Queensland
Constitutional Review
Commission

Return address:
c/o Peter Jull
Dept of Government
University of Queensland
Brisbane, Q. 4072

voice: 07-3878-9726
e-mail: pjuii@tpgi.com.au

To:   The Chair and Commission Members
        Constitutional Reform Commission, Queensland
        PO Box 185
        Brisbane Albert Street, Qld 4002

A RECONCILED CONSTITUTION & RECONCILED QUEENSLAND:
Opportunity for a Political Accord?

The authors [1] respectfully submit the following proposals and background materials pertaining to the recognition of Aboriginal peoples and Torres Strait Islanders in Queensland constitutional structures and the opportunity to address their needs and aspirations through constitutional reform.

Part 1 is the General Submission.
Part 2 deals in more detail with Political Accords.
Appendices deal with several matters.

Helena Kajlich
 

[1] Peter Jull, Adjunct Associate Professor, Dept of Government, U of Queensland, has researched and practised indigenous constitutional and political reform for many years in North America, Northern Europe, and Australia. Helena Kajlich is researching constitutional law, indigenous ethno-politics, and native title, and the relations among the three, in the Faculties of Law and Social/Behavioural Studies at U of Queensland.

September 17, 1999

Post Script on Apologies

To Chair and Commission Members,

Preparing to put our brief in a courier envelope to you, we were hit by some late news. The Nunavut newspaper, Nunatsiaq News, had gone to press and posted its main contents for today's date on the Internet. There we find the text of an apology and statement of renewal and shared purpose by Danish Prime Minister Rasmussen issued jointly with Greenland Inuit premier (and Lutheran pastor), Jonathan Motzfeldt. Mutually isolated from each other until recent years, Greenland and Nunavut now follow each other's affairs and exchange visits, helped by weekly air service.

The apology is attached. Its most significant feature is the Prime Minister point that the lamentable 1953 removal of the Polar Inuit from their home village of Uummannaq to make way for the American nuclear air base, Thule, and the many social and cultural problems resulting from the move, would not have happened if Inuit, i.e., the Greenlanders (the Inuit descended and Inuit-language-speaking inhabitants of Greenland), had been self-governing as they have been since 1979 when Home Rule came into force. Self-government - or home rule - is indeed seen by the world's indigenous peoples as their best hope, as events in East Timor bloodily remind us.

Jull has an article in press in Melbourne's Arena Magazine on the background of the Thule relocation and aftermath, drawing on his participation in hearings with the Polar Inuit in 1987. Briefly, the Polar Inuit continued to press their case for promises made to them in 1953 to be kept, and for remedies for unforeseen problems resulting from the move. Following a court decision in late August 1999, the Danish Prime Minister flew some days later to Greenland to issue his apology in Danish and Greenlandic, and to oversee arrangements for the small personal compensation payments for the 53 survivors of the move and the large community infrastructure projects which are a symbolic remedy.

One may speculate on how many removals and actions by governments and their military forces in North Queensland and across the north, centre, and west of Australia in general, with their tragic outcomes, not to mention the situation of the Stolen Children, would have been avoided if Aborigines and Torres Strait Islander had been recognised as communities with political identity and the right to make decisions about their future. As long as outsiders make decisions for Peoples, cultures, and communities they do not understand, even 'in their best interest', tragedy, grievance, and sorrow will follow.

Peter Jull            Helena Kajlich

Nunatsiaq News, Iqaluit (Nunavut) - Sept 17/99 For the Record

Denmark and Greenland: building mutual respect

Following upon Danish Prime Minister Poul Nyrup Rasmussen's apology for the forced relocation of the Inughuit in l953, Denmark and Greenland have signed a new agreement aimed at renewing the relationship between the two governments. Here's the full text of the agreement, signed September 2.
Our Commonwealth has, since the beginning, been built upon equality, mutual respect and solidarity.
Denmark and Greenland have a common history, a fact that we have to defend even when history is unpleasant - and also during times where human self-worth have been compromised.

The Danish High Court has on August 20, 1999 ruled in the case regarding the forced movement of the Thule people in 1953. The Danish High Court states that the Danish authorities acted unlawfully at that time. The forced movement was decided and carried out in such a way, and under such circumstances, that it has to be regarded as a serious encroachment towards the people.
We can't alter the historic events, but we have to answer for them and respect them. With the recent verdict, a limit has been set for the government's encroachment towards the people.

Today, no one can be made responsible for actions committed by past generations almost 50 years ago. But with the spirit of the Commonwealth, and with respect for Greenland and the inhabitants of Thule, the Government would, on behalf of the Danish State, like to bring an apology - utoqqatserpugut (mamiasuktugut) - to the Inughuit, the inhabitants of Thule, and to the rest of Greenland, for the way that the decision regarding the forced movement was made and carried out in 1953.
We wish to continue and strengthen our collaboration and solidarity between Denmark and Greenland. The Danish-Greenlandic co-operation within the Commonwealth shall also in the future be based on mutual respect.

With the amendment of the Constitution in 1953, the citizens of Greenland were made to enjoy the same rights as the Danish people. With the introduction of the Home Rule Government in 1979, Greenland obtained its own parliament, a fact which implied that decisions were and are made closer to the people in the Greenlandic democracy. A possible repetition of what took place in 1953 is therefore out of the question.
We recognize the achievements we have made through our co-operation and solidarity over the years since 1953. Our Commonwealth has experienced a very positive human, social and economic development for the benefit of the people of Greenland and Denmark.

The Danish Government wishes to strengthen Greenlandic participation in matters having to do with foreign policy and in security issues which have to do with Greenlandic interests. Dialogue regarding this matter have begun already on the basis of the report of the "Anorak" Committee (Committee comprising of officials from both the Greenlandic and the Danish Governments), among other things.
Representatives for the Greenlandic Government will be included in the negotiation process, when new agreements are made between the Danish Government and foreign states, on matters which have specific relations to Greenland.

