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Australian Indigenous Constitutions: Recognition and Renewal

Published online by Cambridge University Press:  01 January 2025

Anna Dziedzic  and
Mark McMillan
Anna Dziedzic
Affiliation:
Melbourne Law School
Mark McMillan
Affiliation:
Melbourne Law School
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Abstract

The Anglo-Australian legal system has not readily recognised Indigenous constitutions. The absence of such recognition does not, however, deny that Australia's Indigenous nations have had constitutions for thousands of years and continue to do so. In this article, we explain how Indigenous laws, institutions and systems of authority are constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri nation as examples, we identify three dimensions of Indigenous constitutions in Australia: first, the foundation of Indigenous constitutions in the continuing and inherent authority of Indigenous nations; secondly constitutional features deriving from Indigenous law; and thirdly the use in Indigenous constitutions of institutions and processes that also have status under Australian law. We suggest that this new understanding of Indigenous constitutions provides a basis for contributing to current efforts in Indigenous constitution-making and to the development of a more inclusive understanding of the Australian constitutional system.

Type
Article
Information
Federal Law Review , Volume 44 , Issue 3 , September 2016 , pp. 337 - 361
Copyright
Copyright © 2016 The Australian National University

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Footnotes

Mark is a Wiradjuri man from Trangie, NSW. The authors would like to thank Kirsty Gover, Coel Kirkby, Cheryl Saunders, Adrienne Stone, Alison Vivian and the two anonymous reviewers for their assistance with this project.

References

1 Throughout this article we use the term ‘Indigenous’ to refer to the first peoples of Australia. We acknowledge the wide diversity of Aboriginal and Torres Strait Islander peoples and groups within this categorisation and use the term ‘Indigenous’ for convenience only.

2 Australian Law Reform Commission, Aboriginal Customary Law (Report no 31, 1986)Google Scholar recommended federal legislation to recognise Aboriginal customary law in the areas of marriage, children and family law; criminal law; property and hunting and fishing: [1006], [1007], [1010]. Law Reform Commission of Western Australia, The Interaction of Western Australian Law with Aboriginal Law and Culture (Report no 94, 2006)Google Scholar covered similar issues but also dealt briefly with community governance.

3 Exceptions include Crawford, James, ‘The Aboriginal Legal Heritage: Aboriginal Public Law and the Treaty Proposal’ (1989) 63 Australian Law Journal 392Google Scholar; Morris, Christine, ‘Constitutional Dreaming’ in Beyond the Republic: Meeting the Global Challenges to Constitutionalism (Federation Press, 2001) 290–9Google Scholar; Webber, Jeremy, ‘Beyond Regret: Mabo's Implications for Australian Constitutionalism’ in Ivison, Duncan, Patton, Paul, Sanders, Will (eds), Political Theory and the Rights of Indigenous Peoples (Cambridge University Press, 2000) 60, see especially at 80–1.Google Scholar

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12 These include Australian Research Council Discovery Project (DP1092654), The applicability of research and practice on nation rebuilding in North American Indigenous communities to Australian Indigenous communities (awarded 2010); Melbourne School of Government Research Cluster Grant, Indigenous Nation Building: Theory, Practice and its Emergence in Australia's Public Policy Discourse (awarded 2013); Australian Research Council Linkage Grant (LP140100376), Indigenous Nationhood in the Absence of Recognition: Self-governance Strategies and Insights from Three Aboriginal Communities (awarded 2014). Mark McMillan is an investigator in all projects.

13 Detailed case accounts have been prepared by Alison Vivian in partnership with the Gunditjmara peoples and Ngarrindjeri nation as part of the Indigenous Nation Building Collaboration.

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29 Lake Condah Sustainable Development Project, Leadership Group and Community Update October 2009 <http://www.riverfoundation.org.au/admin/multipart_forms/mpf__resource_85_1___ref%2028%20LCSDP%20Update%20Oct%202009%20FINAL.pdf>, 1, citing research by Dr Ian McNiven.

30 Gunditjmara People with Wettenhall, above n 27, 23; Weir, above n 28, 8; Builth, above n 28, 63.

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34 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 145.

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36 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 145.

37 Aboriginal Land Act 1970 (Vic).

38 The settlement was made following the High Court's decision in Onus v Alcoa (1981) 149 CLR 27. Legislation to implement the settlement was blocked by the Victorian upper house, but was eventually enacted by the Commonwealth parliament at the request of Victoria pursuant to s 51(xxvi) of the Constitution: Weir, above n 28, 11.

