes. They were Murdi Paaki region (New South Wales);
Wadeye (Northern Territory); Shepparton (Victoria); Cape York (Queensland); Anangu Pitjantjatjara Lands
(South Australia); Northern Tasmania; East Kimberley region (Western Australia); and the Australian
Capital Territory.
112
HREOC, Social Justice Report 2002 (Sydney: HREOC, 2002), appendix sets out these agreements.
346 Aboriginal Societies and the Common Law

overall constitutional and legal position in the manner that American and Canadian law
had done. That, of course, was exactly the containing outcome wanted by the Howard
Government, for it prevented the Aboriginal nations from claiming inherent authority
and law-making capacity within the Australian constitutional system apart from that
specifically recognized. That capacity, it will be seen in the following chapters, was con-
ferred niggardly by legislation and largely limited to municipal-like authority and ordi-
nary contractual powers. In Australia the inherency position still had no legal purchase at
the beginning of the twenty-first century for all the talk of reconciliation, whereas the
other jurisdictions accepted and acted on it.

5. New Zealand113
By the beginning of the twentieth century the individualization of customary land had
poured Maori land-ownership into a mould where the imposed legalism of the tenancy
in common mixed with tikanga (custom). As so often in Maori culture, the imposed
legalism was incorporated and subordinated to the customary practices. As a result
massive fragmentation affected Maori freehold land titles. The state of Maori freehold
title underlined how iwi and hapu operated by force of highly dynamic customary
practices outside the compass of any totalizing legal regime. The proprietary regime of
the tenancy in common was never as all-encompassing as that surrounding the
American tribe under the IRA, the band of Canadas Indian Act (itself a fragment of the
larger tribal nation), or the smothering Australian Aboriginal protection laws.
Individualization had aimed to dissolve those tribal structures. Whilst it undoubtedly
had a weakening effect, those structures remained rooted in Maori not Pakeha legalism
and so they remained viable, absorbing the new legal form of ownership into their cus-
tomary practices. At the beginning of the century James Carroll had obtained consid-
erable Maori support for the Maori Councils Act 1900, but this limited system of
district regulation had been left behind by post-war urbanization taking most Maori
away from their traditional region. Importantly neither iwi nor hapu had been
bounded by a legal regime as of the North American manner so that the legal forms
(mostly of land-ownership) played inside a dynamic customary framework brokered
through a new institution, the Native (later Maori) Land Court.
At the beginning of the twentieth century, the fragmented tenancy-in-common was the
central land-based legal vehicle for Maori collective action. During this century Maori
incorporations and Trust Boards were also established for the management of assets. Maori
incorporations, like the fragmented tenancy-in-common of Maori freehold land, were
under the statutory jurisdiction of the Maori Land Court. The principal legislation for
Maori affairs was consolidated in 1953, long before any notion of aboriginal self-
determination held sway. It was not replaced until 1993, by which time it certainly did.
Trust Boards were set up individually by special statute mostly in the inter-war
period. They were founded on an iwi basis mainly to administer insubstantial sums
awarded to Maori ostensibly in settlement of claims. These Trust Boards were all put

113
See fully A Sharp, The Maori Demand Justice 19661988 (ch 1) and Inequalities and Government
Policies, 19601988 (ch 10) in Justice and the Maori.
An Overview of the Era of Aboriginal Self-Determination 347

under a uniform code in 1955 which maintained, indeed in some respects increased,
their subjection to Ministerial supervision. Although several Trust Boards assumed
powerful leadership roles in their iwi, they never became the encompassing mechanism
for the conduct of tribal life in the manner of the North American legal regimes. They
existed within or alongside (rather than supplanted) the customary structures of polit-
ical authority. The laws of Maori freehold land (fragmented title, trusts, and incorpo-
rations) and Maori Trust Boards remained the basic legal machinery for Maori
collective activity throughout the twentieth century. To repeat, those legal forms were
encompassed within a dynamic customary framework, a location that explained much
of their individual histories. For the most part, Pakeha legalism was a trellis, shaping
but not confining Maori political practice.
The Hunn Report of 1960, an official policy audit of the Department of Maori
Affairs in character not unlike Canadas Hawthorn Report, had assumed that Maori
would ultimately be assimilated into the white population. Hunn had spoken of inte-
gration as distinct from assimilation, implicitly contemplating a time when Pakeha
and Maori identities would fuse (assimilation) but meanwhile enjoying equal citizen-
ship inside distinct cultural practices (integration). Somewhat misunderstood and not
helped by his own confusing and, at times, confused terminology,114 the document was
criticized in many Maori quarters115 as assimilationist propaganda.116 Still, its very
confusion was symptomatic of government policy of the time, demonstrating the
rather vague belief that some merging process was at work and that Maori-ness was des-
tined, if not to disappear, at least to dilute.
The Maori Welfare Act 1962 was in part an outcome of the Hunn Report. It super-
seded the limping 1945 legislation. The National Government proposed a structure of
national and regional Maori representation through a system of district councils
topped by a national one. These councils would overlay the reconstituted local and
executive tribal committees of the 1945 system. These districts cut across the tradi-
tional rohe (tribal zones), but gave the highly dynamic Maori politics a new forum and,
importantly, a formal network of representation that encouraged a more national form
of information-sharing and political positioning. The New Zealand Maori Council
was thus born. Its representative function became particularly important in the mid-
1980s when the tidal wave of recognition washed through the New Zealand legal sys-
tem. The Maori Council led the litigation that fundamentally changed the terms of
governmental engagement with Maori. Again, the 1962 statute established legal forms
that fitted inside rather than apart from the natural, highly fluid customary processes
of Maori politics. In part the Council had been born from the conservative National
Governments impatience with the Ratana-Labour mortgage on the Maori seats in
Parliament. However, as was stressed at the time to an Opposition that was mostly
supporting the measure, this form of representation was intended to operate in the
extra-Parliamentary sphere.117
114 115
Sharp, Justice and the Maori, 188189. Metge, Maoris of New Zealand, 314316.
116
Maaka, Perceptions, Conceptions and Realities, above, 127138 points out that Maori response was
not wholly negative, but varied. Many supported at least some of the Reports recommendations, including
the Maori Synod of the Presbyterian Church Synod, held in Whakatane, 1961.
117
(1962) 322 New Zealand Parliamentary Debates at 29382949.
348 Aboriginal Societies and the Common Law

