1
Indigenous Lands and the Australian Constitution:
Could the Canadian Constitution Provide some Guidance for Protection of Australian
Indigenous Land Rights?
By
Margaret Stephenson*
1. Introduction
Securing the recognition of Indigenous title to traditional lands in both the courts and in
legislation has not been easily achieved in Australia. The High Court’s recognition of native
title in Mabo v State of Queensland (No2)1 occurred some 200 years after white settlement
and the Native Title Act 1993 (Cth) was enacted by the Commonwealth government as a
political response to the Mabo decision. Statutory Aboriginal title first was recognised in
Australia in 1976 with the passage of the Aboriginal Land Rights (Northern Territory) Act
(Cth). Protecting Indigenous land rights should be a priority in any Constitutional
amendment.
This submission suggests that consideration be given to the Canadian model of constitutional
protection and recognition of Indigenous rights to land. This is contained in Part 11 of the
Canadian Constitution Act, 1982.2 In Canada, section 35(1) constitutionally protects “the
existing aboriginal and treaty rights of the aboriginal peoples of Canada" from the time that
Act came into force on April 17, 1982. In Australia, no constitutional protection is afforded
to Indigenous land rights or native title. It is submitted that the Canadian model could be
adapted to suit the Australian context. It could be used to afford both recognition and
protection to the land rights of Indigenous Australian peoples. Adopting the Canadian
constitutional model is one way in which Indigenous property rights could be afforded
** Senior Lecturer in Law, TC Beirne School of Law, University of Queensland.
1 (1992) 175 CLR 1 (hereinafter Mabo).
2
Schedule B to the Canada Act 1982, UK, 1982 c.11. See generally re Canadian Constitution and Aboriginal
rights: McNeil K, Emerging Justice: Essays on Indigenous Rights in Canada and Australia, (Native Law
Centre, University of Saskatchewan, Canada, 2001); Hogg P, Constitutional Law of Canada (Loose-leaf, 5th
edition), (Toronto, Carswell Ltd, 2007), Ch 28; Macklem, Patrick. Canadian Constitutional Law. 3rd ed.
Toronto: E. Montgomery, 2003; Monahan, Patrick. Constitutional Law. 3nd ed. Concord, Ontario: Irwin Law,
2002; and the Canadian Royal Commission on Aboriginal Peoples. Report of the Royal Commission on
Aboriginal Peoples (Ottawa : The Commission, 1996)| .
2
protection and recognition in the Australian Constitution but it is certainly not the only
constitutional change which could be adopted. Alternative methods might include, for
example, a constitutional guarantee of “just terms” which applies to the States and Territories
and, as well, native title or alternative settlement mechanisms protection. It is beyond the
scope of this paper to explore these alternatives. The focus of this paper is to consider the
Canadian constitutional model in section 35 Constitution Act, 1982.
In Canada constitutional change occurred in relation to Aboriginal peoples when a collection
of provisions entitled “Rights of the Aboriginal Peoples of Canada” was included in the
Canadian Constitution in 1982. In an effort to remedy past injustices and to afford protection
to Aboriginal rights such rights were included in Canada’s Constitution Act, 1982, when it
was patriated from Britain.3 A general protection of Aboriginal rights was contained in
section 35. These provisions comprise a substantive section that offers protection for
Aboriginal land and treaty rights (s 35) and a procedural section that promises Aboriginal
representation prior to Constitutional amendments (s 35.1).
Section 35 of the Constitution Act, 1982, the more significant section, affirms and guarantees
constitutional protection of the “existing” Aboriginal and treaty rights of Canadian
Aboriginal peoples. The key section of the Canadian Constitution re Indigenous rights is
section 35 which provides:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis
peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now
exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of the Act the aboriginal and treaty rights
referred to in sub-section (1) are guaranteed equally to male and female persons.
Section 35 defines Aboriginal peoples to include Indians, Inuit and Metis,4 provides that
Patriation was the termination of the United Kingdom’s Parliament’s authority over Canada, which was
achieved in 1982 when the Constitution Act 1982 was passed.
4
Section 35(2) Constitution Act, 1982.
3
3
modern land claim agreements are “treaties” within the meaning of the section 5 and promises
equal rights to male and female Aboriginal peoples.6
Section 35.1 of the Constitution Act, 1982, commits the Canadian government to convene a
constitutional conference, which includes Aboriginal representatives, prior to any amendment
being made to any part of the Constitution dealing directly with Aboriginal peoples.
Section 25 the Constitution Act, 1982, (also included as part of the Canadian Charter of
Rights) has been designed to protect Aboriginal treaty and other rights by excluding section
35 provisions in the Canadian Constitution, 1982, from forming a part of the Canadian
Charter of Rights and Freedoms.7 Section 25 guarantees that the protection given to
individual rights in the Charter will not be interpreted as detracting from the protection of
“aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of
Canada”.8 Thus this section ensures that the Constitution is interpreted in a manner that will
respect Aboriginal and treaty rights and that the equality guarantee in s 15 of the Charter will
not affect such rights.
