Professor Brad Morse

Faculty of Law, University of Ottawa

"Is the Common Law still relevant for Indigenous Australians? A Canadian perspective"

Castan Centre for Human Rights Law public lecture held on 16 October 2007 at the Monash University Law Chambers, Melbourne.  Streamed version (uses Real Player)

Well I obviously have to thank Melissa for the introduction, the Castan Centre for the invitation, the opportunity to be here, all of you coming out on a blustery, miserable  evening, after a long work day for all of you I’m sure.  To in part demonstrate that actually I have been here before, I have my official Commonwealth Law Conference briefcase here, that was the last time I was here four years ago; but as Melissa has indicated, I guess I have been coming to Australia over the past 25 years and I think this is my 11^th visit to Australia in that time. Passport control keeps letting me in the country so I’m happy to keep comin, but if there is anyone in the audience here who want to send them a word in that regard I will understand. Obviously, of course, I want to acknowledge the traditional owners of this country. 

One of the reasons I keep coming back of course is that this is a marvellous country and it’s easy, especially for Canadians, to come here and love Australia, but also in particular I think our two countries are perhaps the most similar in the common law realm in the English speaking world.  While you naturally have some tendency to look across the Tasman to New Zealand as close cousins and trading relations and with your free trade arrangement, and we have a natural tendency to look across our big long and still undefended (although progressively more secure) border with the United States, I have suggested in fact that Canada and Australia really are the two countries with the most in common. Whilst we do have some differences, we also have a huge amount of things in common. We’re both very large countries in terms of our size and our economies, while at the same time have been very sparsely settled, with a relatively small population overall (ours is slightly larger). Both countries have this habit of living along a relatively narrow ribbon of territory.  In our case it is along the Canada-US border, the overwhelming majority of Canadians are within 100 kms of the US border; in your case it is particularly along the east coast and coastal areas in general. 

We both, of course, have constitutions that are similar in many ways, as we’re both Federations in this regard. While we do have some key differences, such as in our case the Federal government has the residual power rather than the states; and since 1982 we’ve had entrenched the Canadian Charter of Rights and Freedoms and we’ve had entrenched the express  recognition of aboriginal treaty rights. Of course, we have always had, since the early days of colonisation, a particularly distinct relationship between the Crown and Aboriginal peoples that has been largely based on treaties and peaceful relations. This Canadian aspect may differ but still in many ways our whole structure of federalism and respect for rule of law and obviously a common common law system are very similar.

We’re both multicultural nations that did not see ourselves in that way for a long time but are now coming to grips with that fact. Both of us are countries that are settled despite an indigenous population that were owners of the land and again, and in large part, settled through ignoring their presence. We both have a similar pattern of immigration stemming originally from Europe, and then from Asia, and then from the rest of the world. We both have an experience of stolen generations - in your context and our context slightly different in terms of Indian residential schools - but it is similar phenomenon of the removal of children at a very early ages from their families and communities with an objective of assimilation and absorption in the general society. As framed by one of our Deputy Superintendent Generals of Indian Affairs, who is in fact one of the foremost Canadian poets of his era, Duncan Campbell-Scott, the objective was ‘to take the Indian out of the Indians.’ 

We also have a similar experience even in terms of the geographic colonisation of both countries, with each being colonised from the east with Indigenous populations being moved westward and being pushed northwards  Both nations have had objectives to move towards isolation, then assimilation, then integration, then into somewhat grudging recognition of legal difference.

Our Prime Ministers even regard themselves as close political friends, at least our respective current Prime Ministers. You are of course in an election campaign that may change his status, and in our case we have a minority government so that may change as well at some stage in the near future. Both of our countries were active opponents in the final stages of the United Nations Declaration on the Rights of Indigenous Peoples. In our case that relected a significant transformation in our position and many would like to attribute the influence of Prime Minister John Howard as one of the factors that caused the Canadian government to switch positions. Both of our governments, at least again our current governments, oppose the Kyoto Accord on Climate Change, although in our case our former government signed the Accord an then did very little to implement it, but now both oppose it.