Meanwhile Maori resorted to the courts during the 1950s and 60s to vindicate their
rights, but their fortune was even less than that of the Canadian First Nations then also
following a similar trail. Maori had consistently claimed customary ownership of lakes,
the foreshore, and tidal land. The Maori claim to the Wanganui River formally
commenced in 1938 when an application was filed in the Maori Land Court to have
the customary title to the riverbed investigated so that a freehold order could issue. The
case reached the Court of Appeal twice, both times unsuccessfully. The court (1955
and 1962118) maintained the judiciarys long-standing hands-off approach to Maori
issues. Failure there did not deter a similar claim to the foreshore of the Ninety Mile
Beach, which, again, the court rejected (1963).119
Frustrated by the courts and becoming more organized nationally (in part a result of
the 1962 structure), Maori protest took more public and vocal form later in the 1960s.
The Prichard-Waetford Committee Report of 1966 recommended the removal of
some important statutory protections of Maori freehold land, ostensibly under a pol-
icy of equality of treatment. These recommendations were incorporated into the con-
troversial Maori Affairs Amendment Act 1967. This Act was passed by the conservative
National Party Government, which had taken up the Committees theme of removing
special protective legislation. In the debates on the Bill, the sponsoring Minister, John
Hanan, identified the goal of assimilation behind the legislation. It was, he said, the
most far-reaching and progressive reform of the Maori land laws this century . . . based
upon the proposition that the Maori is the equal of the European . . . This Bill removes
many of the barriers dividing our two people.120
The 1967 legislation sparked protest and encouraged the emergence of new activist
groups (such as the radical Maori youth group Nga Tamatoa), as well as generating
more effective pan-Maori networks. In 1974 the third Labour Government passed leg-
islation undoing some of the more drastic measures of the 1967 statute. A Maori politi-
cian, Matiu Rata, the Minister for Maori Affairs, sponsored this legislation, which
endorsed the principle of retaining Maori land in Maori ownership. However, it could
not stop the momentum of protest. In 1975 a famous Land March walked from Te
Hapua at the extreme north of the North Island to Wellington, the capital city at the
extreme south. This dramatic mass gesture was modelled on the Trail of Broken
Treaties which had marched on Washington DC in 1972. Maori spoke now of the
importance of practising te taha Maori (the particular traits and ways of being Maori).
Further high-profile claims and confrontations during the mid-1970s, at Bastion Point
and the Raglan Golf Club in particular, gave Maori protest continued momentum.121
The call for Maori self-determination made by the Land March protesters was a
policy which the third Labour Government had already endorsed in legislation the year
before and which was by then official government policy. It was based upon the
recognition of te tino rangatiratanga (the authority of Maori chiefs over their own

118
In re the Bed of the Wanganui River [1955] NZLR 419 and [1962] NZLR 600 (CA).
119
In re the Ninety Mile Beach [1963] NZLR 461 (CA). See Richard Boast, In re the Ninety Mile Beach
revisited: The Native Land Court and the Foreshore in New Zealand Legal History (1993) 23 Victoria
120
University of Wellington L Rev 145. (1967) 353 New Zealand Parliamentary Debates 3657.
121
For postcards from this period, columns written in the New Zealand Listener by a Maori activist and
intellectual, see Ranginui Walker, Nga Tau Tohetohe: Years of Anger (Auckland: Penguin Books, 1989).
An Overview of the Era of Aboriginal Self-Determination 349

people) in the Maori version of the Treaty of Waitangi. The Waitangi Tribunal was
established in 1975 to hear Maori claims against contemporary governmental
conduct,122 its jurisdiction being extended in 1985 to include historical claims.123 After
a hesitant start124 the Tribunal went on in the mid-1980s to deliver a set of influential
reports. The favourable national attention they won was a result of the careful and meas-
ured tone taken by Chief Judge Durie, the Chairman. The pre-1985 Tribunal was
clearly hampered by its non-retrospective jurisdiction as many contemporary issues
like the installation of sewage outfalls into sacred watershad deep-seated historical
roots. Once the Tribunal obtained historical claims jurisdiction in 1985, the number of
lodged claims surged considerably. The Tribunal later produced a multi-volume Report
(1991) on the first claim under its enlarged jurisdiction, the huge South Island claim of
Ngai Tahu. This Report laid the foundation for eventual settlement (1995).
At this time when the Tribunals jurisdiction had recently been extended, the Royal
Commission on Electoral Reform (1986) recommended that the New Zealand politi-
cal system address the constitutional position of Maori under the Treaty.125 The
Commission was echoing the proposal of the new (fourth) Labour Government in a
White Paper (1985) for the Treaty to be made part of the supreme law of the country.
In calling for constitutional reform, the Minister of Justice, Geoffrey Palmer, was
openly influenced by the recent Canadian example.126 However, the statute that even-
tuated in 1990 fell short of an overriding constitutional instrument of the North
American variety and omitted provision for the Treaty, Maori feeling (misguidedly)
that statutory acknowldgment would diminish its mana.
Meanwhile, as the Tribunal was on the threshold of its enlarged jurisdiction, its early
1980s reports (under its original jurisdiction) had begun evolving a set of Treaty prin-
ciples for the conditions of modern New Zealand. Soon after the Court of Appeal
endorsed those principles and added its own spin in the Maori Council series of cases
(198790).127 Parliamentary reference to principles rather than terms of the Treaty,
the court explained, was to be:
. . . understood in the light of the fundamental concepts underlying them. [This] calls for an
assessment of the relationship the parties hoped to create by and reflect in that Document, and
an enquiry into the benefits and obligations involved in applying its language in todays changed
conditions and expectations in light of that relationship.128
The court indicated that the Treaty was founded upon the Crowns protection of
rangatiratanga in exchange for the acquisition of sovereignty over their territory. The
Treaty created a partnership that required both parties to act reasonably and in good
faith. The Crown had the freedom to govern and the Treaty did not authorize
122
The Treaty of Waitangi Act 1975, no 114, section 4.
123
Treaty of Waitangi Amendment Act 1985, no 148, section 3.
124
JD Sutton, The Treaty of Waitangi Today (1981) Victoria University of Wellington L Rev 17, 3439.
125
Report of the Royal Commission on the Electoral SystemTowards a Better Democracy (Wellington:
Government Printer, 1986) 108113.
126
The Hon Geoffrey Palmer, A Bill of Rights for New ZealandA White Paper (Wellington: Government
Printer, 1985) 3539.
127
New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA); Tainui Maori Trust Board
v Attorney-General [1989] 2 NZLR 513 (CA); Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2
128
NZLR 641. [1987] 1 NZLR 641, 702 per Casey J.
350 Aboriginal Societies and the Common Law

unreasonable restrictions on the right of a duly elected Government to follow its


chosen policy.129 Maori also owed a duty of reasonable co-operation, since the obliga-
tions under the Treaty were not one-sided.130 However as sovereign the Crown
assumed a duty of active protection and the obligation to remedy past breaches. The
court rejected an open-ended duty to consult.131 Good faith did not require it,
although it was an obvious way of demonstrating its existence.132
The Maori Council cases had been prompted by the proposed creation of state-
owned enterprises as a prelude to the eventual privatization of Crown assets. Maori
expressed considerable anxiety that the divestment of Crown assets would compromise
the availability of resources for settlement of claims that the Waitangi Tribunal was
about to consider under its recently extended jurisdiction. At the last moment, after
intervention by the Waitangi Tribunal, section 9 was inserted into the enabling legisla-
tion, the State Enterprises Act 1986. This section subjected the state enterprises regime
to the principles of the Treaty of Waitangi. The government was surprised when the
Court of Appeal interpreted section 9 as requiring the Crown to negotiate an accom-
modation with Maori before corporatization could proceed. A series of judgments
showed the court would not condone Crown measures that read down or sidestepped
the reach of section 9. The result was unprecedented. Provision for Maori claims had
to be agreed and incorporated into the administration of a statute designed to imple-
ment flagship economic policy. In the several judgments the Court of Appeal spoke of
the Treaty as a founding document and its principles as subject to ongoing interpreta-
tion in the light of modern circumstances. Those principles were further endorsed in
the April Report of the Royal Commission on Social Policy (1988).133
Faced with this new wave of Treaty-based legalism, the fourth Labour Government
announced the Principles for Crown Action (1989) that henceforth would govern its
relations with Maori, especially in what had quickly become the dominating topic of
claims. These included the rangatiratanga (article 2) principle, which included the
restoration of iwi self-management. There was also the kawanatanga (article 3) prin-
ciple, which was described as the Crowns sovereignty . . . qualified by the promise to
accord the Maori interests . . . an appropriate priority. Other principles included the
principles of equality before the law, co-operation and redress. The government
described the direction of the claims process. So long as the Crown demonstrates com-
mitment to this process of redress then it will expect reconciliation to result.134
At the same time the government was looking at service delivery of social welfare and
other programmes for Maori. The devolution of these services to tribal and other
groups became government policy, which called for the direct inclusion of Maori in the
design and delivery of programmes and services.135 The State Sector Act 1988 required
129 130
[1987] 1 NZLR 641, 663 per Cooke P. Ibid per Cooke P, 664.
131
The alleged duty to consult was not argued in terms of a constitutional convention requiring consul-
tation with, and the consent of, Maori to Maori affairs legislation. In the context of the litigation a broader,
132
more open duty was being alleged. Ibid 683 per Richardson J.
133
The April Report: Report of the Royal Commission on Social Policy (4 vols, Wellington: Royal
Commission on Social Policy 1988), II, 2588.
134
Sir Geoffrey Palmer, The Treaty of Waitangi: Principles for Crown Action (1989) 19 Victoria of
Wellington L Rev 335.
135
Minister of Maori Affairs, Te Urupare Rangapu/Partnership Response (1988).
An Overview of the Era of Aboriginal Self-Determination 351

