Introduction Marcia Langton, Maureen Tehan and Lisa Palmer Indigenous peoples, encapsulated by colonial regimes, and subsequently, settler states, have long attempted to negotiate for the recognition and redress of historical injustices. To varying degrees, they have also sought state recognition of their rights of sovereignty. Barkan1 argues that these claims (whether by Indigenous peoples or others), based on injustice and the desire for recognition by the nation-state, are increasingly addressed by negotiating restitution.2 The power of this process of voluntary negotiations and agreements is that, while it goes some way towards making amends for past injustices, it also redefines future interactions between victims and perpetrators and attempts to negotiate improvements on existing social injustices. Moreover, restitution enables victimised groups to be recognised as groups, forcing a re- examination of the Enlightenment understanding of justice as exclusively the protection of individual human rights. Indigenous peoples have brought to international attention the injustice of colonialism and the colonials’ self-justifying claims to dominion. They have developed various models for the negotiated settlement of rights in their ancestral property and jurisdiction. Legal scholars have supported their rejection of the fantastic nature of settler states’ claims to legitimacy and the alternative arrangements developed, such as treaties.3 The contributions in this book examine, among other things, the idea of recognition and restitution through the making of agreements, which 1 Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (W.W. Norton & Company, New York, 2000). 2 Ibid, xxvi. Barkan refers to restitution ‘comprehensively to include the entire spectrum of attempts to rectify historical injustices’ (ibid, xix). Restitution ‘is thus not only a legal category but also a cultural concept’ (ibid). 3 James Anaya, Indigenous Peoples in International Law (Oxford University Press, New York, 1996); John Borrows, ‘Sovereignty’s Alchemy: An Analysis of Delgamuukw v British Columbia’ (1999) 37 Osgoode Hall Law Journal 537; John Borrows ‘Domesticating Doctrines: Aboriginal Peoples after the Royal Commission’ (2001) 46 McGill Law Journal 615–661; Robert Williams The American Indian in Western Legal Thought (Oxford University Press, New York 1990); Garth Nettheim ‘“The Consent of the Natives”: Mabo and Indigenous political rights’ (1993) 15 Sydney Law Review 223–246; Paul McHugh ‘The Common-Law Status of Colonies and Aboriginal “Rights”: How Lawyers and Historians Treat the Past’ (1998) 61 Saskatchewan Law Review 393. 1 2 Honour Among Nations? has become the principal form of engagement between Indigenous nations and the modern nation-state. Building on their histories of engagement through treaty making (and breaking), in the United States of America, Canada and New Zealand, negotiated agreements have replaced treaties as the modern arrangement for engagement with Indigenous peoples with respect to resource use.4 Agreement making emerges in our historical analysis as an instrument of governance within and between the nation-state and Indigenous nations, or, as we sometimes refer to them, aboriginal polities. Particularly in settler nation-states that coincide with a number of aboriginal polities having their own customary law regimes, agreement making has evolved among these diverse entities as a means of engaging rationally in dealings in land access and use, resource distribution and governance. Such agreements eventuate in only the most opportune circumstances, however. The variation in outcomes from comprehensive settlements in Canada, such as the Nunavut Agreement,5 to the agreement involving extinguishment or impairment of native title or other rights, such as in Australia, requires, at the very least, some explanation. Some of this explanation lies in history, and several contributions in this collection expand our understanding of the political 4 Richard Bartlett, ‘Canada: Indigenous Land Claims and Settlements’, in Bryan Keon- Cohen (ed.), Native Title in the New Millennium: A Selection of Papers from the Native Title Representative Bodies Legal Conference 16–20 April 2000, Melbourne (Aboriginal Studies Press, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Canberra, 2001); Shaunnagh Dorsett and Lee Godden, A Guide to Overseas Precedents of Relevance to Native Title (Native Title Research Unit, AIATSIS, Canberra, 1998); Michele Ivanitz, The Emperor has No Clothes: Canadian Comprehensive Claims and their Relevance to