So we have a huge number of similarities between our respective countries. What I wanted to focus on this evening in particular was perhaps to explore some of the differences and what the implications of that might be.  One of the first reasons as to why I came to Australia the first time in 1982 was with a bit of a simple question; and that was why really there was no aboriginal title recognition in Australia.  I was aware of why there was no treaty, as I had some research experience on that history, but I was curious really about the question as to why aboriginal title had never been recognised. Related to that of course was the subsidiary question of asking why the Australian legal community seemed so readily to accept the Gove decision of 1971 from Mr Justice Blackburn as having settled the law that there was no aboriginal title in Australia, especially in light of the fact that Blackburn J had relied upon Canadian court decisions in Calder vs Attorney General Canada. At the time the decision was rendered in the Gove Case, the Supreme Court of British Columbia and the Court of Appeal had both rejected the continued presence of aboriginal title in the Canadian common law.  After the Gove decision, the Supreme Court of Canada reversed the law in that regard.  We returned to the position, that many might have  suggested reflected what had been the historic legal position, that aboriginal title was part of the common law. Our Supreme Court of Canada in the Calder case, even though its strict decision was to deny the appeal, all the judges who spoke to this issue made it clear that aboriginal title was and has always been part of the common law in Canada. Whether or not it was still present in relation to the Nisga’a Nation in British Columbia, was an issue of disagreement within the bench on a 3-3 basis, but the fact that aboriginal title was part of the common law was not in dispute. 

The question or comment that I was asking at the time in encountering practitioners, both barristers and solicitors, and legal academics in Australia in 1982-83 was to provide me with another example of a situation in Australian law where a decision in the Northern Territory Supreme Court had been viewed as having settled the law throughout  Australia on any point of law.  I can report that no one could identify a single example for me in that regard, although I did manage to spark some vigorous debates about whether or not the decision was an inappropriate one.  Not all of the lawyers that I met or legal academics at that time accepted the Milirrpum v. Nabalco (Gove Land Rights) decision as being a proper statement of the law in Australia. Bryan Keon-Cohen, who I’d met before and is one of the people here in the audience today, amongst some others that I had the good fortune in those days of talking to was Greg McIntyre, when he was in Queensland as a solicitor just starting on the Mabo case. . 

In this particular trip in 2007, I’m trying in some sense to come back to that question, but now in a different context.  With the backdrop now of 14 years of experience with the Native Title Act, and the natural tendency I think by the legal and indigenous community to focus upon that statue and its mechanisms, as what we would say is the main game in town, to use a Canadian expression, regarding native title and indigenous land use agreements - but is it the only avenue that is open? Is the common law in fact still relevant in Australia? To some extent, which I think it is, is the Canadian experience in this regard of some relevance to Australia?

Let me try and make the point here, through a variety of different contexts, on the way in which I think the common law is still a relevant aspect in Australian law. Perhaps, despite the importance and clear dominance of the Native Title Act, the common law should be considered a little more closely and actively, particularly by members of the legal community., And in looking at the question, one could zero in on the specifics of native title verses common law aboriginal title, or native title as the High Court in Mabo framed it. 

It seems to me that there are a variety of circumstances where this issue may in fact still be a live and practically relevant one to some degree in Australia; one of which is in the context when one is looking at compensation claims in relation to events that occurred prior to 1975, that is, prior to the advent of the Racial Discrimination Act. The thrust of the Native Title Act of course clearly is to validate acts that occurred prior to 1975 and then create a mechanism to deal with ones occurring  subsequently. But in generating the validating of this wealth transfer that has occurred from 1975 to 1994, the NTA creates rights for compensation for post 1975 actions. It seems to me that there is still an opportunity to argue, albeit with limitation issues to address, about governmental acts that have extinguished aboriginal or native title, in the context of those government actions having occurred prior to 1975 such that there is no room to pursue compensation claim under the Native Title Act itself. Therefore, in such situations the only avenue available would be pursuing them in the context of the common law, something I will come back to a little bit later. 