CEOs to recognize the aims and aspirations of Maori and the need for their greater
involvement in the public sector. The Partnership Perspectives (1988) echoed the fresh
language of the Court of Appeal, the Minister of Maori Affairs noting that mainstream
governmental institutions had no familiarity or relationships with Maori communi-
ties. It advocated mainstreaming and devolving service delivery, stressing the contin-
ued strength of Maori tribalism:
Maori signatories to the Treaty of Waitangi represented a specific iwi or hapu. The strength of the
traditional iwi structure is reflected in their continuing existence today. They are strong, endur-
ing, sophisticated systems of co-operation and community effort and as such it has been advo-
cated that they provide an appropriate means of delivering government programmes to Maori
people.136
As a result the Ministry of Maori Affairs was restructured and the Iwi Transition
Authority set up to oversee the formation of Runanga Iwi, statutorily chartered tribal
bodies with the requisite contracting capability.
By the late 1980s it was also clear that settlements with Maori would eventually
ensue even though at that time none had been reached. By then the powerful Tainui
confederation of the central North Island, sidestepping the Tribunal, had begun direct
negotiation with the Crown. Faced with a Tribunal deluged with claims and a wide
range of claimants, more (though not all) of them likely to follow the Tainui route, the
government decided not only to set out the principles for its action but also sought to
bring uniformity to the status of claimants. The Runanga Iwi legislation (1990) was
thus born from the prospective demands of both the devolution and claims-settlement
processes. It was deeply unpopular with Maori who saw it as a reversal of the long-
standing relationship they had engineered between custom and legalism. The short-
lived Act constituted iwi into statutory form with authorized voices, executive bodies,
and constitutional processes for mandate and representation. This was a totalizing
regime that, Maori felt, smothered their customary and highly fluid political forms
with Pakeha legalism. The Act subordinated and suppressed their fluid political
processes. These had displayed considerable historical ingenuity in habilitating partic-
ular and less all-encompassing legal forms into the customary realm, but here they were
encased in an inflexible and domineering legal mode over which their control was
slight. However much the Act provided for constitution building and the like from the
ground up, that still occurred under the confining and defining roof of Pakeha legal-
ism. The new National (conservative) Government (1990) of Prime Minister Bolger
quickly repealed it.
The Bolger Government inherited a lusty Treaty-claims process that had exploded
into the New Zealand constitutional system with sudden unstoppable force. It
reviewed Maori policy in the Ka Awatea (it is dawn) Report (1991).137 As a result Te
Puni Kokiri (TPK) was established, replacing the Ministry of Maori Affairs and Iwi
Transition Authority (the latter associated with the repealed Runanga Iwi Act). The
report recommended the continued use of Crown-approved iwi for social service delivery.
136
Minister of Maori Affairs, He Tirohanga Rangapu: Partnership Perspectives (1988) 13.
137
See Denese Henare, The Ka Awatea Report: Reflection on its Process and Vision in M Wilson and
A Yeatman (eds), Justice and Identity (St Leonards, NSW: Allen and Unwin, 1995) 4560.
352 Aboriginal Societies and the Common Law

It also endorsed the shift towards mainstreaming, meaning that all government
departments were to provide culturally-responsive services for Maori with TPK facili-
tating Maori economic development. The report dwelt not only on claims resolution
and Maori unhappiness with progress under the (deposed) Labour Government, but
education, health, and social services. This report was associated with the flak-attracting
Minister for Maori Affairs, Winston Peters, who was dismissed from Cabinet in
October 1991.
In 1992 the National Government made the first modern claims settlement, the
pan-Maori sea fisheries settlement. By then Cabinet had agreed a full and final settle-
ment policy, but that was not announced until 1994. The Tainui (1994) and Ngai
Tahu (1995) settlements, both of which were accompanied by a Crown apology, fol-
lowed the sea fisheries. Legislation effecting these settlements reconstituted the
claimant iwi into new forms, leaving behind the Trust Board regime that had driven
and managed the claim. These settlements generated considerable dissension within
and between iwi and came before the courts constantly in the next decade. Other
claims were also being settled by the end of the 1990s through the Office of Treaty
Settlements, established in 1995. The ructions accompanying these signalled a future
as troubled as that of the settlements already in place. This spectre, one where Maori
processes were unable to contain inter- and intra-iwi disputation, became one of
increasing anxiety early in the new century. Essentially Maori were experiencing issues
of governance similar to those facing tribal groups in other jurisdictions. These were
surfacing at the pre- and post-settlement stages.
Meanwhile the National Government felt that it had to cork the flood of claims in
order to sell the Treaty settlement process to the wider electorate. Its proposals of
December 1994 were less a statement of principle in the 1989 style than a unilateral
setting out of the terms upon which it would proceed. By these principles the Crown
acknowledged historical injustices and committed itself to resolving them within a ten-
year timeframe in a manner that was consistent and equitable between claimant
groups, and which took into account fiscal and economic constraints and the ability of
the Crown to pay compensation. Mindful of the latter, the government announced the
unilateral imposition of a $NZ 1,000 million cap (or fiscal envelope) on the claims
process.138 Maori vehemently rejected the policy, which the government restated in the
1995 Budget, although it became progressively less emphasized and eventually fell to
the wayside. The new Labour-Alliance Government (1999) announced the envelope
had died, although in other respects the 1994 principles remained.
The claims processes dominated the attention of Maori politics, but legal activity
was also occurring on other fronts during the 1990s and lifetime of the Bolger
Government. The Resource Management Act 1991 included tangata whenua provi-
sions that gave Maori a voice in the statutory scheme. These consultation provisions
became much litigated in the next decade. A Maori Affairs Bill had been introduced in
Parliament in 1978, providing for the reform of Maori land tenure to make it more
compatible with principles of tino rangatiratanga. However it was not until the passage