39 Lovett v Victoria [2007] FCA 474 (30 March 2007). Weir, above n 28, 19–22.

40 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 145.

41 Ibid 146.

42 Ibid 145–6.

43 Ibid 146; Gunditj Mirring Traditional Owners Corporation, About <http://www.gunditjmirring.com/#!about/ch24>.

44 These stories are retold in Diane Bell (ed) for the Nation, Ngarrindjeri, Kungan Ngarrindjeri Miminar Yunnan: Listen to Ngarrindjeri Women Speaking (Spinifex, 2008)Google Scholar, ch 2, with authorisation from senior members of the Ngarrindjeri nation.

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49 Ngarrindjeri Regional Authority, Submission to South Australian Government, Aboriginal Regional Authorities: A Regional Approach to Governance in South Australia, September 2013, 5.

50 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 142.

51 Ngarrindjeri Regional Authority, above n 49, 5.

52 Ibid.

53 Ngarrindjeri Regional Authority, Ngarrindjeri Regional Authority (November 2010) <http://www.ngarrindjeri.org.au/>.

54 Ibid.

55 Ngarrindjeri Regional Authority, Aboriginal Regional Authorities, above n 49, 5.

56 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 143.

57 Bell for the Ngarrindjeri Nation, Kungan Ngarrindjeri Miminar Yunnan, above n 44, 75.

58 Kartinyeri v Commonwealth (1998) 195 CLR 337. A group of Ngarrindjeri women sought to prevent the construction of a bridge to Hindmarsh Island in order to protect culturally significant and sacred sites. Their claims, which were partly based on knowledge that was restricted by Ngarrindjeri law to certain women, were disputed. External parties and some Ngarrindjeri people asserted that the claims were fabricated. After a royal commission, extensive litigation and several government inquiries, the bridge was built in 2001. The South Australian Government later accepted that the women's claims were genuine. See Simons, Margaret, The Meeting of the Waters: The Hindmarsh Island Affair (Hodder Headline, 2003).Google Scholar

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64 Bell, Ngarrindjeri Wurruwarrin: A World that Is, Was and Will Be, above n 45, 16, 103, 592; Marcia Langton, cited in World Council of Churches, Justice for Aboriginal Australians (Australian Council of Churches, 1981) 13Google Scholar; Watson, Kaldowinyeri – Munaintya In the Beginning, above n 62; Graham, Mary, ‘Some Thoughts about the Philosophical Underpinnings of Aboriginal Worldviews’ (2008) 45 Australian Humanities Review 181.Google Scholar We acknowledge that the term ‘the Dreaming’ is a generic English translation or ‘gloss’ of far more complex and diverse Aboriginal languages and understandings of time, creation and law; and that Torres Strait Islander legal systems are based in a different understanding of creation and connection: Grieves, Vicki, Aboriginal Spirituality Aboriginal Philosophy: The basis of Aboriginal Social and Emotional Wellbeing (Cooperative Research Centre for Aboriginal Health, Discussion Paper Series no 9, 2009), 8–11.Google Scholar

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68 Watson, Kaldowinyeri – Munaintya, above n 62.

69 Morris, above n 3.

70 Black, above n 62, 24–5, 41. See also Watson, Kaldowinyeri – Munaintya, above n 62, 4.

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77 Jones, above n 14, 188.

78 Vivian and Jorgensen, above n 7.

79 See, eg, Reconciliation Australia, Indigenous Governance Toolkit <http://www.reconciliation.org.au/governance/>; Centre for Aboriginal Economic Policy Research, Australian National University, Indigenous Community Governance Project <http://caepr.anu.edu.au/research/Indigenous-Governance.php>.

80 Michael Dodson and Diane Smith, ‘Governance for Sustainable Development: Strategic issues and Principles for Indigenous Australian communities’ (Discussion Paper, No 250, Australian National University, Centre for Aboriginal Economic Policy Research, 2003) <http://caepr.anu.edu.au/Publications/DP/2003DP250.php>.

81 Ibid 2.

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85 Office of the Registrar of Indigenous Corporations, ‘Public Register’ <http://www.oric.gov.au/>.

86 Ngarrindjeri Regional Authority, Rules of the Ngarrindjeri Regional Authority (27 April 2007) <http://www.ngarrindjeri.org.au/about-us/publications/>.

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89 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 144.