This submission will review the Aboriginal provisions in the Canadian Constitution Act,
1982, and will consider whether an amendment to the Australian Constitution, in terms
similar to the Aboriginal provisions in the Canadian Constitution Act, 1982, would provide
protection to Indigenous land rights in Australia and assist in the resolution of issues of land
justice and fairness for Australian Indigenous peoples.
2. Constitutional Division of Powers in Canada and Australia
5
Section 35(3) Constitution Act, 1982 provides that "treaty rights" in subsection (1) include rights that now exist
by way of land claims agreements or rights that may be so acquired.
6
Section 35(4) Constitution Act, 1982 states that notwithstanding any other provision of this Act, the aboriginal
and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
7
Section 25 of the Canadian Charter of Rights and Freedoms protects “aboriginal, treaty or other rights or
freedoms” of Aboriginal peoples from being altered because of the Charter’s guarantee of individual and
collective rights and freedoms.
8
Section 25 provides: 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 including:
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;
and
(b) Any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
4
To assess the effect of s 35 of the Constitution Act, 1982, Canada, and to evaluate whether a
similar provision could afford the requisite protection to Australian Indigenous land rights, it
is necessary to have an understanding of the differences in the constitutional division of
powers in Canada and Australia.
Canada
In Canada, exclusive jurisdiction to deal with “Indians, and Lands reserved for the Indians"
under section 91(24) of the Constitution Act, 1867, is vested in the federal government.9 This
comprises two heads of power: one over Indians, whether they reside on reserve lands or not,
and another that extends to both Indians and non-Indians where the laws relate to “Lands
reserved for the Indians”. This provides the Canadian federal government with the power to
enact laws relating to Indians and Indian lands such as the Indian Act. As the Canadian
federal government has exclusive jurisdiction in relation to Aboriginal lands this means that,
prior to the constitutional entrenchment of Aboriginal rights in 1982, the federal parliament
would have had the exclusive power to extinguish Aboriginal title or Aboriginal rights. The
provinces have no power in the Constitution over Aboriginal title or Aboriginal rights, 10 and
accordingly the provinces lack the constitutional power to extinguish these rights. An
additional implication arises re provincial jurisdiction. Given that federal jurisdiction over
Aboriginal title is an exclusive jurisdiction provinces should not have the constitutional
power to enact laws which infringe or regulate (as opposed to extinguishing) Aboriginal title
or Aboriginal rights.11 However, the Supreme Court in Delgamuukw v British Columbia12 left
the question of provincial jurisdiction to infringe or regulate Aboriginal title unclear and
unresolved.13 (Note the very different position in Australia, where state and federal
governments have concurrent jurisdiction over Aboriginal peoples.)
Australia
In Australia the constitutional division of powers is different from that in Canada in that the
9
See generally for a discussion of s 91(24) Constitution Act, 1867, Hogg, supra, Ch 28.
This is apart from the specific provisions like paragraph 12 of the Natural Resources Transfer Agreements.
11
Provincial legislative powers are set out primarily in s 92 of the Canadian Constitution Act, 1867. The
provinces have no head of legislative power under the Constitution that allows them to legislate for Indians or
Indian lands.
12 [1997] 3 SCR 1010 (hereinafter Delgamuukw).
13 See Stephenson MA, “Provincial Legislative Powers and Aboriginal Rights Since Delgamuukw: Can a
Province Infringe Aboriginal Rights or Title?” (8) 2003 International Trade and Business Law Annual 55.
10
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Australian Constitution gives the Commonwealth government an enumerated list of powers
with the residue of possible legislative powers left to the States. Jurisdiction over Aboriginal
lands is not vested solely in the Commonwealth; it remains with the States. In contrast to the
position in Canada, the Australian federal government acquired jurisdiction to make laws in
relation to Aboriginal affairs only in 1967. Prior to 1967 the States had the exclusive power
to make laws concerning Aboriginal people within their jurisdiction. Until the referendum in
1967, Aboriginal people (living in the various States) were expressly excluded from the
legislative power of the Commonwealth. Section 51 of the Constitution was amended to give
the Commonwealth concurrent power with the States over Aboriginal affairs.
3. How and why did s 35 of the Canadian Constitution Act, 1982, come about?
Why the need for Constitutional Reform in Canada?