138
Office of Treaty Settlements, Crown Proposals for the Settlement of Treaty of Waitangi Claims, 8
December 1994.
An Overview of the Era of Aboriginal Self-Determination 353

of the Maori Land Act 1993 (also known as Te Ture Whenua Maori Act) that the
overdue reforms were made. In particular the Act strengthened the machinery for the
creation of tikanga trusts over Maori freehold land to correct the problems stemming
from excessive fragmentation of title.
By the late 1990s, with the twin-tracked settlement processes at full steam, there was
growing concern about the dominance of claims resolution. A series of essays (Living
Relationships) published by the Ministry of Justice (1998) commented on the orienta-
tion of the claims process towards a once-and-for-all resultburying the claimrather
than reconstructing an ongoing Treaty relationship between Crown and Maori. Little
attention was being given to how the Crowns relations with Maori would operate once
the immediate issue had gone. Instead, the essays indicated, the result-oriented process
was concentrating on closure and the illusion of exit.139 There was some associated anx-
iety that claims settlement was fortifying the authority of the iwi at cost to dynamic self-
determining identity practices inside hapu140 and urban non-whakapapa groups (also
claiming aboriginal identity). There was a strong suggestion from within Maori circles
that the benefit of settlements was not reaching those who had been most drastically
affected by colonialismthe impoverished urban dwellers. The dispute over the alloca-
tion of income from the fisheries settlement fuelled that suspicion and required iwi to
demonstrate their concern for their urban kin outside the traditional takiwa (tribal
realm). Extra-territoriality thus became an explicit theme for iwi consideration.
Renewed militancy, in part sparked by the fiscal envelope proposal, was also a fea-
ture of the late 1990s. Numerous confrontations redolent of the mid-1970s occurred,
especially the Motua Gardens controversy that seemed for a long while only to escalate.
Another influential paper, this one by TPK (1998), spoke of the need to make sig-
nificant progress towards developing policies and processes that lead towards closing the
economic and social gaps between Maori and non-Maori.141 The TPK post-election
briefing to the incoming Labour-Alliance Government (1999) reported the progress
on Treaty settlements and Tribunal hearings and the ongoing problems of mandate and
representation that were spilling over into court and dragging the claims resolution
processes. It also reported little progress on closing the gaps. In February the next year
a policy announcement was made, setting out a strategy centralized under a Closing
the Gaps Committee with the Prime Minister in the chair. TPK was charged with
monitoring and developing capacity-building, which was receiving greater attention in
the light of the experience in the previous decade with two internal directorates (social
development and economic development). The Cabinet Committee was terminated
in 2001 and replaced by a new Social Equity Committee chaired by the Social Services
and Employment Minister.
The policy of the fifth Labour Government was to integrate the Treaty into wider
policies and programmes of social justice whilst maintaining the claims resolution

139
Ken Coates and PG McHugh, Kokiri Ngatahi = Living RelationshipsThe Treaty of Waitangi in the
New Millennium (Wellington: Victoria University Press, 1998).
140
Evidence before the Waitangi Tribunal in the Waipareira Claim indicated that hapu rather than iwi
had taken the main contracting role for service delivery: Waiapareira Report, para 7.2.13.
141
Te Puni Kokiri, Progress Towards Closing Social and Economic Gaps Between Maori and non-Maori ( July
1998).
354 Aboriginal Societies and the Common Law

processes in train for over a decade. In doing so, it aimed to keep Treaty principles
prominent and gave TPK the specific brief of monitoring outcomes. There was no wish
to make Maori affairs a matter of welfarism or to suppress aboriginality into broader
notions of minority. Also, ongoing Maori litigation and disputation in the claims settle-
ment arena brought their customary political practices onto the national stage in a more
overt and highly intensified form. This was a post-recognition pattern similar to that in
North America and (nascently) Australia. In 2000 the Minister for Treaty Negotiations,
Margaret Wilson, responded by rejigging the 1994 set of principles. Newer principles of
fairness of treatment between claims and transparency in negotiation and administration
of the settlement joined the earlier ones, revealing the governance concerns that had sur-
faced during the 1990s.142 As in the other jurisdictions, concern about aboriginal gover-
nance indicated that the legal system had moved beyond the recognition of the right to
self-determination to the more thorny territory of giving it specific legal form. Dressed as
tino rangatiratanga, the principle of self-determination was not itself contested and had
long been ingrained in government policy. In the post-recognition habitat of the 1990s,
the legal systems task was to give expression to the principle, the pursuit of which in par-
ticular cases and settings might be approachedand contestedin a number of ways.

6. The era of self-determination


(a) Self-determination in the period of recognition (1970s and 80s)
The resurgence of native political activism and rise in settler-state consciousness fed sub-
stantive legal development in the final quarter of the twentieth century. As the above sur-
vey showed, in all the jurisdictions this renaissance was triggered largely by government
proposals to remove the special legal rights and status of aboriginal peoples. This threat of
legal disappearance required the aboriginal peoples to articulate a counter-policy predi-
cated upon the retention and legal recognitionindeed the provision of mechanisms for
the enhancementof their aboriginality. This movement also drew inspiration at an
international level from the civil rights and decolonization movements of the same period.
The 1960s and early 1970s were watershed years. They were the high tide of legal liberal-
ism where the application of thoroughgoing notions of equality would have marked the
final annihilation of aboriginal status. The potency of the aboriginal response marked the
beginning of a new era, one to be characterized by a greater recourse to law (as well as mil-
itancy). The real equality being sought by native peoples was not in their relations and
standing amongst the general populace but in their dealings with the government. They
sought strengthened political, legal, and constitutional recognition of their distinct status
rather than its removal. The old liberal agenda of equality had been turned on its head:
aboriginal peoples demanded equality pitched at the highest levelthe governmental
onenot atomized at the lowest into individualized, undifferentiated citizenship.
By the mid-1970s, the era of aboriginal self-determination had surely begun.
Aboriginal peoples were demanding the legal provision of mechanisms for self-
determination in order to participate fully in national economic life whilst retaining
142
The Hon Margaret Wilson, New principles to guide the settlement of historical Treaty claims 20 July
2000, reported in [July 2000] Maori L Rev.
An Overview of the Era of Aboriginal Self-Determination 355