Australia, Native Title Research Unit Discussion Papers, Regional Agreements No 4 (Native Title Research Unit, AIATSIS, Canberra, 1997); Marcia Langton, ‘Dominion and Dishonour: A treaty between our nations’ (2001) 4(1) Postcolonial Studies 13–26; Gary D. Meyers, Garth Nettheim and Donna Craig, Indigenous Peoples and Governance Structures (Aboriginal Studies Press, AIATSIS, Canberra, 2002); Margaret Stephenson, ‘Negotiating Resource Development Agreements with Indigenous People: Comparative international lessons’ in Bryan Horrigan and Simon Young (eds), Commercial Implications of Native Title (Federation Press, Leichardt, NSW, 1997); Canada, Royal Commission on Aboriginal People, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship vol. 2, part 1 (Supply and Services Canada, Ottawa, 1996); Gordon Christie, Delgamuukw and Modern Treaties (2000) Delgamuuk National Process http://www.delgamuukw.org/research/ moderntreaties.pdf at 19 July 2000; John Borrows, ‘Negotiating Treaties and Land Claims: The Impact of Diversity within First Nations’ Property Interests’ (1992) 12 Windsor Yearbook of Access to Justice 179–234; John Borrows, ‘Nanabush Goes West: Title, Treaties and the Trickster in British Columbia’, in John Borrows (ed.), Recovering Canada: The Resurgence of Indigenous Law (University of Toronto Press, Toronto, 2002); Deloria Vine, ‘Reserving to Themselves: Treaties and the Powers of Indian Tribes’ (1996) 38 Arizona Law Review 962–980. 5 The Inuit of the Nunuvat settlement area and the Government of Canada, Nunuvat Land Claims Agreement (1993) Department of Indian and Northern Affairs: Canada http://www. ainc-inac.gc.ca/pr/agr/nunavut/index_e.html at 12 November 2003. Introduction 3 status of Indigenous peoples under colonialism and the practice of treaty making. Other chapters explain how the standing of Indigenous nations has been diminished, whether as a result of judicial decision or executive fiat. Others consider the ways in which recognition and substantive outcomes flow from agreement making, even in circumstances in which law has failed to accord formal recognition. Indigenous people and human rights law The twentieth-century paradigm of evolving Indigenous rights has involved a refining of human rights and law, with special reference to the circumstances of Indigenous peoples, as Morse explains.6 There is no single concept of Indigenous rights, but rather an ever-growing body of law, opinion and practice, much of it developed during the twentieth century and arising from both the demands of Indigenous peoples themselves and from the concessions made by governments, international bodies and others to recognise various special rights and interests, and to accommodate them. Moreover, as Morse observes,7 the stature of Indigenous legal issues and the position of Indigenous peoples have grown dramatically in impor- tance under both international and domestic law: In 1994, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities adopted a Draft Declaration on the Rights of Indigenous Peoples, which had been under development by the Working Group on Indigenous Populations since 1982. This Draft Declaration is currently under exhaustive clause-by-clause review before the UN Human Rights Commission. … In 1994, the UN adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, thus ensuring that it made advances for both indigenous and minority peoples. The International Labour Organization (ILO) overhauled Convention 107 through the development in 1989 of the Indigenous and Tribal Peoples Convention 169, which has subsequently come into force, that concentrates upon a collective rights base approach and recognizes the continued existence of indigenous peoples as distinct peoples. More recently, the Organization of American States (OAS) has been consulting upon a proposed American Declaration on the Rights of Indigenous Peoples that could be adopted for the Western Hemisphere. In other regional fora, the European Council and the Organization for Security and Co-Operation in Europe (OSCE) have developed a series of international documents and institutions to recognize and protect the rights of minorities, which can provide 6 Bradford Morse, ‘Treaties, the Courts and Indigenous Rights’ (Paper presented at the 13th Commonwealth Law Conference, Melbourne, Australia, 13–17 April 2003) 1–2. 