The unique position of Aboriginal people within Canada had been recognised in 1867 with
the Canadian federal parliament being allocated the responsibility for “Indians, and Lands
reserved for the Indians” in the Constitution Act, of 1867.14 In 1969, a White Paper on Indian
Policy issued by the Trudeau government promoted policies for the assimilation of
Aboriginal people into Canadian society.15 The overwhelming response from Aboriginal
Canadians was a total rejection of the assimilation policies and a claim for special status to
allow Aboriginal peoples to maintain their identity and culture.16 In the 1970s the Aboriginal
movement’s increasing political momentum resulted in Aboriginal issues being included in
deliberations regarding the new Canadian Constitution. Despite the history of treaties and the
development of common law Aboriginal rights, it was evident that issues of justice and
fairness in Aboriginal and Crown relationships had not been resolved in Canada.17
A number of reasons have been identified as to why the need for constitutional protection
arose in Canada.18 These include the following:
See McNeil K, “The Decolonisation of Canada: Moving Toward Recognition of Aboriginal Governments”
(1994) 7 (1) Western Legal History, 113, 118-.121.
15
Statement of the Government of Canada on Indian Policy, 1969 (Ottawa 1969).
16
The Alberta Indian Association’s “Citizens-Plus” was presented to Prime Minister Trudeau and the Canadian
government in 1970. This “Red Paper” became the official position of the National Indian Brotherhood.
17
For example, the 1973Canadian Supreme Court decision in Calder v Attorney General of British Columbia
[1973] S.C.R. 313, where it was confirmed that Aboriginal title existed at common law.
18
Hogg supra at 28-41.
14
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
Uncertainties regarding Aboriginal rights, especially as to the definition of Aboriginal
title to land (although subsequent cases have resolved some of these uncertainties in the
Canadian context, many continue to remain unresolved).19

Parliamentary sovereignty which allowed Aboriginal rights to be altered or extinguished
by a competent legislative body.

The fact that Aboriginal rights could be extinguished or changed by a constitutional
amendment but that Aboriginal parties were not (at this time) guaranteed a right of
participation in the Constitutional amending process.20
Additionally, Canadian courts have indicated that the underlying purpose of section 35 is the
reconciliation of the pre-existence of Aboriginal societies with the assertion of sovereignty of
the Crown.21 All of the above could also be relevant in the Australian context in arguing for
Australian constitutional protection for Indigenous rights.
How did s 35 of the Canadian Constitution Act, 1982, come about?
At the time of drafting section 35 it was intended that the section be accompanied by an
“identification and definition” of the rights of Aboriginal peoples. Accordingly, section 37
required that a constitutional conference be convened within one year of the coming into
force of the Constitution Act, 1982, to determine the proper interpretation of the rights of
Aboriginal peoples.22 Such conference was in fact held in 1983, and although little
advancement occurred regarding the identification of the meaning of Aboriginal rights, selfgovernment rights were examined closely at this conference. Certain other constitutional
amendments were approved.23 One of these amendments required that at least two additional
19
See Delgamuukw [1997] 3 SCR 1010.
Hogg, supra, at 28-42.
21
See for example, Van der Peet at para 44, para 20.
22
Section 37 Constitution Act, 1982, (since repealed) mandated the holding of First Ministers Conferences
regarding section 35. Section 37 was repealed after the convening of the first Constitutional Conference in 1983.
Section 37.1 was then included by the Constitutional Amendment Proclamation 1983. Section 37.1 provided
that:
(1) In addition to the conference convened in March 1983, at least two constitutional conferences
composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by
the Prime Minister of Canada, the first within three years after April 17, 1982 and the second within
five years after that date.
(2) Each conference convened under subsection (1) shall have included in its agenda matters that
directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite
representatives of those peoples to participate in the discussions on those matters.
Now see s 35.1. See also McNeil, Decolonisation, supra at 121-123.
23
Sections 35(3) and 35(4) Constitution Act, 1982 were added.
20
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conferences be convened prior to April, 1987. In fact three additional conferences were
held.24
During this period the Penner Report was released.25 It recommended that “the right of Indian
peoples to self-government be explicitly stated and entrenched in the Constitution of
Canada”. The federal government responded by drafting a constitutional amendment on selfgovernment at the 1984 conference.26 Further conferences on Aboriginal matters neither
resolved nor clarified the constitutional rights of the Aboriginal peoples of Canada. As one
academic commentator notes,27 after the discontinuation of these conferences the recognition
of Aboriginal and treaty rights in section 35 took on a new significance and today Aboriginal
people view their inherent right of self-government as an existing Aboriginal right that is
entrenched in the Constitution by section 35.
The final round of constitutional discussions culminated in the Charlottetown Accord in
1992.28 This Accord proposed changes to the Constitution Act, 1867 that would have
provided an acknowledgment that Aboriginal peoples governed themselves prior to European
settlement and still retain the right of self-government. The Charlottetown Accord was,
however, rejected by the Canadian electorate in a national referendum in 1992. No further
constitutional conferences have been held in Canada regarding Aboriginal rights.