their distinct legal and constitutional status. What followed was a period of recognition
in which the legal system articulated new foundational principles to accommodate that
ruling principle. Self-determination was not simply something aboriginal groups
claimed. It was an aim many put into action with growing confidence and in growing
numbers, once it became plain during the 1980s that the legal systems had made (and
were making) sufficient acts of recognition towards the goal. For all their imperfection
and incompleteness, the new legal foundations laid in the period of legal recognition
in the 1970s and 1980s sustained this rising tide of aboriginal autonomy. As this activ-
ity increased and the legal systems entered their post-recognition phase in the 1990s,
mounting pressure in the legal systems gave self-determination a new, more complex
character.
Self-determination was not a goal achieved by aboriginal peoples at a single stroke,
and, anyway, described an ideal and a process rather than a result. The experience of the
last quarter of the twentieth century showed it to beas indeed it remains in the new
centurya highly difficult goal, a process as contested amongst aboriginal peoples
themselves as in their relations with governments and private sector. Although the ideal
of self-determination supposed and required a recalibration of the relationship
between aboriginal peoples and the government, caution was the hallmark of those
dealings. The legacy of a century was not shed overnight, nor in the space of a few years.
The accretion of aboriginal distrust could not be sanded away by smoothly-spoken
undertakings and rhetorical appeals to new beginnings. Aboriginal caution was an
expression of political maturity acquired over time. The caution was not one-sided.
Governmentspoliticians and officialdomwere so versed in the vernacular and psy-
chology of domination and control that a new climate in which they were to listen and
respond to aboriginal peoples entailed a cultural sea-change. Domination was not easy
to relinquish, especially when one inhabited institutions where it had long been the
norm. By the end of the century that mentality still had not disappeared, but there was
at least an official understanding of its inappropriateness. A related problem, especially
in North America, but also born of that political peripherality, was the shortage of
institutional memory in government bureaucracies like the BIA, DIAND, and
Department of Maori Affairs. Aboriginal nations constantly found officialdom at the
centre lacked familiarity with their specific situation, a tendency that accentuated
reliance upon government agents in the field (in North America, on-reservation Indian
Agents) and frustrated goals of self-determination.
The next chapter shows how that pervasive caution resulted in the repair rather than
complete replacement of the established land-based regimes for management of
indigenous peoples affairs (at least until the new century when radical overhaul of abo-
riginal governance was finally on the table in all jurisdictions). These regimes had come
under mounting pressure during the 1990s as aboriginal groups placed new demands
upon their outmoded structures and processes. This made fundamental legal reform
inevitable, although it was a long while coming. In the meanwhile, running repairs
were accomplished through legislative amendment and changes in administrative
practice. In America tribal constitution under the IRA stayed the usual vehicle for self-
governance, whilst in Canada the Indian Act remained virtually untouched except for
the controversial Bill C-31. In New Zealand the trust provisions of the Maori land
356 Aboriginal Societies and the Common Law

legislation were extended and the jurisdiction of the Maori Land Court revamped
(1993). Unlike the other jurisdictions, Australia did not have an historical model of
Aboriginal group status. However the model adopted there of land councils and asso-
ciations (1976) soon was hobbling in a manner not unlike the much older legal regimes
of other jurisdictions. All were struggling by the 1990s to meet the modern demands
of aboriginal groups, even the comparatively young Australian one.
That is not to suggest an absence of significant legislation, because in all jurisdictions
major legislative initiatives and, in Canada, constitutional protection happened during
the final quarter of the twentieth century. That legislationwith the dramatic exception
of the Native Title legislation (Cth) in Australiawas usually the outcome of agreement
between aboriginal peoples and government. The most dramatic examples occurred in
the statutes giving effect to claims settlements negotiated and agreed with governments.
This type of legislation was a notable legal phenomenon of the era of self-determination.
Dicey had described how the absolute sovereign will of the legislator (legal sover-
eignty) might be tempered by constitutional conventions. These were non-enforceable
principles or rules affecting the exercise of the sovereign power and they arose where
the political actors recognized and acted upon a rule that served a constitutional
purpose.143 He had spoken in the context of the unwritten common law constitution,
but even a written one like the American could never achieve comprehensiveness and
around its silences such conventions would also grow. By the final decade of the twen-
tieth century one might speak of a constitutional convention that statute law in the
aboriginal field would not be passed without consultation and agreement. Even if
indeed particularly ifaboriginal self-determination derived at law from the permis-
sion of the sovereign legislator, that behoved the sovereign to exercise its paramount
authority thoughtfully and in association with aboriginal ambition. That was the prin-
ciple behind the practice. In North America and New Zealand one could argue confi-
dently that by the late 1990s this practice represented a convention, though the
experience of Australia with the native title legislation in 1993 and 1996 suggested that
stage might not have been reached there.
The growth of that constitutional convention was also symptomatic of the considerably
increased aboriginal participation in the institutions of national governance. Not only
did they have growing representation (though still politically inconsiderable) in legisla-
tures and government, but they were also becoming sharper practitioners of the late
twentieth-century techniques of lobbying and media relations. Notable examples of
that use of political institutions included the accomplishments of Matiu Rata in the
third New Zealand Labour Government of the mid-1970s, Senator Ben Nighthorse
Campbell (R. Colo.144) in the 1990s as first American Indian to chair the Indian Affairs
Committee (Senate), and the filibustering of the Cree MLA Elijah Harper (1990) pre-
venting the Manitoba ratification of the Meech Lake Accord (1987).
The major claims-settlement statutes were the most powerful expression of the new
aboriginal involvement in the legislative process. In the United States the Alaska Native

143
AV Dicey, An Introduction to the Study of the Law of the Constitution (1st edn, London: Macmillan,
1885) ch 1415.
144
Republican, Colorado. Similar abbreviations in the customary US style are used later in this book.
An Overview of the Era of Aboriginal Self-Determination 357

Claims Settlement Act 1971 (ANCSA), an early and problematic example, was
followed by a series of settlement statutes from 1978.145 The various Arctic claims
settlements and Nunavut legislation in Canada, and the fisheries, Tainui, and Ngai
Tahu settlements in New Zealand also demonstrated that principle in operation. In
Australia that institutional familiarity lagged compared to the other jurisdictionsthe
Aboriginal voice was drowned out in the passage of the native title legislation.
However, even there, negotiated native title agreements became an established feature
of the statutory processes. Everywhere, these settlements were the outcome of a more
collaborative role for aboriginal peoples.
Yet the legislation that facilitated those negotiated settlements was not the product
solely of a new, more accommodating, mood in government. It has been indicated
already that the courts played an instrumental role in enfranchising aboriginal peoples
through landmark judgments that rocked governmental complacency in a field where it
had become used to calling its own tune. Of course, the governments could have spon-
sored legislation to overrule the court judgments, but that would have displayed a cava-
lier attitude towards the rule of law unthinkable at least in Canada and New Zealand
and constitutionally awkward in the United States. One of the bitter lessons for
Australian Aborigines from the native title legislation controversies was that the
Commonwealth was willing to abridge court judgments even in defiance of interna-
tional law as to render them more politically palatable and digestible. But even there,
however, the native title legislation stopped well short of overriding the general recogni-
tion of aboriginal title made by the Mabo and Wik judgments. It showed that the politi-
cians were not happy leaving the entire process to the courts, the court-led Canadian
approach to native title incompatible with the impatient Australian temperament.
Those landmark cases of the late 1970s1980s and (in Australia) early 1990s were
the monuments of the period of recognition. They shook the legal system into accom-
modation of aboriginal presence and set foundational principles for the jurisprudence
that followed. In these cases, senior judges reached for high language that sometimes
took a poetic and epic tone. The judgments made a careful effort to set out the facts in
as broad and detailed an historical context as possible with a careful and ample consid-
eration of the aboriginal view, as though by so doing they demonstrated the courts
commitment to an inclusive justice. Yet even where, as often they did, the judgments
sent the aboriginal claimants away empty-handed or back to trial to start again, they
nonetheless and very calculatedly opened the door to doctrinal development.
The common law thus came to articulate principles for the conduct of the relations
between government and its aboriginal peoples, this process being augmented in
Canada by the unelaborated constitutional recognition of existing aboriginal and
treaty rights in section 35 of The Constitution Act, 1982. Although aboriginal title was
the most dramatic manifestation of that trend in the Commonwealth jurisdictions, the
emergent and broader notion of common law aboriginal rights somehow transcended
the land-based character of the litigation. American courts always had their doctrine of
residual tribal sovereignty, which Martinez (1978) re-articulated forcefully, setting