90 In this article we use the term ‘borrowing’ as it seems the most apt to the circumstances of Indigenous constitutions. Other terms used to describe this phenomenon include ‘diffusion’, ‘transplant’, ‘transfer’ and ‘migration’.

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97 Webber, above n 3, 66–8.

98 Ibid 67.

99 Hemming and Rigney, ‘Unsettling Sustainability’, above n 4, 761.

100 Webber, above n 3, 86.

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102 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 143; Hemming, Steve, Rigney, Daryle and Berg, Shaun, ‘Ngarrindjeri Futures: Negotiation, Governance and Environmental Management’ in Maddison, Sarah and Brigg, Morgan (eds), Unsettling the Settler State: Creativity and Resistance in Indigenous Settler-State Governance (Federation Press, 2011) 104.Google Scholar

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104 Ibid.

105 As discussed above in Part IV.A, such knowledge might be subject to rules controlling its communication.

106 Rigney, Daryle, Hemming, Steve and Berg, Shaun ‘Letters Patent, Native Title and the Crown in South Australia’ in Johnston, Elliot, Hinton, Martin and Rigney, Daryle (eds), Indigenous Australians and the Law (Routledge-Cavendish, 2nd ed, 2008) 163.Google Scholar

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114 Roughan, above n 113, ch 8.

115 Judgments of the High Court have rejected the idea that Indigenous peoples are distinct and separate nations within the Australian legal system: Coe v Commonwealth (1979) 24 ALR 118, 129 (Gibbs J); Coe v Commonwealth (1993) 118 ALR 193, 200 (Mason CJ); Wik Peoples v Queensland (1996) 187 CLR 1, 214 (Kirby J); Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [43] (Gleeson CJ, Gummow and Hayne JJ).

116 Reilly, above n 82, 419.

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120 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 145.

121 Bell for the Ngarrindjeri Nation, Kungan Ngarrindjeri Miminar Yunnan, above n 44, 78.

122 In North America see Champagne, Duane, ‘Remaking Tribal Constitutions: Meeting the Challenges of Tradition, Colonialism and Globalization’ in Lemont, Eric D (ed), American Indian Constitutional Reform and the Rebuilding of Native Nations (University of Texas Press, 2006) 11.CrossRefGoogle Scholar

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125 Wilkins, ‘Seasons of Change’, above n 92, 43–44; Lemont, Eric D (ed) American Indian Constitutional Reform and the Rebuilding of Native Nations (University of Texas Press, 2006) 3–5.Google Scholar

126 Kalt, above n 123, 79–80.

127 Ibid 80–1.

128 See above n 7.

129 von Bogdandy, Armin, Häußler, Stefan and Hanschmann, Felix, ‘State-Building, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Different Approaches’ (2005) 9 Max Planck Yearbook of United Nations Law 579, 580–8.CrossRefGoogle Scholar

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131 See, eg, Australian Government Solicitor, ‘Overview’ in Australia's Constitution (Commonwealth of Australia, 2012) v.Google Scholar

132 Aboriginal and Torres Strait Islander Commissioner, Social Justice Report, above n 4, 130–1.

133 Hemming and Rigney, ‘Unsettling Sustainability’, above n 4.

134 Kalt above n 123, 81, quoting Judge Joseph Thomas Flies-Away.

135 Saunders, Cheryl, ‘Constitutional Review in Peace Processes: Securing Local Ownership’ (2014) 25 Accord 56.Google Scholar

136 Mabo v Commonwealth (No 2) (1992) 175 CLR 1, see especially at 56 (Brennan J).

137 Part IV.C above.

138 The Expert Panel's discussion paper included an option for the Constitution to be amended to enable the Commonwealth to enter into agreements with Indigenous communities which would have the force and effect of Commonwealth law: You Me Unity, A National Conversation about Aboriginal and Torres Strait Islander Constitutional Recognition, Discussion Paper May 2011, 19–20. The Final Report did not adopt this recommendation, on the basis that constitutional backing for agreements with Aboriginal and Torres Strait Islander peoples would be likely to confuse many Australians and jeopardise the success of a referendum; and because the Constitution already confers power on the Commonwealth to enter into such agreements: Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel, January 2012, ch 8.

139 For an example in the Canadian context, see Henderson, Sa’ke’j, ‘Trans-systemic Constitutionalism in Indigenous Law and Knowledge’ in Kamboureli, Smaro and Verduyn, Christl (eds), Critical Collaborations: Indigeneity, Diaspora, and Ecology in Canadian Literary Studies (Wilfried Laurier University Press, 2013).Google Scholar

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