4.
How has section 35 of the Canadian Constitution Act, 1982, been interpreted?
“Aboriginal peoples of Canada”
This phrase is defined to include “the Indian, Inuit and Metis peoples of Canada” but no
further definition is provided.29
“Aboriginal and treaty rights”
24
Section 37.1 Constitution Act, 1982.
Indian Self-government in Canada: Report of the Special Committee (Ottawa, 1983) at 44.
26
Proposed 1984 Constitutional Accord on the Rights of the Aboriginal Peoples of Canada, March 8, 1984.
27
McNeil, Decolonisation, supra, at 126.
28
Canada, Consensus Report on the Constitution (Charlottetown: Government of Canada, 1992). The incentive
to undertake further constitutional negotiations followed the failure of the 1987 Meech Lake Accord, which had
been intended to obtain Quebec’s approval of the Constitutional Act, 1982.
29
Metis describes people who have mixed ancestry.
25
8
Aboriginal rights and treaty rights are not defined in s 35 so it is necessary to refer to the
common law interpretations. Aboriginal title is regarded as a subset of Aboriginal rights. At
common law Aboriginal title has been recognised by the Canadian courts since 1973 with the
decision in Calder,30 although it was only with the 1997 Supreme Court’s decision in
Delgamuukw that some of the key issues regarding Aboriginal title were resolved and a
clearer definition of Aboriginal title emerged.31 The Delgamuukw court confirmed that site
specific rights to engage in particular activities and Aboriginal title are distinct. Site specific
Aboriginal rights are practices, customs and traditions integral to the distinctive Aboriginal
culture of the group, where the use and occupation of land are not sufficient to support a
claim to the land. For example, a right to hunt in a specific area of land that is not Aboriginal
title land would be a site specific right. Site specific rights can be established even where
Aboriginal title cannot (for example, where the requisites to prove Aboriginal title cannot be
established). It is therefore possible that in Canada some Aboriginal communities will
possess rights protected by s 35 of the Constitution Act, 1982, and yet not have title to land.
Concerns have been raised in the academic literature that the Constitutional protection of
such rights has adversely affected their definition and interpretation in the Canadian Supreme
Court.32 For example, in R v Van der Peet Lamar CJ approached defining Aboriginal rights
by reference to their constitutional protection.33 His Honour stated:
“The task of this Court is to define aboriginal rights in a manner which recognizes
that aboriginal rights are rights but which does so without losing sight of the fact that
they are rights held by aboriginal people because they are aboriginal. The Court must
neither lose sight of the generalized constitutional status which s 35(1) protects, nor
can it ignore the necessary specificity which comes from granting special
constitutional protection to one part of Canadian society. The Court must define the
scope of s 35(1) in a way which captures both the aboriginal and the rights in
30
Calder v AG British Columbia [1973] SCR 313. See generally re Aboriginal title and rights: McNeil K,
Emerging Justice: Essays on Indigenous Rights in Canada and Australia, (Native Law Centre, University of
Saskatchewan, Canada, 2001) and Stephenson MA, Resource Development on Aboriginal Lands in Canada and
Australia”, (9) 2002-2003 James Cook University Law Review – Special Issue: Native Title: A Decade After
Mabo, 21-73;, 102-158.
31
Delgamuukw [1997] 3 SCR 1010.
32
McNeil, K and Yarrow D, “Has the Constitutional Recognition of Aboriginal Rights Adversely Affected
Their Definition?” (2007) Supreme Court Law Review (2007) 37 SCLR (2nd) 177.
33
Van der Peet [1996] 4 CNLR 177.
9
aboriginal rights.” 34
Following from this Lamar CJ then formulated the “integral to the distinctive culture test” for
Aboriginal rights. Lamar CJ in Van der Peet emphasised Aboriginal rights are rights that only
one section of Canadian society has the benefit of, thus it would seem that the
constitutionalisation of these rights has led to restrictions in the extent of these rights. McNeil
and Yarrow recognized this problem with the Canadian Supreme Court’s interpretation of
Aboriginal rights and stated:
“Because ‘aboriginal rights existed and were recognised under the common law’
prior to the enactment of section 35(1), the test for identifying and defining them
should not depend on section 35(1) and the purposes behind it.... Given that those
rights were already in existence, they would have to be definable by a test that could
have been applied before section 35(1) was enacted.”35
Section 35(3) – future treaty protection
Section 35(3) Constitution Act, 1982, provides:
For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by
way of land claims agreements or may be so acquired.
Because this section includes not only treaty rights that exist now but also treaty rights that
“may be so acquired”, future treaty rights can gain constitutional protection. This section was
included because of concerns that the Aboriginal parties who negotiated modern land claims
agreements (post 1982) and who gave up constitutionally protected Aboriginal rights in
exchange for new rights granted in the land claims agreements would not have received
constitutional protection for the new rights.