7 Ibid. 4 Honour Among Nations? some advances for the indigenous peoples of that continent. … Associations that are founded on shared history of colonialism, such as the Commonwealth and la Francophonie, have also begun to develop embryonic documents on human rights, as well as generate initial studies and rudimentary discussion on the rights of indigenous and minority peoples. Simultaneously, many countries have chosen or been compelled to address the economic, political and legal situations of indigenous peoples within their domestic context. Constitutional recognition of indigenous peoples and their unique rights has occurred over the last two decades in a number of countries, while others have enacted fundamental changes through national legislation and policies. The highest appellate courts in a variety of countries have issued landmark decisions that have transformed the internal relationships between indigenous peoples and the nation states in which they live and fundamentally affected the political and legal landscape.8 Treaties and the development of international law The period of the expansion of empires that led to the kinds of treaties, and the later forms of these pacts as modern agreements, is fertile terrain for understanding the several key concepts in the body of political thought and law on the nature of Indigenous rights. The history of treaty making in the ‘New World’ extended over 400 years for the British and French, and over 500 years for the Spanish, Dutch and Portuguese, with divergent outcomes throughout the colonies. Imperial powers found it necessary in various situations to justify acts of domination for juridical purposes. The starting point for European expansion in the fifteenth century was the absence of formal relations between sovereigns with extra-European peoples, despite the legacy of the Roman Empire throughout Europe, and the trade relations that extended as far as China. The reach of the European powers into the ‘New World’ brought new peoples and civilisations within the ambit of a new international code of European regulation, and law developed ad hoc to justify conquest, trade, safe passage and other exigencies of imperialism. Thus, after initial contact had been established, the potential approaches of the imperial entities to regulate relations included all of those from unilateralism to reciprocity. Between these two extremes it was possible to find variants that expressed relations of ambiguous equality and inequality.9 8 Ibid. 9 Charles Henry Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies 16th, 17th and 18th Centuries (Clarendon Press, Oxford, 1967). See also Langton and Palmer, this volume. Introduction 5 The British have used treaties for the settlement of disputes since the thirteenth century. Treaties have been common practice between nations and states, either in the form we now know them at international law, or in different forms which stem from past customary law practices.10 When the British and other European imperial powers entered the New World, treaties and agreements with Indigenous people ensued. Following the War of Independence in the colonies of America: Chief Justice Marshall of the United States Supreme Court explored the dilemma of the conflicting rights of settlers and Indigenous people, and adopted the compromise known as native title at common law. The Chief Justice reviewed the practice of Europe which developed after the 1537 Papal Bull, and declared that the ‘rights of the original inhabitants were, in no instance entirely disregarded … They were admitted to be the rightful occupants of the soil, with legal as well as just claims to retain possession of it’.11 Richard Bartlett, writing about Johnson v McIntosh, says that ‘the equality declared by Chief Justice Marshall was tempered by a regard for pragmatic considerations’.12 This decision was qualified to the extent that Chief Justice Marshall declared that, where the interests of settlers conflicted with the interests of Indigenous people, it was necessary to ‘resort to some new and different rule, better adapted to the actual state of things’ in recognising title to land. Thus, although ‘Indians were recognised as the “rightful occupants of the soil”, …their title was “necessarily, to considerable extent, impaired”’.13 Such general justifications played a crucial role in European expansion overseas. They had inherent universal applicability and included such well- known terms as ‘the right of conquest’, and ‘humanitarian’ or ‘civilising intervention’. Significantly, such justifications referred to rights that were specifically claimed by the European powers, such as the right to propagate the faith unhindered. Formally established juridical relations co-existed 10 In the entry on ‘treaty’ in the Oxford English Dictionary, we find the claim that the first formal and written treaty made in England was in 1217 between Henry III and the Dauphin of France; John Simpson, and Edmund Weiner (eds), Oxford English Dictionary (Clarendon Press, Oxford, 2nd edn, 1989) vol. XVIII, 465. 