Kirsty Gover: A Retreat from Public Law’s Frontier? The Indigenous Challenge

As part of the launch of the volume The Frontiers of Public Law (Hart: 2020, Jason NE Varuhas and Shona Wilson Stark eds.) in November 2020, I was asked to reflect on the chapters in the book’s second thematic ‘frontier’, titled ‘Public Law and Indigenous Peoples.’ In one way or another, each of the four chapters I considered engaged a question of central importance in settler-states:  in a multi-people society, which public is public law responsible to?  In this post I attempt a synthesis of the chapters’ shared premises and challenges. 

Taken together the chapters call on settler public law (in Aotearoa New Zealand, Australia and Canada) to properly respond to and support Indigenous agency, and in particular, to respect the status of Indigenous communities as polities or bodies politic in their own right, with the authority to negotiate the terms of their relationship with settler governments.  In various idioms, all of the authors also see that a just response will require settler law, and perhaps especially settler public law, to give up its conceit of comprehensivity. In other words, a just response to the challenge posed by Indigenous publics would require settler public law to restrain its reach in matters that implicate the authority and governance of Indigenous polities. This deference might be understood as a jurisdictional deference to Indigenous public law, the body of laws by which Indigenous polities allocate and limit power within and between their communities.

I think perhaps for many people the  idea of a ‘frontier’ connotes progressive, forward movement rather than an end-point or limitation. Of course, ‘frontier’ has an additional set of connotations in settler states, notably an on-going history of frontier resistance and violence, taking place physically and spiritually on Indigenous land.  With respect to the intellectual frontier of this section of the book – ‘Public Law and Indigenous Peoples’, it could be said that each chapter calls on settler public law to develop itself in ways that facilitate its withdrawal from fields it improperly occupies.  Perhaps the organising idea of the ‘frontier’ in settler-Indigenous relations brings intellectual and physical metaphors together in a paradoxical way. Interventions and positive action within public law are required to effect its retreat, in order to make space for Indigenous authority.  This is a paradox familiar to practitioners and theorists of Indigenous law and self-governance, especially acutely felt in debates about ‘recognition’. Settler political philosopher Duncan Ivison describes the interface this way: 

Gaining political or legal recognition from the state, or from an international system of states, entails organizing yourself in light of certain regulative norms enforceable by the state. The paradox is that [reducing] the presence of the state in one sphere of social or political life requires that it be increased in others, acting at a distance.[1]

Aboriginal intellectual and activist Nayuka Gorrie puts it this way in her ‘Letter to White Australia’:

Recognition forces me to ask to be seen by you in a colonial system that I don’t want to legitimise. Fuck that.[2]

In line with the idea of action that facilitates inaction, almost all chapters in this section emphasise, in different ways, the necessity of public law inculcating the arts of restraint, humility, and deference in settler officials, along with an concomitant recognition of Indigenous expertise, authority and sovereignty. Taken together these chapters also remind us that public law is fundamentally concerned  with power, and perhaps especially with the conditioning of power. I am reminded of the call in Australia’s Uluru Statement from the Heart, for a Voice to Parliament, Makarrata and Truth-telling, to address the ‘torment of powerless’ experienced by Australian Aboriginal and Torres Strait Islanders, by enabling their law and sovereignty to co-exist with that of the Crown. The theme is a current and pressing one.

The chapters:

In the first chapter, Indigenous Rights, Judges and Judicial Review in New Zealand, the Hon. Justice Mathew Palmer of New Zealand’s High Court considers the role of the judicial branch in protecting Indigenous rights in Aotearoa New Zealand, providing a detailed analysis of  53 judicial review cases involving the 1840 Treaty of Waitangi. He explains that the modern re-interpretation of the Treaty, involving the Waitangi Tribunal, Parliament and the Courts, exemplifies constitutional dialogue.  While many grounds of judicial review on Treaty matters are argued in complex compositions, reasonableness looms large among those that are successful.  He concludes that in its emphasis on reasonableness and good faith, the emergent reinterpretation of the Treaty in public law ‘might have come to mirror the substance of judicial review law’ and that is likely because good process and reason are ‘after all, the essence of good relationships’.