“Existing”
Protection under section 35 is given to “existing” Aboriginal and treaty rights. That is those
“Aboriginal and treaty rights” that were in existence on 17th April, 1982, when the
Constitution Act, 1982, came into force. The Canadian Supreme Court in R v Sparrow36
interpreted the word “existing” as meaning “unextinguished”. According to the Court in
34
Van der Peet at para 44.
See McNeil and Yarrow, supra, at 187 and 191.
36
R v Sparrow [1990] 1 SCR 1075, at 1091.
35
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Sparrow Aboriginal rights that have been extinguished before 1982 will not be revived and
will not gain the protection of section 35. Thus, section 35 protects those Aboriginal rights
and treaty rights that have not been extinguished prior to 1982.
Regulation of Aboriginal Rights
Regulation of a right is not a partial extinguishment of that right according to the Canadian
Supreme Court in R v Sparrow.37 The Sparrow court found that regulation by a series of
legislative controls and a system of discretionary licensing systems which restricted the
Aboriginal right to fish did not amount to extinguishment of that right, as there was no “clear
and plain intention” to extinguish the right.
Affirmation in a contemporary form of right
The Sparrow court said the phrase “existing aboriginal rights” must be interpreted flexibly so
as to permit the evolution of these rights over time.38 Thus the Court recognised that rights
can evolve to incorporate modern technology and modern commercial forms of business.
“Recognised and Affirmed”
The Canadian Supreme Court in R v Sparrow39 considered that the phrase “recognised and
affirmed” should be construed to give a generous liberal interpretation in accordance with
the principles that govern the interpretation of Indian treaties and statutes. This requires that
“treaties and statutes relating to Indians should be liberally construed and doubtful
expressions resolved in favour of Indians”.40 Additionally, the Sparrow Court considered
that the phrase should incorporate the fiduciary responsibility that the Canadian Government
has to act in a fiduciary capacity with respect to Aboriginal peoples of Canada. The
Canadian Supreme Court concluded that section 35 must be interpreted as a constitutional
guarantee of Aboriginal and treaty rights and any legislation that would abrogate the
guaranteed rights would be invalid.41 However, the Court also found that Aboriginal rights
which are recognised and affirmed by section 35 of the Constitution Act, 1982 are not
37
R v Sparrow [1990] 1 SCR 1075.
R v Sparrow [1990] 1 SCR 1075 at 1093.
39
R v Sparrow [1990] 1 SCR 1075, at 1091.
40
Nowegijick v The Queen [1983] 1 SCR 29 at 36.
41
R v Sparrow [1990] 1 SCR 1075, at 1091.
38
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absolute.42 The Sparrow Court found that while it is possible for legislation to infringe
section 35 constitutionally protected rights, legislative infringements will be invalid unless
the legislation meets the required standard of justification.
Infringement of Aboriginal title and rights
Any legislative infringements or impairments of Aboriginal rights must be justified under the
Sparrow test.43 The Sparrow test of justification has two parts. It requires that the government
show first that the infringement is "in furtherance of a legislative objective that is compelling
and substantial", and secondly that the infringement is "consistent with the special fiduciary
relationship between the Crown and the Aboriginal peoples".44 The Sparrow decision has
been confirmed, although slightly modified, in later decisions.45
Extinguishment of Aboriginal rights
Parliament’s power to extinguish legislatively existed only prior to the enactment of the
Constitution Act 1982, as after that date it is not possible for Parliament to extinguish
constitutionally protected rights.46 However, extinguishment of Aboriginal title can occur in a
limited range of circumstances. These include voluntary surrender to the Crown,47
constitutional amendment,48 or legislation enacted by the federal Parliament prior to 1982.49
In Sparrow a standard for the pre-1982 extinguishment of Aboriginal rights (including
Aboriginal title) was established.50 That standard requires that a ‘clear and plain intent’ to
extinguish be shown.
42
In R v Sparrow [1990] 1 SCR 1075 at 1109.
Sparrow [1990] 1 SCR 1075 at 1109 -1119.
44
Sparrow [1990] 1 SCR 1075 at 1113-1119.
45
See R v Gladstone [1996] 2 SCR 723; R v Adams (1996) 3 SCR 101; R v Cote [1996] 1 SCR 139; R v Nikal
[1996] 1 SCR 103; R v Marshall [1999] 3 SCR 456; R v Marshall (No 2) [1999] 3 SCR 533.
46
However, this may not be absolutely certain due to language in Sparrow on duty to compensate if
governments extinguish or expropriate Aboriginal title. See Sparrow [1990] 1 SCR 1075 at 1080.