(signed)
Poul Nyrup Rasmussen
Danish Prime Minister

(signed)
Jonathan Motzfeldt
Premier of Greenland

Recognising Realities, Recognising Indigenous People

In the years since the last major reviews of the Queensland constitution (1993) and rights issues (1992-93), issues of Aboriginal peoples and Torres Strait Islanders have become more prominent, vexed, and debated within Queensland and Australia as a whole. The policy or lack of policy at national level has seemed to amount to drift and denial [2]

The immediate results of this have included international censure (by the United Nations among others), much unwelcome overseas media scrutiny (likely to intensify over the coming 12-24 months with the Olympics and Centenary of Federation), outrageous verbiage at home associated with populist xenophobic movements and entangled with the mixed domestic-international rant which seems to fuel them (not least thanks to the Internet), duplicity and fantasy passing for policy debate, e.g., on native title and its implications, and a deepening alienation between the descendants of the original inhabitants of Australia and the political and legal culture and institutions of the post- 1788 settlers who govern the country in whole and in its parts.

In spite of the wearying stalemate at national level, there have been major developments in Queensland. For instance, we have seen publication of perhaps the definitive account of Queensland's indigenous policy history (Roslyn Kidd's The Way We Civilise, University of Queensland Press, 1997). There have been several important new books on local or regional aspects of indigenous-white relations, e.g., Stars of Tagai, 1993, and No Ordinary Judgement, 1996, by Nonie Sharp on Torres Strait; Loos & Mabo's Edward Koiki Mabo: His life and struggle for land rights, University of Queensland Press, 1996. And we have had fierce debates on the indigenous rights and related aspects of the Century Zinc project in northwest Queensland as well as the state and national debates following the Wik decision of the High Court in late 1996.

There have been important and popular works on indigenous social issues such as Sister Girl by Jackie Huggins (University of Queensland Press, 1998); and many new works on indigenous land use and environmental questions such as Burning Questions by Marcia Langton (NT University, 1998) and A Sea Change by Peter Jull (Resource Assessment Commission, Canberra, 1993). Work such as the marine ecology aspects of indigenous cultures led by Dr Dermot Smyth, now based at James Cook University's Townsville and Cairns campuses, is expanding not only Queensland and national awareness, but contributing mightily to the international study, fast accelerating, of the contribution of indigenous peoples to the world environment and the importance of returning decision-making and management to such coastal peoples.
 

[2]It has also amounted to failure, as a rare unity of national Aboriginal leaders has made clear this week at their special meeting, see 'Unfinished business: blacks unreconciled for centenary', by Margo Kingston, Sydney Morning Herald, September 16, 1999.

There have also been studies and books on national indigenous constitutional and political issues such as Aboriginal Sovereignty by Henry Reynolds (Alien & Unwin, 1996); and two books by Father Frank Brennan, Securing a Bountiful Place f r Aborigines and Torres Strait Islanders. (Constitutional Centenary Foundation, Melbourne, 1994) and One land, one nation (University of Queensland Press, 1995).

In addition to these has been a vigorous indigenous and expert debate on the possible usefulness to Queensland and Australia of some adaptation of the regional agreements which have characterised the combined native title, self-government, and land/sea territory management agreements negotiated in, notably, Alaska, Canada, and Greenland since the early 1970s[3]. For an explanation of the dynamics of that experience, no less evident in Queensland than elsewhere, see Jull P & Craig D, 1997: 'Reflections on Regional Agreements: Yesterday, Today and Tomorrow', Australian Indigenous Law Reporter, Vol. 2, No 4, pp 475-493.

Perhaps the most profound - and too often overlooked - event has been the publication of Roslyn Kidd's The Way We Civilise (UQ Press, 1997), the documented story of Queensland's indigenous policies and outcomes. That story of dispossession and discreet slavery under official auspices should shock anybody, and would have caused wholesale reforms or the fall of governments if it had appeared in any other European-peopled 'first world' country. The ease with which some Australians have been prepared to overlook such evils and the ongoing effects of those evils in their midst should be no comfort to thoughtful people. Such a situation merely stores up trouble for the future. Where people have been dispossessed from their territories and remain disadvantaged and abused in countless large or small ways by virtue of skin colour and social background, positive action is required to pre-empt the sort of descent into political violence which has been seen in, e.g., Ulster and the Basque country. Nobody likes to feel they are subject to emotional blackmail, but neither should anyone have fantasies that Australia is immune to the universal dynamics of ethno-politics.

In June 1993 the Council for Aboriginal Reconciliation and Constitutional Centenary Foundation held an invited conference in Canberra and discussed Australian possibilities with substantial input from specialists in New Zealand, USA, and Canada. The very useful documents resulting [4] unwittingly conceal the extent. of consensus achieved, a truly remarkable consensus considering the lack of background preparation and the diversity of participants in the discussion. The consensus reached was that:

indigenous peoples are distinct political communities in Australia with unique needs; and

processes should be established as soon as possible for them to work out the nature and details of their constitutional place in Australia.

A number of national constitutional conferences and conventions have now urged action on the inclusion of indigenous peoples, the most full schedule having been proposed in the final document of the 1998 Constitutional Convention, despite the much-criticised appointment procedures used by a prime minister [5].
If the current indigenous policy difficulties in Canberra are taken out of the equation themselves apparently as much a matter of personalities as ideas - one finds that there has been a vigorous intellectual and moral debate going on in both Queensland and Australia, and one fuelled by many sane and informed voices. This will bear good fruit in the longer term, as it has in every other educated affluent 'first world' country.

Recognising Rights
The United Nations Draft Declaration on the Rights of Indigenous Peoples recognises, at an international level, the fundamental right of indigenous peoples to exercise self determination [6]. Michael Dodson presented to the Commonwealth Parliament in 1995 his report on the Indigenous Social Justice Package, asserting that there is 'need for a broader recognition of the fact that as distinct peoples, Aboriginal and Torres Strait Islander peoples are entitled to enjoy distinct and unique rights' [7]. The ATSIC submission for the same purpose and at the same time was significantly titled Recognition, Rights, Reform. Despite such recommendations, and since the 1996 federal election, political motivation to found social policy in group-specific rights has diminished. It is imperative that political and policy processes initiate a rights based approach so that indigenous peoples may be empowered to actively pursue their needs and interests.
This is possible by initially recognising these rights, then by ensuring they are not simply made subservient to party politics, but are realised at all levels of nation-state activities. Dialogues between the nation-state and indigenous peoples can not be founded on classical liberal concepts of formal equality, but must begin to embrace substantive equality - that is, rights founded with respect for difference. While recent court decisions have acknowledged the existence of unique indigenous interests in land, these rights are still heavily dependent on the political interests of parliament [8]. They need to be further elaborated and embedded in Australia's political identity. Indigenous injustices can only be adequately redressed by collectively identifying and respecting the inherent and inalienable rights of indigenous Australians, producing not only a sense of empowerment for the indigenous community, but formal institutional recognition. It is this recognition which enables indigenous Australians to pursue their rights with the greatest degree of legitimacy and state support. For indigenous and non-indigenous peoples to create new forms of association reflective of a more inclusive society, it is essential that indigenous peoples attain this legitimacy and be respected as an integral, yet distinct part of Australia's national political identity.
 