Another obvious circumstance relevant particularly to this part of the country is what if the Native Title Act tests for native title cannot be met, such as in the Yorta Yorta case? This particularly might arise in the context where the inability to meet the test is because of governmental actions that have occurred over time either from the dispossession of the people from the territory or the transformation and partial destruction of the traditional society such that it is impossible to prove that traditional laws and customs are still functional. Do these circumstances give rise to a distinct cause of action at common law for those losses? Or in another somewhat related context, what if there is no native title that can be proven but there is still a willingness to negotiate an indigenous land use agreement?  My understanding is, for example, that the Yorta Yorta people have successfully negotiated such an agreement, however, because there has been a determination by the High Court that they have no native title it is impossible to register that agreement under the Native Title Act. An effort was made to register the ILUA but the Registrar had to decline registration because of course there was a determination that there is no native title; therefore you can’t register it under the Act.  What then is the status of the agreement? How does one seek to enforce it? It seems to me again one turns to the common law, including equity of course, to enforce the ILUA as a contract through equitable remedies. 

Another interesting example, which I wasn’t aware of until recently, is in terms of the position of non-Australians who may wish to assert interests in relation to Australian territory. This has arisen in the context of Papuans seeking to assert their interests as traditional owners as a result of the Torres Strait Island regional claim. Given the way in which the boundaries between Australia and Papua New Guinea were negotiated through the treaty and the independence of PNG, it puts the Australian border what we in Canada would say as being within spitting distance of PNG, with the Islands that are really off the coast of PNG being part of Australia. Thus, the islands and sea area that are used actively by coastal Papuans is part of Australia.  They would assert an interest as continuing traditional users of that territory.  They are unable to assert such interests in their own right under the Native Title Act because they’re not Australian citizens. This matter has in fact come before Mr Justice French in Akiba v Queensland in August of last year and before the full Federal Court in July of this year in Gamogab v Akiba. It seems clear that a Federal Court judge does have discretion to add non-Australians as parties to native title applications in which the nature of their interest that they are asserting now is really a common law interest rather than a NTA statutory interest in relation to that territory. 

Similarly it seems to me that there may be circumstances in which a non-claimant applicant brings forth the application under the Native Title Act in relation to future acts.  If there is no response from traditional owners, then of course that application can proceed. But what if one were to have circumstances in which the Crown was aware of who the traditional owners are and took no action to ensure that they were made aware of the application? That is, the Crown  took no action to assist or bring to their attention the implications of their silence in the face of such an application, might that give rise to a cause of action against the government concerned by those traditional owners?

I’ve also been made aware of the situation, for example in Queensland, which I think will be replicated in some other states’ general land legislation dealing with unallocated state land, in which there is a recognition of the capacity for priority status for leases or deeds of grant of land to be issued in relation to unallocated state land in circumstances where people have prior interests in the property in question. The language in the Queensland legislation is nice and general in this regard, so what then are the prior interests that one might have in the land?  It seems to me again that the nature of that prior interest one could include an aboriginal title claim that would qualify under the priority criteria so as to obtain the allocation without going to competition.

It further seems to me that the contents of and NTA rights that may be exercised would be within common law native title, including determining its allocation and management by traditional owners, or amongst the traditional owners and potentially through a broader indigenous community.  The use of the land by those traditional owners is sourced in the traditional laws and customs that are internal  to the people concerned.  The Native Title Act requires a proof of the existence of those traditional laws and customs as an eligibility criteria vis a vis the determination of native title aspect, but it doesn’t really preclude the nature of those traditional laws and customs being exercised and being internally controlled. Nor does it seem to me to preclude the common law recognising the exercise of those allocations or controls so perhaps that may be another example of the continuing relevance of the common law today in this regard. Even if this significance  was not followed in Ward v Western Australia in relation to the Native Title Act aspect, it still may leave open a number of these issues in terms of their capacity as common law actions. 

Stolen Generations, which I mentioned earlier, I think may be another example, although common law actions in the Joy Williams case, and Cubillo and Gunner v Commonwealth were unsuccessful.  The recent Trevorrow decision from South Australia of course perhaps raises some new hope or opportunities in this regard.It leads to, I think, the situation which the experience in Canada under the Indian Residential Schools might be interesting and somewhat in contrast to the way this issue has played out to date in Australia, although perhaps that may change here in the future.  In our particular situation, all of these cases have relied upon common law principles.  There have also been criminal prosecutions and convictions in the case of some of the physical and sexual abuse that occurred in relation to abusers that are still alive and enable to be prosecuted. In addition to the normal application of the criminal law, there have  been many civil actions brought and all of those were being brought in the context of the standard common law causes of action.  Some of the early cases were met with some resistance by he federal government and churches but resulted in some initial settlements.  The Government of Canada later gave a partial recognition in January 1998.  In our case, we didn’t have the difficulty about saying sorry, our problem was accepting responsibility for what had happened. As a result of some of those initial case,s a flood of litigation followed with well over 12,000 cases filed by individual Indian Residential School survivors. 