47
Ontario (Attorney General) v Bear Island Foundation [1985] 1 CNLR 1 affirmed by the Supreme Court on
this point. See Bear Island Foundation v Ontario (Attorney General) [1991] 3 CNLR 79.
48
R v Horseman [1990] 1 SCR 901.
49
Sparrow [1990] 1 SCR 1075.
50
Sparrow [1990] 1 SCR 1073 at 1099.
43
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4. How would a provision, similar to the Canadian section 35, be adapted for the
Australian Constitution?
Indigenous Land Rights in Australia and Canada - Context
In considering whether to adopt a constitutional provision similar to section 35 of the
Canadian Constitution, 1982, the different historical and legal contexts of Indigenous rights
in the two jurisdictions must be taken into account. In Australia, unlike Canada, no treaties
were signed with the traditional Indigenous land owners and initially no recognition was
given to the traditional rights of land ownership. Australia was settled on the basis that the
Indigenous peoples had no particular rights to their lands. Today, two forms of Indigenous
land tenure exist in Australia. These are statutory land rights under state and territory
legislation51 and the common law native title52 which is regulated by the Commonwealth
Native Title Act 1993 (Cth). No Canadian equivalent of the Australian statutory land rights
schemes exists. In Canada, legislation which governs the rights of Aboriginal treaty lands is
the Indian Act.53 No Australian equivalent to the reserve land system or the Indian Act exists.
The concepts of Aboriginal title (Canada) and native title (Australia) share a similar
fundamental jurisprudence that has diverged in certain judicial interpretations. In Australia,
the 1992 High Court recognised for the first time the rights of the traditional Indigenous
owners to their traditional lands in Mabo v State of Queensland (No2)54 In Canada in 1973,
the Supreme Court’s decision in Calder v Attorney General of British Columbia55 was the
first recognition that Aboriginal title existed at common law. Political reactions from
government to the above decisions also differed significantly in the two jurisdictions. The
Australian government’s enactment of federal legislation, the Native Title Act 1993, was
designed to provide a comprehensive regime in which native title would exist but this
51
See Aboriginal Land Rights (Northern Territory) Act (1976) (Cth), Aboriginal Land Rights Act (1983)
(NSW); Aboriginal Lands Act (1970) (Vic); Aboriginal Land Act (1991) (Qld); Torres Strait Islander Land Act
(1991) (Qld); Pitjantjatjara Land Rights Act (1981) (SA); Maralinga Tjarutja Land Rights Act (1984) (SA).
52
The concept of common law native title was recognised for the first time in 1992 by the Australian High
Court in Mabo v Queensland (No 2) (1992) 175 CLR 1.
53
RSC 1985 c 1-5.
54 (1992) 175 CLR 1 (hereinafter Mabo).
55
[1973] S.C.R. 313.
13
legislation is not constitutionally entrenched and is vulnerable to amendment by
government.56 In Canada, the response was not a legislative one but rather the establishment
of a comprehensive claims policy of settlement of outstanding Indigenous land claims.
Since 1973 a series of comprehensive claims has been negotiated with Aboriginal peoples
and governments57 In Australia, the Native Title Act 1993 promotes the status of Indigenous
Land Use Agreements (ILUAs).58 Indigenous Land Use Agreements under the Australian
Native Title Act 1993 differ significantly from comprehensive land claims in Canada in that
ILUAs can be made between private parties with no government/Crown involvement and that
the terms of an ILUA may not necessarily be publically available. It is necessary to be
mindful of the differences between the two jurisdictions when considering the inclusion in
the Australian Constitution of a section similar to section 35 Canadian Constitution, 1982.
What might constitutional protection of land rights look like in the Australian context?
What would it mean for Indigenous lands in Australia to include a mirror provision to section
35 in the Australian Constitution? What would be the advantages and disadvantages of
including in the Australian Constitution such a section? What protection and advancement
would such a clause offer for Indigenous rights in relation to land in Australia? How would
such a clause be interpreted by Australian courts? What form might an Australian version of
section 35 take? These issues are discussed below.
For the purpose of discussion we will assume that as a starting point an Australian version of
section 35 might state:
“The existing Indigenous rights and treaty rights of the Indigenous peoples of
56
See for example, the extensive changes in the Native Title Amendment Act 1998.
Over twenty two comprehensive land claims and two self-government agreements have been completed in
Canada. Comprehensive Claims Agreement include The James Bay and Northern Quebec Agreement (1975),
The Nisga'a Final Agreement (1999), the Tsawwassen First Nation Final Agreement (2008) and The Maa-nulth
First Nations Final Agreement (in effect 2011).
58
See NTA Pt 2, Div 3, subdivs B, C, D, E, s 24BA. See generally Bartlett R, Native Title in Australia, Sydney:
Butterworths, 2004; Godden L and Dorset S, “The Contractual Status of Indigenous Land Use Agreements”
Land Rights, Laws: Issues of Native Title, NTRU, AIATSIS, Vol 2 Issues paper No 1, September 1999; See
generally Stephenson, Resource Development, supra.