145
See Imre Sutton, Not All Aboriginal Territory is Truly Irredeemable (2000) 24 American Indian
Culture and Research Journal 129162.
358 Aboriginal Societies and the Common Law

parameters for the future direction of federal Indian law. In the United States increasing
legalism therefore orbited about issues of self-governance and tribal jurisdiction rather
than land, the focus of the other jurisdictions case-law. However, the American courts
did recognize that tribes could sue the federal government for breach of trust, a spectre
that culminated in the Cobell litigation of the early 2000s. The Anglo-Commonwealth
cases did likewise, though more ambivalently (especially in Australasia). They
described the Crown as being in a fiduciary-like relation with aboriginal peoples, and
indicated that this was not limited merely to the Crowns formal ownership and man-
agement of tribal land and other assets. In short, they formed a Commonwealth ver-
sion of the American notion of breach of trust. In all jurisdictions the courts both set
and intimated standards of government conduct in relation to aboriginal people (apart
from, though including, the common law aboriginal title) that would be regarded as
justiciable. This standard-setting might have been vague and open-ended, hinting the
prospective judicial development of principles of government conduct beyond those
that were land- and asset-management based. Though indistinct, it was, however, a
very important outcome of the period of recognition. This spectre of a justiciable fidu-
ciary duty certainly generated a good deal of uncertainty within the public sphere as
well as some speculative and occasionally misbegotten litigation. However it signalled
the courts new willingness to look at legal and administrative processes in a more care-
ful manner, less disposed towards giving officials the free hand of before. It sent ripples
through governmental bodies and nudged them into a more responsive mood.
By the beginning of the last decade of the century, then, aboriginal peoples were being
judicially incorporated into the realm of public law, a new though indeterminate presence
that officialdom now overlooked at its peril. In Martinez (1978) the American Supreme
Court refused to apply Constitutional norms of equal treatment and non-discrimination
to the Pueblos membership code. This curbed the emergent trend in lower courts
where the ICRA had been used intrusively. In Canada the Guerin case (1984) described
the fiduciary responsibilities of the Crown, rendering it liable for high-handed bureau-
cratic neglect of Indian interests. The Sparrow (1990) case followed and held that in
setting conservation priorities for lake fisheries the Crown was requiredand could be
called upon by the courts to demonstratethat aboriginal interests had been given
appropriate consideration ahead of lesser interests (such as those of recreational user).
Similarly the New Zealand Court of Appeal issued a series of judgments (198690)
requiring the government to negotiate arrangements with Maori to protect the avail-
ability for claims settlement of Crown land and related assets (such as coal and timber)
about to be transferred to state enterprises. The court reserved the right to impose its
own arrangement in the event of the parties failing to come to some agreement. In
Australia, the High Court judgments in Mabo (1992) dramatically recognized com-
mon law aboriginal title. Those judgments were peaks, but there were many others that
demonstrated how courts were integrating the aboriginal element into the exercise of
public power. The message that governments and bureaucracies in Canada and
Australasia were not slow to read was that they should take incorporating measures of
their own motion or the courts would do so. Greater sensitivity to aboriginal peoples
interests was as apt to be required by the courts so much as an emanation from an
occasional policy initiative. By the late 1980s government departments and public
An Overview of the Era of Aboriginal Self-Determination 359

sector bodies were auditing and monitoring their processes in terms of their
accommodation of an aboriginal dimension, particularly in the areas of education,
health, and welfare. This meant that in Australasia and Canada aboriginal rights
litigationand the spectre of itwas as remarkable for the changes in government
practice brought by judicial suggestion and obiter dicta as by actual holding.
This willingness of the courts to breathe law into the government-tribe relationship
was more than a judicial response to the sad history that lay behind aboriginal litiga-
tion. During the last quarter of the twentieth century the courts had developed rules of
administrative law that had bridled the exercise of public discretion. The development
of particular principles for government-tribe relations was in many ways an extension
of that activity. Given the history of Anglo-American public law in the late twentieth
century, it would have been unusual had the courts not taken an interest in making
government-tribe relations justiciable.

(b) Giving rights aboriginally: self-determination in post-recognition


period (the 1990s)
The modern era of self-determination opened with the relationship between the
government and aboriginal peoples dominating legal attention. Courts spelt out fresh
parameters for that relationship and signalled their willingness to intervene. The out-
moded notion that these relations were non-justiciable matters of executive discretion
was replaced by more modern principles of judicial review and legality. As the govern-
mental relationship with aboriginal peoples was being redrawn during the 1970s and
1980s, tribes were becoming more active autonomous groups. Claims-making was an
important (if not dominant) part of this reanimated political life. However tribal
nations were asserting their authority in other spheres as well, such as contracting for
supply of governmental services or joint ventures with corporate interests. During the
1990s, claims settlement became a real prospect for many aboriginal groups and
boosted the revivifying tribalism. By the end of the 1990s those groups had become
more prominent in profile and ambition. Unless they were lucky enough to have a par-
ticular legal regime specially constructed (through settlement), or willing to adopt an
exclusively Anglo vehicle (such as incorporation or registered charity), they remained
constrained by the legal structures for aboriginal group enterprise already in place. The
exception was America where the principle of inherent sovereignty imbued the tribe
with self-executing authority that in the other jurisdictions required specific legal con-
stitution. Yet that difference did not spare American Indian nations a similar experience
to that of their brethren in other jurisdictions, for the hidebound, boilerplate IRA con-
stitutions still dominated their tribal systems. The more active a tribal nation became
and the more plentiful the rights headed or lodged its way, the more tested became each
nations mode of governance. Settlements and deal-making put tribal systems under
tremendous strain and during the 1990s that began to tell. Governance was a compen-
dious term used with growing regularity during the 1990s to encapsulate the range of
issues that increasingly were circling over the constitution of each tribal nation.
Whereas the legal focus of the previous two decades had been essentially binary
aboriginal nations and governmentthat of the 1990s became wider and multipartite.
Until then, simplistic depiction of (usually) antagonistic government versus aboriginal
360 Aboriginal Societies and the Common Law