[5] The Communiqué notes that the Constitutional Convention of February 2-13 resolved that a Preamble should include among other things 'Acknowledgement of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders' and 'Affirmation of respect for our unique land and the environment'. It adds that it was resolved that 'The following matters be considered for inclusion in the preamble: [two items with the third and last being] Recognition that Aboriginal people and Torres Strait islanders have continuing rights by virtue of their status as Australia's indigenous peoples.' Finally the Convention called for 'a further Constitutional Convention' some years after institution of a republic on whose agenda various items would be, including 'constitutional aspects of indigenous reconciliation'.

[6] Existing UN requirements are substantial, too, e.g., Article 27 of the International Convention on Civil and Political Rights. For a discussion of this and related requirements in Australian context, see HREOC, 1995: 'International Human Rights Developments: Article 27, International Covenant on Civil and Political Rights; Draft Declaration on the Rights of Indigenous Peoples', Third Report, 1995, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunities Commission, Sydney, pp 96-135

[7] Dodson M, 1995: Indigenous Social Justice, Vol. 1, Strategies and Recommendations, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights arid Equal Opportunity Commission, Sydney. The report is on-line under Social Justice Library, at the Council for Aboriginal Reconciliation web site.

[8] The United Nations Committee on the Elimination of Racial Discrimination (the CERD Committee) have made recommendations to the Australian Government to 're-open discussions' relating to native title 'with a view to finding solutions acceptable to the indigenous peoples and which would comply with Australian's obligations under the Convention'. This kind of international censure could not only damage Australia's international reputation, but inhibit the adoption of governing structures more appropriate to a post-colonial age.

Regional and Local Structures
Indigenous cultures and communities are local or regional in the first instance. An indigenous person can only live fully within his/her own culture in the home territory. On the other hand, an Anglophone Australian can practise his/her culture and expect governments at all levels - local, state or territory, and national - whether in Cairns, Brisbane, Roma, Hobart, or Perth. Indeed, many aspects of the latter's culture, law, values, etc. are more widely portable in English speaking countries, i.e., among New Zealand, Canada, UK, USA, as well as Australia.

Whether as peoples or as individuals, indigenous people can only take charge: of their lives and retain their cultures through self-management, self-empowerment, self-government, self-determination - or whatever else one wishes to call the shades of autonomy - at local and regional level. They may combine at national and international levels for political purposes with like-minded groups or peoples,, but the major political arena is more narrowly confined [9].
 

[9] For instance, in Canada three national federations of indigenous peoples - Indian first nations', Inuit, and Metis - used their national clout in order to secure self-government reforms which are or will be exercised at local and regional levels. Inuit used their national constitutional reform work and other national efforts to secure substantial native title and self-government rights for the four natural regions into which they are divided, i.e., Labrador, Arctic Quebec, Nunavut, and the Western Arctic (Beaufort Sea coasts and Mackenzie Delta). The movement of charismatic and just plain capable Inuit leaders and staff experts from national and international work back to the main focus of developing governance and land/sea/freshwater management systems, i.e., the four regions, has dangerously denuded their national and international work of needed personnel, and at times undermined the effectiveness of those wider levels of work.

'First world' countries have been exploring the possibilities of self-governing; in such traditional communities. Although some Australians have been resistant to the concept, it is worth noting that the Island Co-ordinating Council of Torres Strait with its regional council and c. 20 local councils, and the Aboriginal Co-ordinating Council, as well as various structures in individual Aboriginal or Islander communities, already reflect the principle in action if not all the practical possibilities. Australia has other such novelties, such as the special status of Lord Howe Island within New South Wales, and the three inhabited island territories vis-a-vis the Commonwealth, i.e., Norfolk, Cocos (Keeling), and Christmas. Appendix C discusses how overseas precedents may serve practical use in thinking about Queensland possibilities, both in processes and outcomes.
Two approaches worth looking at in more detail for Queensland and Australia are found abroad.

1. The Russian democratic reformers are devising national legislation to provide a framework of principle within which indigenous peoples and territories may negotiate secure and legally enforceable native title and self-government within the context of their unique cultural and regional needs. This approach apparently has widespread support across the political spectrum in Russia but has been held hostage to the continuing brawls between executive and legislature in Moscow. A draft of the legislation, probably revised since, is appended in an ATSIC volume [10].  Our attempts to obtain an English translation of the most recent drafts has been continuing but without success to date.

2. Canada's British Columbia province, long the cockpit of native title angst and polarised politics - in a regional with political culture and history often likened to Queensland - now has a tri-partite federal-provincial-Indian treaty commission to umpire, facilitate, and fund regional and local negotiations on self-government and native title. The treaty commission is on-line and the BC government ministry for Aboriginal Affairs site also contains much information [11].
 

[10] An appendix to Jull's article, 'Politics & Process: The Real World of Regional Agreements in the Northern Hemisphere', A TSIC Regional Agreements Seminar, Cairns, 2931 May 1.995, Proceedings, Aboriginal and Torres Strait Islander Commission (ATSIC), Commonwealth of Australia, Canberra, 1995, pp 17-41.

[11] The treaty commission site is: http://www.bctreaty.net/ The BC ministry site is: http://www.aaf.gov.bc.ca/aaf/homepage.htm

Examples of Political Accords
The second part of this brief deals with the philosophy and significance of political accords, a note from ongoing research by Helena Kajlich However, it may be useful to note a few examples of the genre.

1. The case most frequently noted in Part 2, Nunavut, was one in which Canadian Inuit promulgated or negotiated both informal or de facto political accords, and formal agreements [12]. For instance, at the first national televised constitutional conference of Prime Minister, Premiers, and Inuit, Indian, and Metis leaders, in March 1983, Inuit leaders tabled a small document which the Inuit government MP, taking his turn in the chair beside Prime Minister Trudeau, made sure the Prime Minister duly read and found acceptable [13]. This sort of de facto exercise, where something is put out for significant real or potential negotiating partners, may be as important as some formal materials in a process-oriented political culture like Canada's. However, we are particularly interested in the formal full political accord between Inuit and the federal government which was not only negotiated but placed in the Agreement-in-Principle and Final Agreement of the Nunavut claims settlement, a settlement legislated in national law (and above the reach of any future Nunavut legislatures) and given special Constitutional. protection as per provisions of the Constitution Act, 1982 [14]. This was not only necessary because of Inuit distrust of the federal government, but essential for Ottawa to keep negotiations on land issues and other critical matters afloat. Had Inuit broken off negotiations, after all, it would have left the ownership and management of one-fifth of Canada up in the air.

