We
must not make a scarecrow of the law,
Setting it up to fear [frighten] the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.
Measure for Measure, Act 2
scene 1.
On the New
Yorker web site (link
here), Amy Davidson Sorkin has an insightful and thought provoking analysis
of conservative US Supreme Court Justice Neil Gorsuch’s surprising perspective
on Native American rights. Her article is worth reading not just for the
profile of Justice Gorsuch and his jurisprudential record, but for the analysis
of the US Supreme Court’s recent decision in Arizona v. Navajo Nation, and the alternative interpretations of
the treaty commitments that were at the core of the arguments. As Davidson
Sorkin writes:
The case involved the
future division of the waters of the Colorado River—an issue of existential
concern to millions of people across seven Western states, including a hundred
and seventy thousand who live on the Navajo reservation.
Davidson Sorkin
ends her profile by referencing Elie Mystal in an article from The
Nation. Mystal who ‘after puzzling over Gorsuch’s lack of empathy for other
groups’ wrote that
‘Gorsuch is the staunchest defender of tribal sovereignty and Native American
rights perhaps in the history of the Supreme Court, and I choose to be thankful
for that’. Mystal goes on to elaborate on the rationale for Gorsuch’s support
of Indigenous rights, and the limits of that support, based on his view that
native rights were recognised in the US Constitution. Mystal quotes Gorsuch’s
dissent in a recent case to elucidate his thinking:
“Instead, the
Constitution’s text—and two centuries of history and precedent—establish that
Tribes enjoy a unique status in our law.” For Gorsuch, in other words, Tribal
nations are uniquely protected by a constitutional promise (often ignored) that
they will be left alone.
I strongly
recommend readers have a look at both these articles. Reading these two
articles led me to think more about a few issues of significance in Australia,
and how the experience in the US may provide lessons or comparative perspectives
of use to both policymakers and First Nations.
The first issue is the importance of water rights to Indigenous
peoples, its centrality to their cultural perspectives and being, and its
increasing commercialisation by governments struggling to regulate usage of a scarce
resource by mainstream commercial interests. The dilemma for Indigenous
interests is that the most obvious pathway to greater access to water, and to
the protections of water resources is to participate in its commercialisation.
This may suit some Indigenous groups, but is unlikely to suit all Indigenous
groups. There is a growing literature on Indigenous water rights in Australia
which confirms the existence of a complex and diverse policy agenda. My sense
however is that governments are yet to comprehensively and substantively
address the policy opportunities and challenges embedded in this policy agenda
(link
here).
The second issue relates to the increasing focus
emerging in Australian public discourse on Indigenous issues related to the
importance and potential of negotiated treaties. I won’t attempt to summarise
the myriad issues involved, but will instead make one simple point: the US
experience (confirmed in Arizona v Navajo
Nation) demonstrates beyond doubt that whatever their advantages and merits
(and they are potentially considerable), the propensity for governments, and
even the courts, to avoid, undermine and ignore even formal treaty commitments
is an existential risk both to the rights that are sought to be protected by
the treaties and to the treaties themselves. The best long term protection for Indigenous
citizenship and other rights is to progressively build and sustain deep support
in the wider community.
The third issue I was led to contemplate is the ongoing
role of the judiciary in Australia in driving substantive policy reform, and in
particular, the role of individual jurists who have an understanding of the
complexity of the policy challenges facing both the nation and Indigenous
citizens. To put it bluntly, it is arguable that the capabilities of governments
to drive policy reform has been progressively diminished and depleted over recent
decades, and perhaps as a result, the influence of the judiciary has expanded
to fill the vacuum.
However, it is
difficult to nominate a single Justice of the High Court who might be described
in terms akin to those used about Justice Gorsuch as the staunchest defender of
Indigenous rights in the history of the Court. In part, this is a result of a different
legal culture, less overtly political, and more grounded in a culture of reasoned
judicial impartiality (a feature which I am grateful for). Still, clearly a
number of Justices have made enormous contributions: Chief Justice Gerard Brennan
in his lead judgement on Mabo, Chief
Justice Robert French in expanding the extent of native title rights to
pastoral leases in Wik. Justice John Toohey
was in the majority in Mabo and Wik, and perhaps more importantly, made a major
contribution in his time as the first Aboriginal Land commissioner under the Aboriginal
Land rights (Northern Territory) act 1976. Interestingly, each of these
justices had serious involvement in Indigenous legal issues earlier in their
careers.
Yet it is the dissenting
contributions that have foreshadowed potential directions for the development
of the law that stand out for me. Justice Toohey’s judgment in Mabo (supported
by Justices Deane and Gaudron, but not by Justices Brennan, Mason and McHugh)
argued for the existence of a fiduciary duty by the Crown. In 1997 in Newcrest Mining v The Commonwealth, Michael
Kirby was one of the minority arguing that the 1969 case of Teori Tau (which held that the Commonwealth
was not obligated to pay just terms for the acquisition of property in a
Territory) should be over-ruled. In 2009, Wurridjal
V Commonwealth finally overturned Teori
Tau. In the 1996 case Hindmarsh Island
Bridge Case, Kirby’s lone dissent argued that while the race power in
section 51(26) of the Constitution permitted special laws for people on the
grounds of their race, it should not be read so as to discriminate adversely
against such people on that ground. Unfortunately, Australia continues to this
day to have a Constitution that allows the Parliament to make laws that
adversely discriminate against the members of a race.
The fourth issue worth reflecting on in the comparison
of the US and Australian legal systems is the shared preparedness of both
systems to contextualise contemporary issues with detailed historical analysis
and research. Clearly in the US context, Gorsuch is highly adept at weaving historical
narratives into his reasoning. So too has the High Court in Australia been
prepared to build its legal decision making on detailed historical analysis of
the treatment of Indigenous citizens. This is also a feature of the land claim
process under the Aboriginal Land Rights
(Northern Territory) Act 1976, and under the Native Title Act 1993. As an aside, one might make a similar argument
for the under-appreciated role of anthropology in these far reaching legal
processes that are changing the institutional shape of the Australian nation.
One of the less
well understood positive implications of land rights legislation and the Native
Title Act has been their ongoing contribution to educating the judiciary and
the supporting cohorts of legal functionaries of the complexity of
intercultural engagement and the innate intelligence and functional integrity of
Indigenous cultural practices. Australia is a better place for those ongoing
processes.
28 June 2023
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