As a result of that litigation flood, it led to a certain level of panic among Chief Justices across the country.  They were looking at a flood of cases in terms of the capacity of the judicial system simply to manage such a volume of cases. This led to a willingness to see these cases framed and become class actions in nine separate jurisdictions across Canada.  It led then to negotiations with a retired Justice of the Supreme Court of Canada appointed by the federal government to try and mediate in that regard. His efforts helped to lead to the negotiation of a comprehensive out-of-court settlement agreement between the government of Canada, the four main church who were involved in managing these residential schools, like many of the churches managing missions in Australia, and representatives of the survivors, Thisat out-of-court settlement has been confirmed by the superior courts within those nine jurisdictions and has now been confirmed by the survivors themselves in August of this year.

To give you a sense as  to what the potential magnitude this is, at least in the Canadian context, let me summarize that settlement. It involves a common experience payment that, as I understand it, draws some parallels to a recent scheme that is developed by the Queensland government in relation to children who went through child care experiences whether indigenous or not. The common experience payment component involves the payment to each survivor with an initial payment for the first year in school of $10,000CDN and then $3,000 for each additional year that they were in residential schools.  As well, an individual assessment program exists to look at the particular circumstances of those individuals (if they wish to file a claim in this regard) for any experiences of abuse that they may have suffered and loss of income that may be derived as a result of the psychological impact or the ineffective education that they received. This can lead to payments of up to $400,000 per person, which starts to be along the lines of the Trevorrow decision of $500,000Aus. 

A Truth and Reconciliation Commission (which I think will be coming out to Australia at some stage) will be formally established with the appointment of three Commissioners very shortly. There is a lot of interest in the Australian experience by the interim executive director of that office and some of it’s staff.  That Commission of three commissioners will have a $60M budget and five year mandate to get the truth out so as to do somewhat like the Human Rights and Equal Opportunity Commission did with the Bringing Them Home report a decade ago, but even on a much more expansive level.  I’m anticipating a larger number of people participating both through community events and national events in that regard and with funds made available in that regard as well. Further funds for the expanding the mandate and capacity of the Aboriginal Healing Foundation are also included. Thus, the settlement, in Canadian dollar terms, is estimated to be somewhere in the order of four to five billion and still it is subject to some criticism for not having gone far enough to benefit subsequent generations suffering continuing effects.. 

I think the thrust of my comments in this regard tonight though is that all of those elements in the Canadian context and in the Trevorrow situation in Australia are still really looking to the common law to pursue a remedy. 

The third area where the common law has particularly arisen is in the context of fiduciary relationships and how that may lead to fiduciary duties.  You’ve had some litigation in this regard.  It was an element in the Mabo case and Mr Justice Toohey did recognise that, speaking as a judge alone.  Justices Dean and Gauldron indicated that a wrongful extinguishment could lead to the possibility of compensation claims with equitable remedies available, and interestingly framed as including the possibility of a constructive trust, which of course is often used in the context of fiduciary breaches.  Mr Justice Brennan indicated that a surrender of title in terms of which there is an aboriginal expectation that such a surrender would lead to a grant of a tenure by the Crown could give rise to a fiduciary duty on the Crown to actually fulfil that expectation.  As I read the Wik decision it also to some extent leaves this matter open.  Mr Justice Kirby in Thorpe v Commonwealth (No 3) (1997) 144 ALR 677, again on his own, does speak clearly to this question of, and to quote him: “whether a fiduciary duty is owed by the Crown to the indigenous peoples of Australia remains an open question” (at 688) so it seems to me this is still an open question. 