2.In 1981, unable quickly to agree on a package of indigenous rights to entrench in the Canadian Constitution, Inuit, Indians, and Metis pressed - and Ottawa accepted through then justice minister Jean Chretien - Constitutional amendments, later written as Section 37 of the Constitution Act, 1982, to guarantee future conferences between Prime Minister, Premiers, and indigenous peoples for such a purpose. This saved face all around, as well as buying time for all to prepare their case and tackle complex and unprecedented issues. After all, for all the frustration of indigenous peoples, governments had no practical idea or experience on how to deal with such matters as indigenous rights and cultures in legislation or policy. All sides needed time to explore each other's positions and understand each other's needs.

3.With the first multilateral conference looming, of those promised in point 2 above, Inuit leaders proposed that one way of making progress and keeping all sides in the game, however fretful, would be to agree to a preamble for an indigenous clause in the Constitution. Not a preamble to the whole Constitution, but for an indigenous section. This preamble would provide some general guidance to all sides and, later, when some substantive rights were agreed, those could be added. The idea appealed to the federal government, to the largest province, and others, but eventually indigenous leaders decided to try a more ambitious (and unsuccessful) bill of rights. The proposed Inuit preamble would have had. three parts: recognition of distinct culture and society, self-government within Canada, and traditional territories and livelihoods. Some form of words would probably have been easily enough agreed at the time among governments.

4. Further along in the process mentioned in point 2 above, the first-ever constitutional conference of all sides - federal, provincial, and territorial governments with indigenous peoples - took place in March 1983. Unable to reach wide substantive agreement, the parties drafted and accepted a political accord, the first and in our view perhaps the purest and clearest of many more to follow over the years. These accords kept things moving along, maintained some good faith essential to progress, and allowed this or that unhappy or worried party to work through problems alone or in quiet consultation with others. (Most or all of these first national political accords are appended to Schwartz, full reference at footnote 33 below.) In sum, political accords take the heat and venom out of indigenous-white political stand-offs, provide a forum for quiet rational discussion, and create an opportunity to achieve workable and mutually acceptable outcomes. This is a better bet for making progress than having quick-on-the-draw heads of government issuing one-liners at doorstop press ambushes on tense and bitter racial issues.
 

[12] The Nunavut story is outlined briefly in Appendix B to this brief. A more full account of the politico-constitutional background is Jull P, 1998. Indigenous Autonomy in Nunavut.  Canada's Present & Australia's Possibilities, Centre for Democracy, Department of Government, University of Queensland, Brisbane, June 29, 1998, 30 pages.

[13] Self Government The Inuit View, Document 800-171040, from the Inuit Committee on National Issues (ICNI) delegation at the First Ministers' Conference on Aboriginal Constitutional Matters, Ottawa, March 15-16, 1983, 4 pages.

[14] The political accord is Article 4 in the Nunavut Land Claims Agreement which is available at various sites on-line, including: http://www.inac.gc.ca/nunavut/index1.html

Joining the World
One of the benefits of the intense debates in Queensland and Australia since the Mabo decision of June 1992 jolted public and governments out of the psychology of terra nullius has been the growing awareness that indigenous recognition and rights are an international current. That is, Australia, far from being alone, is merely the latest liberal democracy to discover through 'trial and error' that accommodating - or reconciling - indigenous peoples and territories through constitutional and policy reform is neither risky nor unprecedented. On the contrary, not to make such changes is a real threat to social harmony and the cultural pluralism of a modern country.

The value of overseas experience is that without pain or risk Australians may survey experience in comparable social and political conditions and devise the most promising next steps for this country. The Canadians have already been through something very much like current Australian debates on words in constitutional documents, for instance (see Appendix A, 'Constitutional Ambles and Preambles. With or without the country's indigenous peoples!?').

Canada's major package of amendments, the Constitution Act, 1982, included a recognition of indigenous rights and of their pre-eminence over equal rights - e.g., indigenous fishing rights recognised or negotiated under treaties or new native title claims settlements taking precedence over the rights of other users. (In the USA's Washington state on the Pacific Ocean, bordering Canada, a federal court judge had to take over the entire fisheries himself in order to force citizens to uphold the promises made to the Indians about their continued access to fish made in the 19th century [15].)
 

[15] This and other aspects of North American indigenous fisheries are discussed in P Jull's A Sea Change: Overseas Indigenous-Government Relations in the Coastal Zone, Resource Assessment Commission, Commonwealth of Australia, Canberra, September 1993, 156 pages.

Norway has an elegantly simple one-clause constitutional amendment. This was developed by a commission not unlike the Reconciliation council, aided by an expert sub-group. This clause was explicitly intended and interpreted to include land and sea territories and resources as part of the requisite base for indigenous culture. It reads:

It is the responsibility of the authorities of the State to create conditions enabling the Sami people [i.e., 'the Lapps'] to preserve and develop its language, culture, and way of life [16].

In the Kingdom of Denmark, which kept Norway's Viking Age empire although it was stripped of Norway itself after the Napoleonic wars, the vast Inuit-peopled Arctic island of Greenland has undergone major constitutional evolution in recent times. After the Second World War the Danes poured in the material improvements wanted by Greenlanders (i.e., the Inuit-language-speaking inhabitants) and incorporated them formally into Denmark. The pace and nature of change turned the old ways upside down and fuelled ethno-national resistance and demands for more self-rule and cultural continuity. This led in time to full Home Rule in 1979, and today Greenland is usually regarded as the model for successful contemporary indigenous 'self-determination'. The Greenlanders decide and manage their own affairs in virtually all areas except foreign affairs and defence, and even there they have considerable rights in practice [18].

Other important sub-national models are the Cook Islands and Niue within New Zealand, Alaska's various forms of indigenous regional and local control, American Indian tribal government in the Lower 48 states, and one which has evoked much interest in Australia, the Nunavut self-governing Inuit territory of Northern Canada.
(See Appendix B for a brief sketch of the achieving of Nunavut, 'New Deal for Canada's North'.)