In Coming to Terms with Communal, Land-related Decision-making by Aboriginal and/or Torres Strait Islander Peoples in a Public Law Context the Hon. Justice Debbie Mortimer of the Australian federal court offers a reflective account of the challenges she faced as judge in two judicial review cases decided in 2017 and 2018. Each case raised difficult questions about how a court should  approach the review or assessment of internal decision-making by traditional Indigenous peoples and communities. Justice Mortimer asks whether there may be ways that courts can ‘better empower Indigenous people to speak for themselves through evidence, rather than through non-Indigenous methods, such as expert evidence’, noting there is room for debate about the role of non-Indigenous interlocutors (such as anthropologists) in judicial review, and for consideration of how to afford greater recognition and support to decision-making methods that are dependent on traditional law and custom, and so often not properly reducible to majoritarianism. She calls on the courts to show leadership in these areas, noting that this is a core part of empowering Indigenous peoples to be in charge of their own decision-making processes (and I would add, their own law).

These comments are of special importance given the High Court’s 2020 decision in Love-Thoms v the Commonwealth. Instances of Australian settler judicial review of traditional law and custom have been few and far between. Investigations are limited for the most part to what are clearly questions of fact :  evidence of a body of traditional law and custom that existed ‘at sovereignty’ presented to provide the content of native title rights and interests, and as evidence of continuous connection to country, and continuous existence as a ‘society’. Once recognised, native title rights and interests become ‘tips of icebergs’, a tiny, but visible, part of the vast complexity of Indigenous law beneath the surface of the settler overlay.  The High Court’s decision in Love-Thoms however,means there will be more calls for judicial consideration of traditional law and custom, ones arguably not confined to evidence of fact. According to the High Court majority, persons claiming non-alien status on the basis of their Aboriginality must show that they are recognised as a member of a particular people, ‘by the elders or other persons enjoying traditional authority among those people.’[3] (The so-called Mabo (No 2) 3-part test). This  can require a court to investigate the basis of an elder’s traditional authority and the traditional law and custom that vests decision-making power in that person.[4] This is an example, along with the types of review discussed by Justice Mortimer, of instances in which Indigenous law ‘breaches the surface’ of Australian settler public and administrative law, in a way that arguably makes it cognisable to judges as law, rather than as a set of facts. Once cognisable it is also reviewable, for better or for worse, and it is as close as Australian settler law comes to recognising the status of traditional owners as self-governing, law-making polities. For the time-being it is the extent of ‘strong legal pluralism’ in Australia. It poses a formidable challenge for settler judges, as Justice Mortimer notes, but also offers opportunities for truly transformative jurisprudence. Judicial forbearance on matters that are internal to the community, or are the subject of negotiated agreement between settler and Indigenous governments, will be an essential component of this transformative potential.

Some glimpses of a just judicial method, engaging restraint, can be seen in native title jurisprudence.  When asked by the Northern Territory to remove ‘uncertainty’ from the membership clause of a native title determination, by confining its scope to biological descendants, the full court of appeal of the federal court inNorthern Territory of Australia v Alyawarr (2005) made the following observation:

The Northern Territory’s submissions would require the Court to descend to the fine detail of possible applications of traditional law or custom to a range of cases of non-descent based connection where an issue of recognition of membership may arise.  . . The [native title determination] involves an acceptance that the community of native title holders is a living society.  It is not consistent with the purposes of the NT Act, nor productive of any practical benefit to require that the laws and customs of indigenous society and the rights and interests arising under them be presented as some kind of organism in amber whose microanatomy is available for convenient inspection by non-indigenous authorities. 