57
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Australia are hereby recognized and affirmed.”
“Indigenous people(s) of Australia”59
This phrase could be defined to include “Aboriginal and Torres Strait Islander” peoples of
Australia. It would not appear necessary to include a refinement to this definition.
“Indigenous rights (and treaty rights?)”
An issue to consider in this context is whether only native title land rights should gain
constitutional protection or whether constitutional protection should be afforded to both
Indigenous statutory land rights (discussed above) as well as native title rights. If both types
of Indigenous land rights were to be included then this should be specifically mentioned.
Additionally, consideration should be given to specifically excluding from constitutional
protection the process of native title under the Native Title Act 1993. It would be difficult and
unwise to attempt to constitutionally protect the native title process under the Native Title Act
1993 given their complicated nature. It is submitted that the native title processes should be
specially excluded from constitutional protection. Rather, it is native title determinations
(under the Native Title Act) as made by the Federal Court that should receive constitutional
protection.
In the Australian context it is suggested that it would be appropriate to define precisely what
“treaty rights” should gain constitutional protection. While Indigenous Land Use Agreements
(ILUAs) made under the Native Title Act 1993 are often regarded as modern day treaties it
may be prudent to exclude such agreements from constitutional protection. The parties to
Australian ILUAs do not always comprise Indigenous peoples and government. ILUAs are
frequently made between private parties and the native title parties. Additionally, many of the
terms of such agreements are not subject to public scrutiny as ILUAs often contain
confidentiality clauses. Thus details of the terms of ILUAs are not always publicly disclosed.
Given such limitations regarding ILUAs it would not seem appropriate to afford such
agreements Constitutional protection.
However, where publically made treaties were
concluded between Indigenous Australians and Australian governments then such treaties
59
The question of whether to use “people” or “peoples” should be given consideration.
15
should be entitled to constitutional protection.
Should a section similar to section 35(3) in the Canadian Constitution be included to protect
future Indigenous Australian treaty rights by affording treaties constitutional protection?
Section 35(3) Canadian Constitution Act, 1982, provides:
For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by
way of land claims agreements or may be so acquired.
While Indigenous Land Use Agreements (ILUA) made under the Native Title Act 1993 (Cth)
should arguably be excluded in their current form it would seem appropriate that provision
should be made for future treaties between Indigenous parties and governments to be
afforded constitutional protection.60
“Existing”
As we have seen the Canadian Supreme Court in R v Sparrow61 interpreted the word
“existing” as meaning “unextinguished” accordingly providing protection only to those rights
that were in existence when a constitutional amendment comes into force. An Australian
amendment in these terms is likely to be similarly interpreted. Thus, a similar section (in the
Australian constitutional context) would afford constitutional protection only to those
Indigenous title or rights that were not extinguished prior to such an amendment coming into
force.
Additionally, regulation of a right is not a partial extinguishment of that right
according to the Canadian Supreme Court in R v Sparrow.62 This interpretation has also been
followed by Australian courts.63
“Recognised and Affirmed”
As discussed above the Canadian Supreme Court in Sparrow found that section 35 must be
interpreted as a constitutional guarantee of Aboriginal and treaty rights. 64 Although the extent
60
It is unclear whether Canadian principles of treaty interpretation, as laid down by the Supreme Court in
various cases, would be applicable to modern treaty agreements in the Australian context. See Nowegiick v The
Queen [1983] 1 SCR 29.
61
R v Sparrow [1990] 1 SCR 1075, at 1091.
62
R v Sparrow [1990] 1 SCR 1075.
63
See Yanner v Eaton (1999) 201 CLR 351 and Mabo v Queensland (No 2).
64
R v Sparrow [1990] 1 SCR 1075, at 1091.
16
of any fiduciary duty or trust obligation owed by the Crown to native title holders has yet to
be fully determined in Australia, the non-recognition of a fiduciary duty should not
necessarily lead to a substantially different interpretation.65 Arguably, even without a finding
that a fiduciary duty exists in Australia, the government in Australia would remain subject to
the principle of the “honour of the Crown”.66 In general terms it could be expected that
similar interpretations to those made by Canadian courts could be expected regarding a
similar provision if it were to be included in the Australian constitution.
Additionally, Indigenous rights which are constitutionally recognised and affirmed in the
Australian context may also be interpreted as rights that are not absolute rights. See the
Canadian jurisprudence discussed above. Following the Sparrow Court’s interpretation, it is
likely that legislation could infringe constitutionally protected Indigenous rights where such
legislative infringement meets a required standard of justification. In the Australian context
issues may also arise as to whether justified infringements (for example, by State
governments) could breach the Racial Discrimination Act, 1975 (Cth) or even the provisions
in the future dealings regime in the Native Title Act 1992 (Cth). These issues would require
further consideration.