It might be added that the devising of sui generis local constitutions in line with unique historical and cultural needs in Australia's inhabited island territories Norfolk, Cocos-Keeling, and Christmas - should not be ignored, or the case of Lord Howe Island within New South Wales. The accommodation of ethno-regional needs is by no means as 'foreign" to Australian practice as many would like to pretend.

Appendix C, 'The political future of Torres Strait', illustrates how overseas experience can be useful when thinking about needs here in Queensland.

Conclusion
It is the argument of this submission that processes which provide the two sides, government and indigenous peoples, with opportunities to understand each other's needs and practical realities, and then to negotiate workable and mutually acceptable outcomes, is the best way to proceed. It is also the best way - perhaps the only way to resolve long-standing indigenous grievances and disadvantage.
 

[16]  Helander E, 1992: The Sami of Norway, Information Article, Ministry of Foreign Affairs, Oslo. For background on the clause see the chairman's presentation, Smith C, 1987: 'The Sami Rights Committee: An Exposition', Self Determination and Indigenous Peoples: Sarni Rights and Northern Perspectives, IWGIA Document No. 58, International Work Group for indigenous Affairs, Copenhagen, 15-55.

[17] A useful recent collection of studies is Berge E & Stenseth NC (eds), 1998: Law and the Governance of Renewable Resources: Studies from Northern Europe and Africa, ICS Press, Oakland, California. A more practical and brief view from Sami is Indigenous Affairs, Special Sami issue, 211996 (April-June), published by International Work Group for Indigenous Affairs, Copenhagen, a journal widely available in Australian libraries.

[18] One pebble in the Danish shoe has been the 1953 removal of the Polar Inuit from their homes at 76'30" North to make way for an American nuclear air base. After decades of frustration, a Danish higher court in late August 1999 found for the Inuit survivors of the forced move and the hardships and broken promises involved, and within days the Danish prime minister flew to Greenland to apologise in person (in both Danish and Greenland's Inuit language) and to oversea remedial measures and compensation. See Jull's article in the forthcoming issue of Arena Magazine, Melbourne.

 The role of a constitutional process in relation to indigenous peoples is, primarily,
· to embody mutual respect of peoples or ethno-cultural communities,
· to provide recognition of identities,
· to address outstanding needs,
· to represent indigenous interests (whether at national or sub-national level),
· to begin to implement mutual recognition and shared basic objectives, and
· to advance newly achieved consensus for greater institutional legitimacy.
The purpose of a constitutional process is primarily to facilitate the needs of indigenous peoples and represent these interests at both national and sub-national levels, to begin to institute mutual recognition of fundamental objectives and advance this consensus with greater institutional legitimacy. Essential to any form of negotiation or attempts at building new forms of association is the prerequisite of mutual respect [20]. For indigenous participants in negotiating forums to legitimately pursue their interests there must be recognition and respect for certain fundamental objectives. Illustrative of this point is the recent case of Kartinyeri [21] which sought to determine whether section 51(xxvi), or the 'race power', conferred on the Federal parliament power to act 'for the benefit of aboriginal people, or merely the right to legislate 'with respect to' races of people. Justice Kirby has been the sole member of the High Court to find in favour of the former, arguing that to construe section 51(xxvi) as allowing adversely discriminatory laws opens up potential for 'manifest abuse' (citing the examples of apartheid in South Africa and the Third Reich in Germany) [22]. Opposing this view, Justices Gummow and Hayne found in favour of the latter [23]. These judges felt that the government was constitutionally empowered to legislate either for the benefit or to the detriment of a race of people, and in this instance, they upheld the Hindmarsh Island Bridge Act 1997 as constitutionally valid despite finding it detrimentally discriminatory against the Ngarrindjeri people. While this controversial area of law has yet to be conclusively decided, the principle, at issue evidences all too clearly institutional deficiency in addressing indigenous needs. There must be genuine recognition of their rights as indigenous Australians so that objectives can be pursued with the greatest level of legitimacy and institutional support.
 

[19] The authors have taken note of the interest among several Aboriginal leaders in this approach to indigenous recognition, rights, and renewal in Australia and so they will be researching and writing further on the subject in coming weeks and months. This section of the submission reflects Helena Kajlich's current work.

[20] Page 191, Tully J, 1995: Strange Multiplicity:  Constitutionalism in an age of diversity, Cambridge University Press.

[21] Kartinyeri v The Commonwealth (1998) 72 MLR 722.

[22] (1998) 72 MLR 722 at 153-157, 163 per Kirby J.

[23] (1998) 72 MLR 722 at 91 per Gummow and Hayne JJ; at 32-45 per Gaudron J.

The failure to establish these foundations disables the growth of new relations between the state and indigenous peoples. The current stalemate is not only the result of the entrenched institutional exclusion of indigenous rights, but also the problems of representation in that some governmental constituencies disapprove of amending these structural deficiencies. However, Canadian experience proves that even public sentiment hesitant to reformulate indigenous policy can easily be redirected. In 1969 the Canadian government released the 'white paper' which denied indigenous peoples the existence of their distinct rights [24]. Founded in classical liberal ideology, the state sought to affirm the equal rights of indigenous and non-indigenous Canadians. This document was denounced by indigenous peoples, inspiring intense lobbying by various groups to make the public and international community acutely aware of the inherent inadequacies of such an approach. Their actions succeeded as Canadian society began to engage in public discussions about rights, encouraging the reassessment of policy initiative to more closely resemble an 'intercultural dialogue', to borrow Tully's term [25].

Constitutional process can be initiated at both a national and sub-national level. It affords a viable means of initiating discussion and negotiation towards the realisation of self-determination for indigenous Australians (recognised in the Draft Declaration on the Rights of Indigenous Peoples as an inherent right of all indigenous peoples). The initiation of such a process would nurture an 'intercultural dialogue' essential to the development of negotiations and agreements necessary to reconceptualise indigenous and non-indigenous relations [26].  Further, such process offers, especially through the implementation of sub-national process, responsiveness to diverse needs and interests by developing new structures to accommodate this interaction. 'The Canadian example of Nunavut provides ample evidence of such processes being established, culminating in the ultimate realisation of responsibility and independence for indigenous peoples, that is, a territory in which they exercise self-determination [27].

