Monday, 30 January 2012

The Corroboree for Sovereignty, the Treaty of Waitangi and Unresolved Questions in International Law

There has been a great deal in the news about Australia Day—26 January—and the protests by the Aboriginal Peoples. In the swirl of these events, other long-standing protests have been overlooked. These other groups of protestors raise claims about sovereignty, the need for treaties, and for re-examining the relationship between the Aboriginals and the government. It is true as well that there is a proposed change to the Australian Constitution, which has been discussed in the blog post by Lucas, but it does not address the deep-seated and persistent issues that are raised by these other protests.

This article here from the Canberra Times notes two other protests, the Corroboree for Sovereignty and a 40 year long tent embassy:
“The three-day Corroboree for Sovereignty, which will run until tomorrow, is being timed to coincide with the 40th anniversary of the Aboriginal tent embassy's establishment in Canberra.”

More information on the Tent Embassy and the Corroboree for Sovereignty can be found at this link. One of the issues put forward is the demand for a treaty between the Australian government and the Aboriginal Peoples. Australia stands in contrast to its near-ish neighbour, New Zealand, in respect of how the relationship between the indigenous peoples and European colonisers was shaped. Australia saw the development of the doctrine of terra nullius, translating literally to “empty land.” In other words, the land was treated as if no one was there—at least no one that the colonisers wanted to or felt obliged to acknowledge. New Zealand, on the other hand, has the Treaty of Waitangi (here is a link to information on the treaty) that governs the relationships between the indigenous peoples of New Zealand and the government. The Treaty is recognised and in effect today. In 1975, an Act was passed that established the Waitangi Tribunal ( link to legislation here).

As explained on the Tribunal’s website,, “The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Maori relating to acts or omissions of the Crown that breach the promises made in the Treaty of Waitangi.” In respect of claims made to the Tribunal, it “ has to decide whether, on the balance of probabilities, that claim is well founded. Where the Tribunal finds that such is the case, it may recommend to the Crown means by which the Crown can compensate the claimants, remove the prejudice, or prevent similar prejudice happening to others in the future.”

This is an important mechanism for the recognition and enforcement of Treaty rights—something that is unique in the landscape of treaty rights, sovereignty claims and relationships between indigenous peoples and governments. The UN Declaration on the Rights of Indigenous Peoples provides for the recognition of treaties in Article 37,

“Article 37
1. Indigenous peoples have the right to the recognition, observance
and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other constructive
2. Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.”
But the article and the Declaration are silent on how and where these treaties are to be enforced. Are these a matter of international or domestic jurisdiction? And where are indigenous peoples to go with claims of sovereignty—such as those raised by the Corroboree for Sovereignty—and demands for treaties where none currently exist? If the state is unwilling or its responses deemed inadequate, are there grounds for some sort of international claim? And if so, on what basis and where? These and many other questions rise to the fore when considering the claims of the Corroboree for Sovereignty, and the contrasts with treaty arrangements in New Zealand. Whilst many gains have been made in international law for the recognition of the rights of indigenous peoples, many other questions remain unresolved and unanswered.

Written by Sarah Sargent.

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