Extinguishment of Aboriginal rights
Currently in Australia, extinguishment of native title is subject to the Commonwealth
Constitution section 51 (xxxi), which requires that Commonwealth laws regarding the
acquisition of property provide “just terms” compensation. In addition, a restriction exists
regarding State’s powers of extinguishment in that State laws must be consistent with valid
Commonwealth laws. Section 109 of the Commonwealth Constitution would render State
legislation invalid in the event of inconsistency. Inconsistency would include inconsistency
with the Racial Discrimination Act 1975 (Cth) and with the Native Title Act 1993 (Cth).
Therefore, any attempt by a State or Territory to extinguish or impair native title is subject to
both the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth).67
65
See Thorpe v Commonwealth [No3] (1997) 71 ALJR per Kirby J and Bodney v Western Australia Airports
Corporation Pty Ltd (2000) 109 FCR 178 at [66].
66
Arguably, the honour of the Crown could be found to apply in Australian jurisprudence as it is based in
English law.
67
Unlike the position in Canada, both State and Commonwealth governments can potentially extinguish, impair
17
Accordingly, certain restrictions have effectively been placed on State and Territory
governments regarding the extinguishment of Indigenous interests in lands. The
Commonwealth government is able to extinguish native title rights (subject only to the ‘just
terms’ compensation requirement in s 51(xxxi) of the Constitution). Certainly, the inclusion
of a constitutional guarantee of “just terms” compensation for any extinguishment that is
undertaken by States and Territories would offer a high level of protection for Australian
Indigenous land rights. State Parliaments are currently not subject to any constitutional
requirement to provide “just terms” compensation for compulsory property acquisition.68
Clearly constitutionally protected rights offer greater safeguards to Indigenous lands than
legislatively protected rights. Therefore the inclusion of a ‘section 35 type provision’ would
constitutionally protect Indigenous title to lands in Australia and would certainly ‘raise the
bar’ regarding future extinguishment of Indigenous rights and no longer would a government
be able to “roll back” the Racial Discrimination Act to allow dealings which extinguished the
Indigenous title or rights to lands. Extinguishment of Indigenous title to land (after the
enactment of such a provision) would occur in a very limited range of circumstances such as
voluntary surrender to the Crown or a constitutional amendment.
5. Mechanisms for on-going discussion of Indigenous rights and the Constitution
One lesson that is clear from the Canadian constitution is that a clause similar to section 35.1
Constitution Act, 1982, should be included in the Australian Constitution (whichever form of
amendment is ultimately proposed for constitutional change in Australia). Section 35.1
requires that prior to any future constitutional amendments to the provisions of the
Constitution which deal directly with Indigenous peoples, a constitutional conference,
involving participation by representatives of the Indigenous peoples must be held.69 It is
or regulate native title in Australia subject to the limitations discussed above.
68
See Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; Griffiths v Minister for Lands and
Environment (NT) (2008) 235 CLR 232; Wurridjal v Commonwealth [2009] HCA 2. See Brennan, S,
“Regulatory Takings and Acquisitions under State Law: Issues in the Compulsory Acquisition of Native Title on
Just Terms”, Constitutional Reform Workshop, University of New South Wales, July 2011.
69
Section 35.1 provides: The government of Canada and the provincial governments are committed to the
principle that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to
section 25 of this Act or to this Part,
18
submitted that such a clause, that allows for additional constitutional meetings between
government and Indigenous Australians (where a Constitutional amendment is made in
Australia) should be included to review the progress of any such amendments. Such a clause
could be modelled on s 35.1 of the Canadian Constitution. This view would appear to be
endorsed by the Law Council of Australia.70
8. Conclusion
Section 35 of the Canadian Constitution Act, 1982, is certainly a model that should be
considered in the current debate as one that could afford recognition and guarantee
constitutional protection for Indigenous rights and title to land in Australia in the future.
Section 35 has been judicially reviewed, interpreted and tested by the Canadian Supreme
Court, albeit in a Canadian context. The section 35 Constitution Act, 1982, model could with
some modification, as suggested above, be adapted to the Australian context to offer
Indigenous title to lands protection and recognition.
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment,
composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by
the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to
participate in the discussions on that item.
70
See Law Council of Australia “Constitutional Recognition of Indigenous Australians: Discussion Paper”
2011 at 11. The Law Council endorsed the earlier section, s 37 Constitution Act, 1982, (since repealed) which
mandated the holding of First Ministers Conferences regarding section 35. The holding of a Constitutional
Conference in section 37 was the basis of the amending formulae for section 35. Now see s 35.1.