In Australia, the federal government is imbued with certain advantages in dealing with indigenous issues. It provides opportunity not only to determine that policy initiative reflect a more positive approach, but it has the capacity to ensure that this is a national redirection. It can legislate to protect the interests of indigenous peoples from being subverted by state politics. However, this is not to neglect the distinct importance of state-indigenous relations [28].  A constitutional process can be adopted as readily at a sub-national level with the same determination to promote practical outcomes. Sub-national process can be manifest in a multitude of forms, such as regional agreements, political accords, community self-governance and the creation of state and territorial bodies, however the underlying objective is that a degree of consensus be achieved so that progress be instituted.
 

[24] Weaver S, 1981: Making Canadian Indian Policy. The Hidden Agenda 1968-70, 'University of Toronto Press.

[25] Book reference at footnote 20.

[26] See page 189 in Tully.

[27] In projecting 'self-determination' as a desirable objective R is important to first be aware that this concept has no conclusive definition, nor definitive means by which it can be realised. However, for the purpose of a working definition it has been often held to be the empowerment of people through greater control over the decision-making process and of issues such as political status and economic, social and cultural development. As stated, this can be achieved through various forms of self-governance and this flexibility ensures that a suitable process be adopted for the people it will represent.

[28] See section 109 Australian Constitution.

Process is not about solutions or final outcomes, but about remodelling existing structures to become more inclusive. Tully observes that 'the aim of negotiators over cultural recognition is not to reach agreement on universal principles and institutions, but to bring negotiators to recognise their differences and similarities, so that they can reach agreement on a form of association that accommodates their differences in appropriate institutions and their similarities in shared institutions' [29].  Historically in both Canada and Australia, alien governing structures were imposed based upon a belief in their inherent superiority. In Australia this was apparent when the first settlers dismissed existing aboriginal forms of governance as so uncivilised as to deem the entire continent terra nullius. By subjugating indigenous peoples in. this way and by continuing to do so through resisting recognition of their distinct cultural identities and thereby their rights, the state perpetuates their exclusion. Remedy can only be administered by respecting this uniqueness and enabling it to be fully exercised through self-determination. The example of Nunavut offers insight. as to how a sub-national process can succeed by reforming historically paternalistic and excluding governing structures by establishing workable self-governing bodies [30].

In response to the Canadian land claims of the 1960s, indigenous peoples began to collectivise their interests. In 1976 the first organised Inuit lobby group the Inuit Tapirisat of Canada (ITC) sought an agreement with the Federal government asking for all land in the NWT located north of the tree-line. Since this influential political mobilization 'the concept of Nunavut has been part and parcel of the Inuit land claim... the Inuit position has always been that before they sign(ed) a land claims agreement they must have a guarantee that Nunavut... be created' [31].  This determination lead to the first of a series of 'agreement-in-principle' arrangements between indigenous bodies and Federal government, all of which pushed the federal government to accept the possibility for a separate territory within the NWT.
 

[29] Page 181, Tully.

[30] The Nunavut style of political process is receiving international recognition. Much compared with Kosovo's failed ethnic relations when it was formally launched in April 1999, Nunavut got another boost on September 6, 1999, when French president Jacques Chirac flew there from a summit of Francophone nations of the world held in Canada's Francophone Acadia region - a summit at which human rights violations by many member countries was a flashpoint. President Chirac made the unprecedented gesture in lqaluit of bestowing on John Amagoalik, deservedly renowned as 'father of Nunavut', the order of the Legion of Honour of France. Amagoalik is universally known simply as 'John A' among both Inuit and non-lnuit, an allusion to the other 'John A', as Sir John Alexander MacDonald is still known, modem Canada's founder and prime minister from the 1850s to 1890s.  John Amagoalik's short speech in Darwin in 1992 is still remembered as an inspirational moment in Aboriginal and Torres Strait Islander communities of northern Australia, see Amagoalik J, 1994: 'Canada's Nunavut: an indigenous northern territory', Surviving Columbus: Indigenous Peoples, Political Reform and Environmental Management in North Australia, ed. P Jull et al., Australian National University North Australia Research Unit, Darwin, pp 23-25.

[31] Page 9, Purich D, 1992: The Inuit and Their Land. The Story of Nunavut, Lorimer, Toronto.

The Nunavut territory was not created pursuant to any special rights recognised formally in the Canadian constitution, but was the product of years of negotiation between the federal government, the Northwest Territories (NWT) and Inuit [32].
Evidence of Inuit ability to secure practical and reasonable outcomes," the 'Nunavut Political Accord' has been hailed as the agreement which secured the Inuit right to realise self-determination in a newly established Nunavut territory. The Inuit agreed that the 'Nunavut Political Accord' would not be pursuant to any constitutional rights, but would exist independent of it. The Nunavut Act was enacted in June 1993 adopting the proposed framework set out in the political accord, modelling itself on the current NWT structure. This likeness assisted in ensuring easy passage through the Federal parliament as there were no major points of contention [34]. Nunavut formally assumed those powers within the jurisdiction agreed to under the Nunavut Act on April 1, 1999, the first day of the Canadian fiscal year.

The political accord used in establishing Nunavut demonstrates clearly the potential such agreements offer in creating a constitutional process. It creates a positive, co-operative framework facilitating further negotiation by setting out desired objectives.  During these Nunavut and other constitutional developments in Canada, all of the collaborating parties (i.e., the federal and some provincial governments as well as C native peoples') hoped 'that through the process of meetings and discussions on the range of basic native concerns, a new understanding and productive relationship will develop and one which will make progress easier on all concerns of native people in Canada' [35].  For Australia to learn from such examples [36], there must be genuine attempts to engage in negotiation. It is imperative that dialogues between the
government, indigenous groups and the general public are initiated to better facilitate a negotiation process. The recent failure to gain statehood for the Northern Territory provides evidence of the importance of encouraging genuine public debate arid discussion of constitutional issues (and their relation to indigenous rights!). Unless all sectors of the public are aware of the implications of proposed policies for reform there will naturally be reluctance to instigate change. For this openness to actualised, certain objectives have to be spelt out and rights recognised. Indigenous peoples, if they are to have political legitimacy, must be respected as distinct peoples with distinct rights.

