Treaties as Rules of Engagement: The Importance of Consultation Duties

Australian law is marked by some striking deficits. Relative to Canada and New Zealand, it is harder in Australia for Indigenous peoples to assert and defend their interests, and are fewer toeholds on which to base a claim or influence settler law and politics. The most prominent deficit is of course the absence of historic State-Indigenous treaties. In addition, we lack a federal legislative or constitutional bill of rights that could protect Indigenous rights (as peoples or as ethnic minorities), and Indigenous rights are not otherwise referenced in our Constitution.  Unlike the Canadian and New Zealand courts, Australian judges have not produced any common law qualifications on the exercise of state power over Indigenous peoples – such as the constitutional principle of the Honour of the Crown, and doctrines enforcing a state–Indigenous fiduciary relationship. Finally, we do not have reserved seats for Indigenous peoples, in the way that the New Zealand Parliament does. All of these features of Canadian and New Zealand law are important ‘counter-majoritarian’ mechanisms that reflect the special constitutional status of Indigenous peoples and ensure they are not continually out-voted by settler majorities on matters that directly affect them.

Most people are probably aware that Indigenous rights are less well-protected here than in our Commonwealth peer states. What is perhaps less well appreciated is that the  mechanisms mentioned above have a very practical and very important impact on the day-to-day conduct of state-Indigenous relationships, because they are the source of the government’s constitutional obligation to consult Indigenous peoples before making decisions that affect their interests.  Australian law does not require governments to consult Indigenous peoples, even when making laws that apply only to them. This is one reason why treaties are so important. In my view the duty to consult is not just a pro forma or symbolic obligation. It requires recognition of Indigenous peoples as polities, it requires due respect to be paid to their representative institutions and leaders, and the dialogue it sets up can transform the way settler public officials think about Indigenous interests. In short, a duty to consult can be transformative of the relationship in a real and tangible way. Treaties can be the vehicle for consultative obligations,  by setting out the ‘rules of engagement’, requiring proper processes to be followed when the relationship between the state and Indigenous peoples is implicated. The substantive guarantees in a treaty (land, compensation, law-making authority) are crucial, but obligations to behave properly in the relationship are just as important.  

Australian officials (and some judges) have a long-standing preoccupation with an idealised, politically undifferentiated Australian body politic, within which Indigenous peoples are represented, if they are at all, as racial minorities with no other constitutional or political status.  One need only refer to the High Court’s recent judgment in Love-Thoms v Commonwealth to see how deeply entrenched this thinking is.  Compelling officials to seek Indigenous views before making law for them can help to shift this perception. With a treaty to guide them, judges can nudge settler officials towards a more just and respectful relationships with their counter-parts in Indigenous polities. 

In New Zealand, for example, courts have explained that the Crown’s obligation to act ‘honourably, fairly and reasonably’ towards its Māori Treaty partner requires it ‘to make ‘informed decisions’, that show it has had ‘proper regard to the impact of the principles of the Treaty’, including by consulting Maori. As in Canada, the overarching principle is that governments must conduct themselves in a way consistent with ‘the Honour of the Crown’.  .  Also in New Zealand, Ministers submitting bills to Parliament must draw attention to any implications for the principles of the Treaty of Waitangi.  This ensures that proposed laws affecting Māori are debated by Māori Members of Parliament in both the general and the reserved Māori seats.  Since 1993 the number of Maori seats has been adjusted every five years so that it is proportionate to the number of voters who choose to be on the Māori electoral roll (typically just over half of Māori do so). The current cohort of Māori MPs includes seven elected to reserved Māori seats, and a further 22 Māori elected to general seats across the major political parties (a figure that corresponds to 24 per cent of the 120 MPs in the New Zealand Parliament, well above parity for the Māori population as a whole, which is at 15 per cent). Pakeha New Zealanders are  increasingly voting for Maori representatives, something I believe has emerged alongside treaty obligations to consult, reflecting a growing familiarity among Pakeha New Zealanders with Maori voices in public affairs, and with Maori ways of doing business. 

Canada has no reserved seats, but it does have Constitutional protection for native title and treaty rights (s 35 of the constitution), which also provides a basis for the common law constitutional principle of the ‘Honour of the Crown’. This principle includes the duty to consult Indigenous communities about measures that may impact on their claimed or proven interests.  The ‘Honour of the Crown’ is described by courts as a ‘constitutional imperative’, which applies to the Crown ‘in all of its dealings with indigenous peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties’.  It is  ‘an essential corollary to [an] honourable process of reconciliation’.  Because of section 35, native title and treaty rights can only be validly infringed by federal legislation if that law reflects an important public interest and upholds the Honour of the Crown including  the Crown’s obligation to consult. Even where there is no legislation in question, the government must consult with Indigenous peoples wherever their interests are at stake, even if those interests have not yet been recognised as ‘rights’ (ie if interests at stake are ‘unproven’).

In Australia however, as was affirmed by the High Court in its 2013 case of Maloney v The Queen(Maloney), Australian governments to impose uniquely burdensome measures on Indigenous peoples (in this case by criminalising the possession of alcohol in Queensland‘s Indigenous communities), and may do so in the absence of any obligation to consult those communities. This is paradoxical, and extremely unjust. The proposed Voice to Parliament and the commitment to treaty-making both propose to address this striking deficit, by providing a basis on which to compel law-makers to properly speak with and seek the views of Indigenous peoples on matters that are of special interest to them. A proper and just relationship demands honourable consultation.