11 Richard H. Bartlett, Native Title in Australia (Butterworths, Sydney, 2000) 6; Johnson v McIntosh, 8 Wheat 543 (1823); 5 L Ed 681 (1823); 21 US 543 (1823). As Bartlett points out, the United States Supreme Court repeatedly affirmed the Johnson v McIntosh decision in Cherokee Nation v Georgia, 5 Pet 1 (1831); Worcester v Georgia, 6 Pet 515 (1832); Mitchell v United States, 34 US (9 pet) 711 (1835); United States v Cook, 86 US 591 (1873); United States v Santa Fe Pacific Railroad Co, 314 US 339 at 345 (1941). 12 Bartlett, above n 11, 6. 13 Ibid; Johnson v McIntosh, 8 Wheat 543 (1823) 574, 591, 599; 5 L Ed 681(1823) 688, 693, 695; as cited in ibid. 6 Honour Among Nations? alongside claims to rights which the European powers never succeeded in securing in practice or which could only be secured at a much later stage.14 From the early nineteenth century, international law and its norms, elaborated by Europeans as an essential adjunct to their expansionist and colonialist activities around the globe, were taken to be universal. ‘The bone of contention was determining who were the subjects of such a universal system of norms’.15 Colonial subjecthood As Evans shows in Chapter 3 of Part 1, with her comparison of nineteenth- century settler manipulation of Indigenous peoples’ political and legal subjecthood in Natal and Western Australia, the rule of law enabled the replication of the nation-state that evolved in Britain—‘a nation-state which had itself been constituted through conquest, coercion and colonialism’.16 As Evans argues, the rule of law operated ideologically throughout the nineteenth century as though the colonies were already the nation-states they would become, but with enduring and detrimental consequences for the Indigenous subjects, especially denial of equality before the law. In colonies of conquest, international law demanded the recognition of customary law and polities, while in settled colonies such as Australia (where the fiction of terra nullius was upheld), pre-existing laws and customs were not recognised. Rather, as British subjects, Indigenous peoples were theoretically entitled to the equal force and protection of British law. However, Evans argues that the British were able to circumvent their own legal standards by creating a separate system of criminal law which belied Aboriginal people’s status as equal subjects. Evans’s analysis places the scourge of racism, the hallmark of Enlightenment ideas that were fostered in Imperial expansion, at the centre of these developments. The colonial law effectively punished Aboriginal people, whose allegedly criminal offences inhibited settlement, and in this way criminalisation of native subjects went hand in hand with their dispossession. In the 1830s, the Colonial Office in Britain had decreed that ‘the new colonial constitutions should contain no discriminatory provisions on the basis of race, colour, class or creed’.17 However, Evans notes that: 14 Miguel Alfonso Martinez, Report of the Special Rapporteur on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations: Second Progress Report, UN ESCOR, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 44th sess, Un Doc E/CN.4/Sub.2/1995/27 (1995). 15 Ibid, para 167. 16 Evans, this volume, 72. 17 Ibid, 73. Introduction 7 the incommensurability of this theoretical commitment to liberty and equality with the economic aims of settlement—predicated on the need to subject and dispossess these same Indigenous peoples—together with prevailing notions of European superiority, meant that caveats were placed on the possibility of full equality for Indigenous peoples as British subjects at the outset.18 By example, the use of the British criterion of property qualifications for political rights in Natal was a powerful tool for disenfranchisement and disempowerment, while all the while appearing as the application of the rule of law. Such colonial foils, in the end, placed the issue of property and rights to land at the centre of the decolonisation agenda, and indeed, postcolonial history. North America During the same period, in the United States of America, despite the findings at law as to Indigenous nations being the ‘rightful occupants of the soil’, the doctrine of discovery was interpreted as an exercise of dominion that impaired the standing of these Indigenous