Political accords articulate these shared objectives by committing parties to legislate or act in accordance with the agreements, laying secure foundations for future dealings. Current governmental approaches seem reluctant to address the scope for inclusion of distinct indigenous rights within existing structures. There is a lack of institutional commitment to base the legal position of indigenous Australians on fundamental rights and forge new relations between existing institutions and the rights and needs of indigenous peoples. While political accords do not embed these, rights at the most formal and authoritative level they do enable essential groundwork to be realised. They provide opportunity for the growth of greater constitutional processes, attaining a degree of consensus to found indigenous issues on rights. At both a state and national level Australian governmental bodies, together with indigenous groups could begin to initiate such a process by utilising the advantages presented by political accords.

In many respects a constitutional process appears to have already begun with recent events stimulating extensive public discussion and debate. However, for the process to be successfully embarked upon, the issue of rights must dominate the agenda. It need not be solely in pursuit of formal constitutional recognition, but rather reflect the beginning of a clearer articulation of what these rights are and with what legitimacy they can be pursued. Once discussions focus on these elements of a rights-based approach, this can continue to develop into a constitutional sub-national process. Political accords offer means through which this can be facilitated, providing a positive framework for enhancing the rights and collective responsibilities of indigenous peoples in the realisation of self-determination. It assists in reformulating relations between indigenous peoples and existing forms of governance by developing new forms of association which enable a more inclusive post-colonial state.
 

[32] It was rejected that the new territory was to be derived from the Inuit's aboriginal rights as protected under section 35 of the Constitution Act, 1982.  That was deemed to give the territory an unacceptable constitutional status, considering that Nunavut was to be a public government representing, serving and including all Canadians living in that area, not just the Inuit' (see page 96, Cameron K & White G, 1995: Northern Governments in Transition: Political and Constitutional Development in the Yukon, Nunavut, and the Western Northwest Territories, Institute for Research on Public Policy, Montreal.).

[33] Observers consistently praise Inuit skill at procuring viable outcomes from the negotiation process. Schwartz notes that the Inuit negotiators at Constitutional conferences tend to be succinct, precise, result-oriented'. Suggesting that this may be the product of their unique culture, he states that `the human ideal of traditional Inuit culture was a laconic, even tempered, practical person'. (Page 33, Schwartz B, 1986: First principles, second thoughts: Aboriginal peoples, constitutional reform, and Canadian statecraft, Institute for Research on Public Policy, Montreal).

[34] Page 97, Cameron & White

[35] Pages 52-53, Jull P, 1980: 'Canada's Native Peoples and the Constitution', IWGIA Newsletter, No. 24, International Working Group on Indigenous Affairs, Copenhagen, April 1980, 47-54.

[36] Since beginning work on this paper, the authors have learned that some national Aboriginal leaders are actively considering how best to advance consensus-making, principle stating, and rights-based policy reform in company with some substantial political accord in Australia over the coming months and years. It would seem that the considerations in this paper may present relevant points should such a path be adopted.

Appendix A

February 11, 1999 [corrected 12-2-99] [1]

Introduction
The current debate in Australia about whether to include or exclude indigenous peoples in the initial stages of national constitutional reform echoes similar dilemmas and debates in Canada.

This issue is not new in Australia. There was the national discussion leading to the successful 1967 referendum granting the federal government paramountcy in indigenous affairs in principle, despite frequent federal resistance in practice. There was (and is) the movement for a national indigenous treaty. On the contemporary scene a crucial event was the Constitutional Centenary Conference 1991 held in Sydney, the beginning of the multi-partisan and public work of the Constitutional Centenary Foundation. That remarkable and valuable conference adopted a dozen priorities which were presented to federal, state, and territory government and opposition leaders, all meeting together on the final day, April 5. Indigenous issues were included [3]. That conference had, among much material shared by all delegates, at least one paper which drew attention to then recent Canadian experience [4].
 

[1] Corrections consist of a revised sentence and added footnote 20 at the bottom of page 7, and added footnote 22 at top of page 9.

[2] The author is a survivor of Canada's indigenous-govemment constitutional processes of the 1970s and 1980s in which he participated at various times as a member and adviser of federal, provincial, territorial, and indigenous delegations in the 1968-87 period.

[3] The relevant text reads: 10. The Aboriginal and Torres Strait Islander Peoples and the Australian Constitutional System  (1) There should be a process of reconciliation between the Aboriginal and Torres Strait Islander peoples of Australia and the wider Australian community, aiming to achieve some agreed outcomes by the Centenary of the Constitution.  (2) This process of reconciliation should, among other things, seek to identify what rights the Aboriginal and Torres Strait Islander peoples have, and how best to secure those rights, including through constitutional changes.  (3) As part of the reconciliation process, the Constitution should recognize the Aboriginal and Torres Strait Islander peoples as the indigenous peoples of Australia.

[4] That paper is reprinted as Jull P, 1991: 'The Future of Federalism and Indigenous Peoples in Australia and Canada', North Australian Research: Some Past Themes and New Directions, ed 1 Moffatt & A Webb, Australian National University North Australia Research Unit, Darwin, 204-223.

Mabo and Wik decisions of the High Court in 1992 and 1996 respectively brought home to most Australians for the first time that Aborigines and Torres Strait ]Islanders have some respectable and substantial rights even within the legal framework of our British-derived legal system. Those decisions and the public discussion following them drew attention to long-standing precedents and practice in related countries, i.e. New Zealand, Canada, and USA, and in the wider world. Taking new legislative pains to leave indigenous rights 'cabined, cribbed, confined' - or virtually extinguished - may have been the one truly radical step of the recent past. After all, the traditional conservatism of our politico-legal system in matters of common law rights and fundamental change may be the surest anchor in our constitutional system. If we can legislate away the common law rights of Aborigines and Islanders today, whose will be swept away tomorrow? Graziers, farmers, Jews, leafy suburbanites, homeless children?

A much-overlooked but valuable event early in the piece was a June 1993 conference in Canberra organised by the Constitutional Centenary Foundation and Council for Aboriginal Reconciliation [5]. There was a high degree of consensus there, despite a very disparate group assembled, on the urgent need for indigenous peoples to be given means to work out with governments a satisfactory form of constitutional recognition and status within Australia. The early work of the Indigenous Social Justice project in 1994-95 promised something like the sort of start needed but has been neglected since the 1995-96 federal election campaign [6].

In a season of angry and florid debate on indigenous issues, the Constitutional Convention of 1998 in Canberra surprised most observers by the extent to which goodwill, accommodation, productive co-operation, and even idealism were capable of forming among the Usual Suspects of national and political elites The three references to indigenous peoples in the Communique were promising and take us up to the present situation [7].
The debate now in Australia contains three question of interest here: 1 . whether indigenous recognition should be part of the first wave of constitutional change, i.e., for inclusion alongside a referendum question on replacing the Queen with an Australian head of state?

