Australia could expect indigenous people’s bargaining power to be increased by judicial pronouncements, going on Canadian experience, according to a Canadian legal expert.
Professor Patrick Macklem, of the University of Toronto, was speaking at a conference in Canberra yesterday held by the Constitutional Centenary Foundation and the Council for Aboriginal Reconciliation.
He said in a paper presented to the conference, “”In Canada, judicial delineation of legal rights of indigenous peoples has had a profound empowering effect on aboriginal people, with newly defined rights serving to enhance their bargaining power in their dealings with government … Victories in the legal sphere are quickly translated into political power, and political power in turn emboldens legal stances in the courts.”
He said that in Canada the debate had moved on from a discussion about land rights to questions of indigenous sovereignty, governance and jurisdiction.
He said, “”Just as it was unjust to deny the validity of aboriginal rights with respect to land based on the fallacy of European superiority, it is also unjust to deny the validity of aboriginal rights of governance on the same fallacy.”
His paper was being delivered as Aboriginal groups in Australia were discussing the High Court’s Mabo decision with the Federal Government in a way much as he suggests: with the newly defined legal rights as a base for greater bargaining power to pursue federal recognition of greater indigenous land rights.
Father Frank Brennan told the conference there should be a system of registration of native title and the opportunity to transform it to statutory title.
He said it was difficult to establish native title at law and called for a greater community role in implementing the Mabo decision. Arbitrating claims should not be a process for only the Government, pastoralists, miners and Aborigines.