Where treaties or other jurisdictional agreements have been concluded between settler governments and Indigenous peoples, the exigency of judicial forbearance as a justice-promoting method extends to the conduct of the political and diplomatic relationship itself.  Again the call to justice is premised on the agency and authority of Indigenous peoples qua polities. The Canadian Supreme Court for example, explained in First Nation of Nacho Nyak Dun v Yukon (2017), that:

In a judicial review concerning the implementation of modern treaties, a court should simply assess whether the challenged decision is legal, rather than closely supervise the conduct of the parties at each stage of the treaty relationship. Reconciliation often demands judicial forbearance. Courts should generally leave space for the parties to govern together and work out their differences.

Associate Professor Mary Liston of the University of British Columbia takes up some of these challenges in the Canadian context, in her chapter of The Frontiers of Public Law, entitled Representing Jurisdiction: Decolonising Administrative Law in a Multijural State. She explores the relationship in Canada between administrative law and Indigenous governance, asking whether this relationship can be structured in a way that ‘recognises and reinforces Indigenous law’.  This might be possible, she argues, if Canadian law, and especially Canadian judges, take account of what she calls ‘jurisprudential fences and walls’ and considers ‘where these  may need to be brought down – if they obstruct proper recognition of Indigenous decision-makers – or, conversely, be maintained where they justifiably protect Indigenous legal orders.’ Liston’s account is attentive to the power imbalance between Indigenous and settler governments, and the proper orientation and focus of settler judicial review in matters implicating that relationship:

The special role of administrative law is to check the power of the Crown and constrain both the structured and unstructured discretionary powers the Crown exercises in public law. 

Echoing the emphasis brought by Justice Palmer, Liston argues that in the review of Indigenous governance arrangements, ‘reasonableness should be the presumptive standard’ and in agreement with Justice Mortimer, she urges that  courts should work to ‘confirm Indigenous expertise over Indigenous norms’.

Finally, in Places as Persons: Creating a New Framework for Maori-Crown Relations, the chapter by Professors Jacinta Ruru and Andrew Geddis of New Zealand’s Otago University, the authors consider a recent relational innovation in New Zealand’s settler public law, the grant of legal personality to places, in part recognising of the status of these entities hold in tikanga Māori (Māori law).  To date legal personhood has been legislatively granted for Te Urewera (an area of forested high country), the Whanganui River, and Taranaki Maunga (Mount Taranaki). Ruru and Geddis argue that while it’s possible to see these innovations as largely concerned with environmental protection and the Rights of Nature, the better approach is to see them as reflective of the ways ‘in which Māori,  conceive of and relate to those places ’, as relatives and ancestors.  In this sense, they say, these innovations are profoundly constitutional ones. They help  move New Zealand public law towards a different way of thinking about land, one that will change the way these cherished places are thought of and treated by all New Zealanders.

Fittingly perhaps, since this chapter is the only one authored by an Indigenous contributor, the last word in these brief comments is drawn from the Ruru and Geddis conclusion.  They say that the innovations they describe, bringing Indigenous and settler laws together, ‘demonstrate[] the possibilities of public law acting as a bridge between worlds.’ If settler and Indigenous public law can enable the building of a bridge to connect settler and Indigenous law across the frontier between them, this would be an achievement that serves all. 

[1] D. Ivison, Postcolonial Liberalism (Cambridge University Press, Cambridge, 2002) p. 43.

[2]  Thanks to Lauren Pavli for bringing this article to my attention.

[3] Mabo v Queensland [No 2] (1992) 175 CLR 1, 70 (Brennan J), cited in Love-Thoms at [76] (Bell J).

[4] E.g. Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 702. For an elaboration on this point, see Michelle Foster and Kirsty Gover, ‘Determining Membership: Aboriginality and Alienage in the Australian High Court’ (2020) 31 Public Law Review 35.

Kirsty Gover is a Professor at Melbourne Law School, University of Melbourne

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s