form of engagement had largely sufficed. However as settlements and contracting


became a regular feature of aboriginal life, questions of status became more pressing.
That is, the period of recognition having led public institutions to accepting the exis-
tence of aboriginal rights (some, admittedly, ill-defined), attention turned to the
downstream, post-recognition questions surrounding the holding or management of
those rights. Who, it was asked, were the bodies to hold and manage those rights? In
order to reach settlement and hold the considerable assets available, aboriginal groups
were required to have a constitutional form recognized by law. Yet, in this more
autonomous post-recognition world, legal regimes such as the IRA constitution,
Indian Act band council, Maori Trust Board, or Aboriginal Association were plainly
inadequate, struggle as many groups did under them. The right of aboriginal groups to
determine their own membership was fully accepted; however the host legal system
expected clear mechanisms of composition and internal regulation to be put in place.
Groups receiving considerable resources, as from settlements, government servicing,
or (as in the on-reserve casino industry in the United States) administration of lucra-
tive enterprises, had to have in place the means of determining who could or could not
participate in the benefits. Whereas once identification of membership through enrol-
ment was regarded as a precondition to the dismantling of the tribal asset base, this now
became a precondition to its rehabilitation. Necessarily that meant that flexible
customary rules of membership were replaced by fixed textualized criteria.
Increasingly too, as resources were poised over or poured into the tribal pocket, the
stakes and level of the disputation inherent in any human group linked by kin and cul-
ture were raised. Not only was the composition of the group to be more clearly speci-
fied but also the internal procedures of leadership, management, and accountability.
For aboriginal peoples the price of participation in the post-recognition world was the
adoption of transparent, westernized forms of tribal constitutionalism. The principle
of aboriginal self-determination recognized the rule of tribal law, but for many tribes
that rule turned out to be not very different from Anglo law.
Deep-seated issues of status arose as the post-recognition phase got into stride. Not
only were aboriginal groups required to adopt a constitutionalized form in order that
they might hold rights, but they had to find means of resolving the internal disputes
relating to membership, leadership, and other issues of group dynamics. As settlement
loomed and contractual opportunities rolled in, aboriginal groups had to face these
questions of constitutional form squarely. The prospect might have been unattractive
to many but the alternative was bleak. Leaving governance alone could mean the group
would have to continue inhabiting the old, disliked regime, or it could mean the finan-
cial opportunities would not be realized. Unsurprisingly the controversies generated
within the group and between groups were intense and became a dramatic feature of
the 1990s. The vehemence of this disputation was often so fierce that neither the cus-
tomary nor ordinary legal systems could accommodate it happily. Furiously it leapt
from one mode to the other, and then usually inconclusively (for that was the nature of
what were often long-standing irresolvable tensions within the group and its relations
with others). Although frequently messy and inconclusive, the engagement of tribal
custom and Anglo legalism was neither wholly negative nor entirely positive in its
effects upon aboriginal culture. It was simply a reflection of how natural human
An Overview of the Era of Aboriginal Self-Determination 361

disputation could magnify and ricochet when considerable resources were at stake. For
aboriginal peoples the strains of settlement-time were symptomatic of the enduring
dialectic of colonialism, the tension between accommodation of westernism and
preservation of aboriginalism.
In this post-recognition environment Anglo legalism engaged the processes of internal
and external tribal engagement more actively than ever before. It was an encounter that
implicated not only the institutions of the stateits ministers, courts, legislators,
specialist tribunals, and bureaucraciesbut the constituents of aboriginal culture and
occasionally the general citizenry as well. The crude reductionism of claims-time had
changed into a complex legal web with a wide cast of actors and intricate cross-currents.
Moreover, that web also had a geographical aspect in that group-specific settlements
and rights entailed particular regimes over certain regions. Patchwork jurisdictional-
ism had long been a feature of American Indian law, but now it became a feature of the
Canadian and Australasian systems. Aboriginal peoples of these countries would not be
treated homogeneously. This acknowledgment of the differences within aboriginal
culture made provision for self-determination not only a slow, group-by-group process
but one marked by variegated structures and results.
The emergence of an intermediate Indigenous Sector was one important sign of the
complex network of actors, structures and theatres of engagement. This Sector was:
. . . neither the state (although it is almost entirely publicly funded), nor is it civil society
(though the organisations are mostly private concerns in their legal status). Rather the
Indigenous Sector is a third thing created out of the interactionsometimes, but not always,
frictionalof government and the Indigenous domain.146
The Aboriginal and Torres Strait Islander Commission (ATSIC) in Australia founded
in 1989 was an example of a body in that Indigenous Sector. Importantly, this sector
not only co-existed between the two clear zones of claims-timethe governmental and
traditional indigenous onesbut it became a site for new regional and national forms
of Aboriginal identity. Aboriginal nations also assumed responsibility for the delivery
of government services and programmes to their own people and that way became
part of the Indigenous sector. These groups entered into contractual arrangements with
government to perform its duties in areas such as education and health, determining
budget, setting priorities, and delivering services to aboriginal people. Urban, non-
status aboriginals outside the traditional political life of the tribal nation also entered
this sector. Their growing role in service delivery in urban areas enabled them increas-
ingly to claim their own distinctive rights to self-determination, sometimes antagonizing
the traditional territory-based polities.
In the last two decades of the century the legal landscape was far less monolithic.
Aboriginal people had obtained rights and, through them, resources that transformed
their situation and put them into a more bustling, multipartite political and legal
world. Activist and radical thrive in a world where claims are being directed angrily
against an oppressive state. Law firms flourish where money is circulating and deals
146
Tim Rowse, Do Indigenous Australians Have a Choice? Paper presented to The Power of Knowledge,
the Resonance of TraditionIndigenous Studies Conference 2001, Canberra: Australian National University,
1820 September 2001.
362 Aboriginal Societies and the Common Law

are being made. Generalizations are hazardous, but one can safely assert that aboriginal
people at the beginning of the twenty-first century were living in a law-ridden, post-
recognition world. In the short space of a decadethe hectic 1990stheir affairs were
becoming juridified, in the sense of being surrounded by a new, pervasive, and com-
modifying legalism.
This juridification occurred through a variety of interconnected means. It happened
in statute, and contractually in the texts of special agreements with government, local
authority, and corporations, settings where aboriginal peoples had some measure of
control. In that manner, when aboriginal peoples had been involved in the formation
of the statute or agreement, juridification was substantially a co-operative enterprise,
even where after negotiation and compromise they might not have been entirely
happy with the result. Governments consciously moved out of the antagonistic form
of engagement into a more conciliatory relationship with aboriginal peoples. The
conduct of individual negotiations was inevitably bumpy and tested that commit-
ment, but in principle (at least) it was there, as the steady trickle of settlements
confirmed. From the governments perspective this construction of particular regimes
by agreement with the claimant group was an expression of the principle of self-
determination. The cost of this rehabilitated relationship, however, was unrest within
aboriginal culture both inside the claimant group and in its relations with others.
Settlement came at a price not only to government but aboriginal peoples. The divisions
and cracks it made showed it was not necessarily the end of the history of colonialism
that governments liked to tout in selling the process to the wider, increasingly wary
(and weary) electorate.
Juridification also occurred in the courts to which aboriginal peoples took their dis-
putes with much greater propensity after the landmark judgments had signalled, some-
times misleadingly, a new approachability. There, of course, aboriginal fate was in the
hands of Anglo legalism. Although contestation had always been a fact of aboriginal
lifeas for all polities, whatever their culturein the last two decades of the century
(particularly in Canada and New Zealand) it was transplanted into this new forum, the
courts.147 Here it was remoulded by the haphazard and often indeterminate character
of doctrine formed through adversarialism as well as by the disposition of the judges.
Somethe British Columbia Supreme Court of the 1970s and 1980s a powerful
examplewere notoriously hostile to aboriginal claims. Minced through the formal-
ist case method of the common law, the ideal of aboriginal self-government and
-management did not always fare well. The courts might have become a better bet for
aboriginal peoples from the mid-1970s but, once the landmark judgments had rippled
through the system, they were not always a safe one, especially if the government were
a party. By the 1990s aboriginal peoples were more thoroughly engaged with the gov-
ernment at a political level with new leverage that the courts had surely facilitated. But
as the decade wore on, the courts were no longer as adventurously-minded as they had
been in the giddier, mould-breaking days of the 1970s and 80s. The Rehnquist
147
This is not to suggest that aboriginal people had not used the courts before, but to say that after the
landmark cases the propensity increased considerably. Maori had used the Native Land Court in the late
nineteenth century as a forum for established inter- and intra-tribal rivalries, a phenomenon that was in
many ways replayed in the ordinary courts during the 1990s.
An Overview of the Era of Aboriginal Self-Determination 363

