Aboriginal and Torres Strait Islander people had their own laws and systems of governance in their traditional societies. Although they didn’t have governments, they had rules and made decisions collectively, and although they didn’t have courts, there were processes for resolving disputes and for punishing people who broke the rules.
Indigenous laws and governance structures have never been recognised by colonial governments or Australian law. This stands in stark contrast to other countries like Canada, the United States and New Zealand where colonial governments recognised that the indigenous people in those countries did have the capacity to represent themselves and to enter into agreements and treaties. This recognition of a capacity to act like a nation is a way of recognising the sovereignty of a ‘people’, of recognising that they are a nation and that they have the ability to be self-governing.
As a consequence of having no treaties signed in Australia, there was no recognition of Aboriginal sovereignty. Even though treaties in countries like the United States and Canada were not often upheld in the past, they have provided the basis for indigenous people in those countries to claim a distinct political entity that has the ability to have some limited jurisdiction. In the United States, this has seen First Nations people have the ability to establish tribal courts, be exempt from some state taxes and be able to establish casinos that generate income for their communities.
But just because the dominant legal system hasn’t recognised the sovereignty of Indigenous people doesn’t mean that it doesn’t exist. In fact, many Indigenous people assert their sovereignty and argue that they never surrendered it, or ceded their land; that they continue to feel a distinct identity and have a distinct history.
Some nations have even sought to set up their own systems of governance – the Wiradjiri Council of Elders in New South Wales, the Gunditj Mirring Traditional Owners Aboriginal Corporation in Victoria and the Ngarrindjeri Regional Authority Inc in South Australia. All of these established mechanisms that assist the community to make decisions and to represent them in negotiations with governments and other entities.
Other bodies have also been established that seek to represent a broad number of Indigenous Australians. In 1990, the Hawke government passed legislation that established the Aboriginal and Torres Strait Islander Commission (ATSIC). ATSIC was a federal government department but it had an elected board of Commissioners that made decisions on behalf of Aboriginal and Torres Strait Islander people around the country who elected them. There was also a network of elected ATSIC Regional Councils. It had a range of responsibilities that included delivering a work-for-the-dole scheme in communities where there was little opportunity for paid employment and a housing and infrastructure program. It also provided money for community projects, including programs to prevent domestic violence. It did not, however, have responsibility for key areas such as education and health. It was abolished in 2005.
A new national body emerged in 2009, largely because Indigenous people around the country felt that the abolition of ATSIC left a void and thought there needed to be something that advocated nationally on key issues on behalf of Aboriginal people. The National Congress of Australia’s First Peoples is an elected body and people have to join as members to vote. It has over 2000 members. It is funded by the federal government until 2015 and is expected to be self-sufficient after that.
The largest representative body in Australia today is the New South Wales Aboriginal Land Council. Established in 1983, it has over 23 000 members (one in three Aboriginal people in New South Wales are members) and has a network of over 121 local Aboriginal land councils. It has a portfolio of land valued at $2 billion and a capital fund of $680 million. The land council also attends United Nations forums to represent the views of the members.
Self-determination is a concept that derives from international law and is a central idea in the key international human rights documents. Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have as Article 1 the right to self-determination. Their provisions state: ‘All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’
This principle of self-determination was intended to be the foundation stone of a new and stable world order. Self-determination was vested in ‘peoples’ and was applicable against a state. This formulation was an exception to the new international law framework since it was one of the few areas in which a right was seen to be vested in a group. It was revolutionary in that, in certain circumstances, it gave ‘peoples’ a right exercisable against their state. It was envisaged as being applicable to ‘peoples’ within the territory of defeated European empires. It was not thought to apply to overseas colonies and not extended to Indigenous people within the borders of existing states, like in Australia, New Zealand, Canada and the United States.