What might the recognition of fiduciary relationships and duties mean? The Canadian experience might be of some interest in this regard.  Another Canadian  decision was cited in Mabo in the High Court, that is, the Supreme Court of Canada’s Guerin decision from 1984; in which the the ultimate majority of this Court confirmed that the Crown’s position was not really as trustee but was a fiduciary. That is, it derives from the Crown unilateral assertions of sovereignty over the territory, coupled with the Crown’s assertion of an ownership of the underlying title to the land, coupled with the Crown also imposing itself between the indigenous population in Canada and the rest of the world. By virtue of the Crown making its assertion of sovereignty and title and precluding the capacity of indigenous people in Canada to deal privately, such as with the Batman treaty being voided here in Victoria, these circumstances create the situation in which a fiduciary relationship is formed. In the Supreme Court of Canada’s view that meant the normal private law concepts of fiduciary relationship (where we have (1) someone who offers to take on a role to provide some assistance, orchestrate some particular skill or provide expertise [such as lawyers, accountants or financial advisors] for another party; (2) where the other party - the effective beneficiary - accepts that offer and empowers the first party - the fiduciary - to have the discretion to exercise some power that will effect the legal rights or interests of the beneficiary; and (3) thereby leaving the beneficiary vulnerable to the fiduciary’s exercise of that power) should apply to a significant degree. 

Now that kind of principle in 1984 speaks to a way to try and characterise or capture the relationship between the Crown (and in our context that is both the Federal Government and of the provinces as the Crown in this sense is indivisible although it operates distinctly and independently in its two roles as federal or provincial crown) and First Nations. This was a genuine effort by the court to try to capture and provide some structure to the nature of that relationship, a structuring that puts it in a legal framework from which, of course, particular fiduciary duties may arise. Duties will not necessarily always arise but they may arise from time to time where the Crown in relation to Aboriginal properties or interests is in a position of exercising that discretion or power in a way that can harm the interests of the beneficiary. This can, as in Guerin it did, give rise to damages or can give rise to other remedial orders to try and address the breach. The presence of that kind of characterisation has helped further to spur on quite a lot of the claim negotiations that are going on in Canada. 

On the other hand, one of the by-products [besides the fact that certainly the word “fiduciary” had to be looked up in lots of dictionaries by various and sundry people across the country and became one of the most common words that one could hear in political meetings of First Nations, organisations and chiefs for some years] was that it led lawyers to immediately throw in breach of fiduciary duty in every statement of claim on almost everything in the Aboriginal law  area. This strategy itself has sparked, of course, the government response frequently with the words ‘deny, deny, deny,’ that is the very nature of defence actions frequently in Canada. It further generated two other by-products. One of which was the government concluding that, ‘OK since we are a fiduciary in relation to beneficiaries that means we’ve got to proceed more cautiously and more carefully; we cannot be as flexible and creative in our policies as we once were for First Nations because as fiduciary we could be liable.’ Thus, it lead to a certain level of clamping down on flexibility, which was clearly not what the court expected, nor First Nations wanted. 

On the other hand, it also led to the courts themselves starting to become concerned about the degree to which breach of fiduciary duty was regularly being pleaded. The Supreme Court of Canada subsequently in the case of Wewayakum Indian Band had to clarify this and said there is an important difference between a fiduciary relationship, which can be an ongoing or permanent one and in this context it is, versus fiduciary duties.  Fiduciary duties, of course, are particular duties that flow from that relationship but arise only in particular circumstances.  The fact that someone is in a fiduciary relationship with a beneficiary does not mean that they may also have other relationships, such as his friends or as parent-child outside of the fiduciary responsibilities. The Court made clear that not every fiduciary relationship gives rise to a fiduciary duty and furthermore not every fiduciary duty is breached just because the beneficiary is dissatisfied with the outcome. Nevertheless, the potentiality for a breach has meant the Crown in particular seeks far more actively to obtain consent from the specific indigenous party to any action that is to occur.

 The fiduciary relationship principle has helped in promoting the development of somewhat more elaborate and more carefully designed methods of ensuring that consent has been expressed and that the appropriate parties have expressed consent, and in this case that generally is done by majority votes. It has also lead to some extent to the legal community in particular kind of stepping back and saying, ‘OK what are the particular duties that may have, that may arise in this circumstance and is there in fact anything that might actual breach them.’ 

The evolution in the Crown-Aboriginal fiduciary relationship doctrine has also lead to our courts articulating another way of characterising the relationship, and that is in terms of suggesting that when the Crown comes to dealing with Aboriginal peoples its honour is always at stake. This reflects a judicial attempt,, and in fact explicitly uses the phrasing the “honour of the Crown,” to try and describe an expectation not just on the Crown as fiduciary (to which there might be direct legal and equitable ramifications if its duties are breached) but rather to try and characterise now the relationship a little bit more broadly in terms of the kind of conduct that the Crown should be expected to adhere to even when not acting as a fiduciary. 