nations. Nevertheless, the formal recognition of Indigenous peoples as entities with sovereign status, such as in the United States of America and New Zealand, had considerable advantages over the situation in Australia. In North America, from the time of first settlement, in the years 1533 to 1789—that is, prior to independence and the Marshall cases—the administrators of British colonies treated Indian nations as equal sovereigns. They were relationships ‘between sovereign nations’ that ‘accorded tribes an equivalent status to that of the colonial governments’.19 After independence, up until 1871, ‘the United States government assumed the role of the British and Spanish governments and continued the earlier British policy of treating with the Indians as members of sovereign nations. These treaties were made under the authority of the federal treaty making power’ enshrined in the United States’ constitution.20 ‘In 1871, treaty making with the Indian tribes was discontinued as it was seen as an impediment to the assimilation of Indians into white society’.21 After 1871: 18 Ibid. 19 Dorsett and Godden, above n 4, 2. 20 Ibid; David Getches, Charles Wilkinson and Robert Williams Jnr, Federal Indian Law: Cases and Materials 3rd edn (West Publishing Co, St Paul, 1993) 2–6. 21 Dorsett and Godden, above n 4, 4; Appropriations Act 1871, (25 USC § 71 [1976]), § 71: Future Treaties with Indian Tribes: No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with 8 Honour Among Nations? ‘agreements’ rather than ‘treaties’ were made with the Indians. Between 1911 and the 1970s, Congressional practice was to obtain some kind of consent from the Indians for any action it was considering which might affect them. Current practice is to use negotiated settlements as a means of dealing with complex issues.22 Dorsett and Godden suggest ‘[a]n example of this is the Alaska Claims Settlement Act (43 U.S.C. 1601–1629). Other subjects of negotiated settlements include child welfare and gaming on Indian reservations.’23 Treaties in Canada proceeded from a different basis from those in the United States of America. Almost forty treaties were negotiated between first nations and the British Crown during the period 1693 to 1862. The majority of these were peace and friendship treaties. However, Indian peoples were not considered to be sovereign powers. Post Confederation treaties, the numbered treaties, ‘tended to follow a pattern of surrender of lands in return for particular rights, for example continued hunting and fishing rights, supplies or monetary payments’, or smaller areas of Reserve land.24 In 1982, a new section, section 35, was inserted into the Constitution Act. It provides that ‘the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed’. Further, at sub-section 3, it includes land agreements as ‘treaty rights’ in order to achieve ‘greater certainty’. In addition, section 25 of the Charter of Rights and Freedoms provides that ‘the guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada’.25 The existing aboriginal and treaty rights include common law aboriginal rights and title. Together with the notion of the honour of the Crown and the Crown’s fiduciary obligation to aboriginal peoples, these elements underpin agreement and treaty making in modern Canada. The historical interplay between coloniser and aboriginal nations in North America and modern aspects of Canadian/aboriginal relations in the agreement-making process are explored by Morse in Chapter 2. A broad range of agreements exists in Canada today, including comprehensive land- claim settlements, some of which include self-government agreements; whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired’. 22 Dorsett and Godden, above n 4, 6. 23 Ibid. 24 Ibid, 22. 25 Ibid, 23. Introduction 9 impact-benefit agreements; interim-management agreements; consultation agreements; local-service agreements; and many other types.26 Some are legally enforceable; others are not.27 The Canadian Constitution Act 1982 protects some, while the status of others is uncertain. Some agreements are based on building long-term relationships; others involve only short- term, singular projects. However, Morse argues that the totality of these agreements demonstrate that Indigenous people are now engaging with others across the public and private spectrums in a manner that has become a normal part of business in Canada. It is an outcome that demonstrates that ‘the unthinkable can in fact become commonplace’.28 The common law and constitutional tapestry woven by Morse provides a more optimistic backdrop