Supreme Court chipped away at tribal sovereignty and the Anglo-Commonwealth


courts showed diminishing appetite for gesture-judgments against their governments.
There was a growing sense that the grand judicial pronouncements had been made, as
the courts showed a clear preference that aboriginal claims be resolved in a political
rather than judicial forum. On the whole that message was heeded, although litigation
(or rather the threat of it) remained an integral part of the repertoire of intensified
political engagement.
The increased appearance of inter- and intra-tribal disputes in the courts was also a
sign of juridification. Aboriginal people became more willing to litigate matters of
leadership (electoral matters most often), mandate, and representation before Anglo
adjudicators, a most un-customary process. Aboriginal peoples appropriated the mana
of the courts for their own purposes. In the United States the tribal courts were drawn
into that, and in response many articulated principles of judicial review against tribal
authorities. This phenomenon will be discussed more fully later, but here tribal courts
were able to draw upon threads or cords of custom to resolve such disputes. In the
Anglo-Commonwealth jurisdictions, however, these disputes came before white
judges who did not regard aboriginal custom with the same sense of intellectual avail-
ability as the tribal court benches in America. The courts of Canada and New Zealand
in particular struggled with this internecine litigation, failing to weave aboriginal cus-
tom into their consideration and resolution of the various matters. The courts did not
see that opportunity and with these internal disputes they largely struggled, much
more than in disputes implicating the government where the basic tools of judicial
review largely sufficed.
This inter- and intra-tribalism continued to be an area of legal exploration in the
twenty-first century and remained an area where judicial imagination struggled. In that
regard there was a lesson to be learnt from the South African experience, a direction from
which Anglo-Commonwealth lawyers have not been used to taking instruction. Since
1927 South African courts have been able to take cognizance of customary law.147
The South African Constitution (1996) maintained that, explicitly recognizing tribal
custom as a source of law as well as the institutions of tribal governance.148 A similar
provision in Australasian and Canadian law might have oiled a more coherent jurispru-
dence of aboriginal relations inter se. In this sphere judges seemed to freeze when faced
with the culturally-specific character of the litigation before them.
At the end of the twentieth century this intensifying legalism was taking a dominant
role in aboriginal affairs, perhaps too dominant some felt. Status continued to be at the
centre but now it was being spelt out in much more legal detail than previously. That
was reflected during the 1990s in the growing intensity of status-related issues.
147
Native Administration Act 1927.
148
South African Constitution 1996, section 211 (customary law) and section 212 (tribal institutions).
The subjection of these to the rest of the Constitution was opposed by customary law traditionalists who
wanted customary law to be exempt from the Bill of Rights. They argued that subordinating tribal law to
western-style constitutional rights was ethnocentric: Bede Harris, Recognising Indigenous Law in Australia:
Drawing on the African Experience in Charles Sampford and Tom Pound (eds), Beyond the Republic:
Meeting the Global Challenge to Constitutionalism (Sydney: Federation Press, 2001) 270, 271, 276. That ten-
sion between western constitutionalism and traditional customary modes has occurred in the Australasian
and American jurisdictions.
364 Aboriginal Societies and the Common Law

American Indian groups struggled to win federal recognition as the Rehnquist


Supreme Court pruned the reach of tribal jurisdiction. Other jurisdictions faced issues
of tribal constitution and governance. New Zealand began the decade with controver-
sial, short-lived legislation (1990) establishing a uniform system of iwi (tribal)
representation that Maori rejected vehemently. Early the next century its Law
Commission tabled proposals that had a similar ring, if better-dressed and velvet-
gloved. The Canadian government did not take the lesson from New Zealand on board
when it proposed a uniform system of First Nations governance to replace the Indian
Act (2002). First Nations protests were fierce and immediate, replaying the refusal of
New Zealand Maori to have indigenous group life funnelled into inappropriate legal
rigidity. In Australia a review of the Aboriginal Councils and Associations Act 1976
(2002) also proposed replacement of the outmoded statutory structure. The legal
forms for tribal governance and enterprise thus became important matters outstanding
at the time this book ends. Whereas the American model of inherent sovereignty was
enabling in itself, the other common law jurisdictions lacked that foundational prin-
ciple and sought the erection of new flexible statutory regimes. The difficulty they were
encountering early in the twenty-first century showed that pursuit of the ideal of self-
determination still remained a goal more easily stated than achieved.
The era of self-determination was the proverbial game of two halves. The first was
essentially a period in which aboriginal claims and rights were habilitated and recog-
nized by the legal systems of each jurisdiction. Aboriginal groups began tentatively,
then with more assurance, to claim and exercise rights of property ownership and self-
determination within the imperfect framework of each common law jurisdiction.
Those aboriginal rights having been admitted at least in principle, the second phase
was one in which their consequences started rippling through the institutional culture.
Recognition and post-recognition do not describe two discrete phases sealed off from
one another, for life in the latter retained strong elements of the former, especially in
moments when governments appeared to backtrack or grow cold on settlement and
reconciliation. Juridification signified the movement of the legal systems from a period
of recognition into the post-recognition terrain where those rights were integrated
with other rights. The intense legalism of the 1990s was essentially the bustle of the
rights-place, as aboriginal rights rubbed against other types and sites of rights.
Aboriginal group rights were being weighed against individual rights valued by the
host constitutional order, such as those of non-discrimination, accountability, and due
process. They were also rubbing against the rights and jurisdictional interests of public
sector institutions of governance apart from the central governmentfederal units like
States and Provinces, or municipal authorities. Aboriginal rights also had to be consid-
ered against the interests and welfare of the wider community, as the prioritizing exer-
cise of Sparrow showed. In the post-recognition period of the 1990s each legal system
began integrating aboriginal rights into the rights-place of the common law. This was
a fraught and ongoing business, by its nature an inconclusive and continual as well as
messy one. Inevitably suspicion was fuelled that the ongoing processes of refinement
were pruning those rights back rather than amplifying them. The history of aboriginal
rights in the post-recognition era was not necessarily a wholly progressive one, as the
An Overview of the Era of Aboriginal Self-Determination 365

track record of the Rehnquist Supreme Court in America and legislation of the
Howard Government in Australia in the late 1990s showed. However any suggestion
that aboriginal rights were precarious underestimated the paradigm shift that had hap-
pened in the first three decades of the era of self-determination. Aboriginal affairs were
now firmly and irreversibly rights-based.
The following chapters consider those two phases of the era of settlement in more
detail. The next chapter (7) explains how each legal system brought aboriginal affairs
into a rights-led process. Chapter 8 describes the new, fraught landscape of the post-
recognition phase. One might see 198595 as the crucial transitional period. In that
period the convulsions of legal recognition changed into incipient downstream issues
of governance and reconciliation that were in full cogitation at the end of the century.
The transitional character of the decade 198595 is reflected in the organization of
material in the next two chapters. Chapter 7 describes the recognition period of the
1970s and 1980s but with an eye also towards the looming, more intense legalism of
the 1990s. It incorporates aspects of the transitional period but leaves their fuller expla-
nation for the next chapter (8). The final chapter (9) looks at aboriginal claims, land-
related in particular, and straddling both periods considers the means by which each
jurisdiction accommodated them.