The challenge arises, for example, when the government is exercising its normal responsibility as the government of the province or government of the country as a whole and engaging in the kind of balancing act between what can potentially be different if not competing interests in advancing the goals of the population as a whole or those of Aboriginal communities. Our highest court has addressed this tension and framed the government’s role as one in which the honour of the Crown must be maintained. One of the specific duties that it has articulated to met that standard is a duty to consult on the part of the crown, and as somewhat of an alternative to the Native Title Act right to negotiate or RTN regime.  The Honour of the Crown standard, however, is framed more broadly.  It is not just in the context of land issues.  It is instead triggered whenever the government is considering a policy, a project or program or an event that might affect aboriginal or treaty rights.  Whenever that circumstance might arise that an Indigneous right might be affected, and the Crown is deemed to know some of those interests such as where we’ve got treaties or land claim settlements, and in other circumstances there is an obligation on the indigenous party to make their interests known to the Crown; but whenever such a circumstance arises, so that one could suggest there is a potential breach of an aboriginal interest, then there is a duty triggered on the Crown to consult. 

In assessing the scope of that duty, the function the court has articulated has two primary concerns.  One is to consider the magnitude of the potential for that project or proposal (such as a new pulp mill in Tasmania, approval of a new mine or a new pastoral lease, or the allocation of unallocated state land) to affect an aboriginal or treaty right. In this regard, the court has said that those interests can be merely asserted aboriginal interests and do not have to be already proven ones, as they merely need to be alleged to exist to require looking at the magnitude of the potential impact.  The second factor is to examine the strength of the asserted interest.  What is the prima facie strength of it? That is, it doesn’t have to be previously proven to the satisfaction of a court as existing, but it does have to be known or asserted by an Aboriginal party and court can then assess the degree to which these two factors interplay. In the case of a project that let’s say might be at the low end, such as a pulp mill that is quite a distance removed from a particular community, one could then suggest that the impact of that pulp mill might have limited effect on that particular community. The strength of their prima facie aboriginal or treaty right might also be less resulting in the activity level if you will on the Crown to consult in that regard being at the low end of the spectrum. The consultation, therefore, may simply be met by giving notice, giving information about what the project is and not much more than that.  On the other end of the scale though, if the potential is quite significant and if the asserted right is considered a strong claim, not yet proven and not yet before a court but nevertheless in which the documentary record that is available demonstrates that it is a strong prima facie claim, then the duty to consult is at a much higher level.

It is only through a careful good faith consideration that the extent of the duty can be determined. Exploring with care might lead to a major change in expectation, where for example the effluent from the pulp mill travels downstream and affects the water supply of that Aboriginal community even though it is quite some distance away from the millsite. Then the Crown’s obligation to consult increases.  It will require active consultation.  It will require a genuine attempt to accommodate the indigenous concerns in relation to the proposed initiative, whatever it might be, and that would give rise to tangible negotiations to try and accommodate those aboriginal concerns. At the end of the day, however, the Crown may be unable to reach agreement and may elect to proceed regardless, in which case the Aboriginal party may choose to sue if it believes that it does possess constitutionally protected aboriginal or treaty rights that are being negatively effected.

The final example I will offer in my attempt to persuade you that the common law is still relevant in Australia in the sphere of the unique legal position of Indigenous Australians concerns the recognition of customary law by the common law. While recent Commonwealth legislation may now bar the consideration of customary law elements in criminal sentencing decisions, which is still available in Canada under our Criminal Code, I believe indigenous law remains relevant here regarding family law (especially re marriages and adoptions), estates, and potentially as a head of damage in tort where there has been a loss of the capacity to fulfil customary cultural practices and compliance with customary laws and obligations. The NTA itself naturally recognizes customary law as relevant and as something recognizable by the common law through s. 223(1)(c). Therefore, there may be far more scope in this aspect than I have indicated here briefly that awaits the application of creative legal talent.

Let me close by thanking you for your kind attention. I hope that my comments may have been of some use and may have sparked a few questions, comments or challenges that we can now pursue in the time remaining to us this evening. Thank you all.