for Chartrand, de Costa and Tehan in Part 2 (Chapters 6, 7 and 8, respectively), whose detailed analyses of the application of some of these principles present a more pessimistic view. For these authors, the pathway to modern, comprehensive agreements with aboriginal nations in Canada is strewn with obstacles, and in British Columbia at least, the unthinkable is not yet commonplace. Using the Royal Commission On Aboriginal Peoples as his guide, Chartrand points to serious anomalies in the modern Canadian treaty process, which excludes some aboriginal peoples such as the Métis,29 and does not adequately extend recognition and self-governance principles within existing treaty negotiations. He identifies the failure of the common law to accord adequate modern recognition to all aboriginal nations and the reliance on nineteenth-century notions of recognition as central to the failure of the modern process to meet the standards set by the Royal Commission for ‘nation-to-nation relationships institutionalised in treaties’30 and a reconciliation of ‘the national interest of each aboriginal treaty party with the interests of other Canadians’.31 He proposes direct legislative recognition of all aboriginal nations as the first requirement for a realigned relationship on a nation-to-nation basis. Both de Costa and Tehan add a further dimension to this critical analysis 26 Bradford Morse, ‘The Continuing Significance of Historic Treaties and Modern Treaty-Making: A Canadian and United States Perspective’ (Seminar presented at Negotiating Settlements: Indigenous Peoples, Settler States and the Significance of Treaties and Agreements: Beyond the Frontier seminar series, Institute of Postcolonial Studies, Melbourne, Victoria, 22 July 2002). 27 Ibid. 28 Ibid. 29 The need to incorporate the Métis in the modern agreement process may be accelerated by the recent Supreme Court of Canada decision in R v Powley [2003] SCC 43 (17 March, 2003, 19 September 2003) in which certain Métis rights to hunt were recognised as constitutionally protected rights under s35 of the Constitution Act 1982. 30 Chartrand, this volume, 132. 31 Ibid. 10 Honour Among Nations? of the modern treaty process by focusing in detail on the operation of the process in the Province of British Columbia. Tehan takes up the theme of the inadequacy of the common law in relation to the modern treaty process in British Columbia, suggesting that common law recognition of aboriginal rights and title has failed to produce meaningful negotiations or agreement in the Province. She argues that while law may to some extent operate to transform attitudes, the inexorably political dimensions of negotiating agreements requires more than law to produce agreements that adequately protect aboriginal rights and title and engage the jurisdiction of aboriginal nations. Complementing this analysis, de Costa argues that the British Columbia Treaty Process is institutionally flawed in its structure, the content of negotiations and the attitudes of the federal and provincial governments. Resonating with Chartrand’s broader analysis and Tehan’s view of law’s role, de Costa paints a bleak picture of the political processes surrounding treaty negotiations, and questions whether in this political and institutional moment in British Columbia there can be a rebalancing of the ‘colonial relationship’.32 Rather, he suggests that ‘an incremental approach, even a permanent culture of negotiation’33 may be preferable to final agreements, a view also taken up by Agius et al.34 New Zealand The Treaty of Waitangi, signed in 1840 between the Maori and the British colonial government, ‘is recognised as the founding document of New Zealand which resides in the constitutional field of its system of government.35 The Treaty is in two versions: English and Maori. Because they vary in meaning quite substantially, there were problems of interpretation such that the English version had been privileged over the Maori. These differences between the versions have caused controversy in the interpretation of the Treaty and the application of treaty principles.36 The Treaty established the right of the Crown to govern in New Zealand and the terms of a peaceful settlement: In exchange Maori rights to their lands, resources and taonga [treasured things] were affirmed and Maori were granted the rights and privileges of 32 de Costa, this volume, 146. 33 Ibid. 34 Agius et al., this volume. 35 Dorsett and Godden, above n 4, 32. 36 Ibid, above n 4, 31–33; New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 (‘Maori Land Council case’).