2. whether logic and the realpolitik of reform do not require more time and a more phased and incremental approach before such issues as indigenous concerns have hope of success in inter-governmental consensus or a national vote?

3. whether merely cosmetic and symbolic constitutionalisation of indigenous is adequate or desirable at this time? The same concerns arose in Canada in the 1980-81 period, except that a national referendum was not on the cards then [8].
 

[5] Conference proceedings were later published in two useful booklets: The Position of Indigenous Peoples in National Constitutions: Conference Report, and The Position... Speeches from the Conference, June 4-5, 1993, Council for Aboriginal Reconciliation, Canberra, and Constitutional Centenary Foundation, Melbourne.

[6] See, e.g., Indigenous Social Justice, Vol. 1, Strategies and Recommendations, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, Sydney, 1995.

[7] The Communique notes that the Constitutional Convention of February 2-13 resolved that a Preamble should include among other things 'Acknowledgement of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders' and 'Affirmation of respect for our unique land and the environment'. It adds that it was resolved that 'The following matters be considered for inclusion in the preamble: [two items with the third and last being] Recognition that Aboriginal people and Torres Strait islanders have continuing rights by virtue of their status as Australia's indigenous peoples.' Finally the Convention called for 'a further Constitutional Convention' some years after institution of a republic on whose agenda various items would be, including 'constitutional aspects of indigenous reconciliation'.

[8] Referenda have not been part of Canada's constitutional practice, although some provinces advocate them for constitutional change, and some experts now believe the precedent of the 1992 national referendum on the Charlottetown Accord makes the device almost obligatory in future.

The Canadian Experience
In the 1970s there was mounting pressure from indigenous peoples, the general public, court decisions (including Canada's Mabo equivalent, Calder 1973), and the logic of indigenous policy issues [9] to include indigenous peoples in constitutional reform. The Trudeau Liberal government raised that possibility in June 1978 in wording not unlike that of the Australian 1991 conference noted above. However, the federal government believed (as did the provinces) that the urgent items on the agenda were other matters. Seeking to consolidate many indigenous reforms of the era in the face of near-certain electoral defeat and under pressure from indigenous leaders, the Trudeau government in February 1979 - strongly supported or even co-sponsored by two respected Tory provincial premiers - moved in a private meeting of federal and provincial heads of government (i.e., 'first ministers' in Canadian parlance) to add a new constitutional agenda item on Canada's 'native peoples', meaning the Indian first nations, Inuit, and Metis [10]. They also agreed at that meeting that such an item would require lengthy face-to-face meetings, not merely the usual backstage management of issues by the network of national inter-governmental relations officials and ministers.

Duly defeated in the May 1979 election, Trudeau gave way to Conservative prime minister Joe Clark. One of the items Clark had to confront in his first hours in office was the indigenous constitutional issue. Indigenous peoples feared that what few rights and precedents they had accumulated were at risk in the ongoing federal provincial constitutional bargaining. They were now lobbying in London for the Queen to meet them. Clark reassured indigenous leaders about his intentions and even caught them off-guard a few times in his early months in office by admitting mistakes and reversing decisions, a political style very different from that of Trudeau [11].  Finally on September 29, 1979, Prime Minister Clark met with the Indian leaders and agreed to advance their rights as a constitutional agenda item. Perhaps the most important aspect of that meeting was the understanding of the agenda item: it was not to be merely an item or issue, but rather a forum in which many items or issues could be discussed and negotiated, that Clark opted for. The first real meeting took place in December 1979 - a committee of federal and provincial ministers meeting with indigenous leaders. The federal minister representing Prime Minister Clark made a pointed and poignant opening speech about the practical, emotional, and intellectual difficulties governments and indigenous leaders faced in their meetings [12].  However, misfortune overtook the Clark government in Parliament some days later because of its tough Budget (for which reason 'Short-term pain for long-term gain!' is now a joke and warning in Canadian political culture). In new elections in February 1980, Trudeau, who had retired, was brought back with his Liberals and resumed office, but he complimented Clark publicly for the steps he had taken in indigenous affairs.
 

[9] Notably (1) the need to reform the framework of Indian policy to accommodate real self-government and (2) the unease of Inuit and other indigenous peoples living in Quebec under a government committed to a full sovereignty which would include the takeover of indigenous lands and people, both tending to demands for national constitutional change.

[10] The Metis are mixed-blood descendants of Indian and white ancestors who historically played a central role in the fur trade and other events on Canada's moving frontiers, including the shaping of Western Canada and their own 19th century history there as the Metis Nation. See, e.g., Purich D, 1988: The Metis, Lorimer, Toronto, and the classic, Stanley, GFG, 1960 [1 9361: The Birth of Western Canada, 2nd ed., University of Toronto Press.

[11] This was the more important in that his indigenous affairs minister was a dud and indigenous leaders, cabinet officials, departmental officials, and others had to become very creative in getting matters to cabinet in spite of that minister, and, indeed, underground railways were built and worked well enough.

[12] A chunk of that speech is contained in a new Australian article, i.e., Jull P, 1999: 'Reconciliation and Renewal', Arena Magazine, No. 39 (February-March 1999), 20-21.

In a speech on April 29, 1980, during the lead-up to Quebec's first referendum on sovereignty, Trudeau dramatically advanced matters - a fact which many indigenous leaders did not choose to recognise at the time - by accepting an indigenous agenda for constitutional discussion with indigenous peoples. That is, instead of trying to shove indigenous concerns into the predetermined categories of Canadian governments and constitutional experts [13], the rather different and cross-cutting concerns of indigenous peoples would be addressed. These were 'aboriginal rights', 'treaty rights', indigenous self-government within Canada, indigenous political representation (e.g., in Parliament), and federal and provincial responsibilities in service delivery to indigenous people. However, when Trudeau felt compelled to rush into another intensive and positive phase of constitutional reform after the failure of the Quebec sovereignists in their referendum, he restricted discussion to an accumulated list of federal-provincial concerns. After protests, the indigenous peoples were able to make representations to the official and ministerial meetings on these subjects, a solution which satisfied nobody and was highly unproductive.

Later in 1980, however, a special Senate-House joint committee on the Constitution was set up and under Tory pressure its proceedings were televised, To the amazement of the government, the public was extremely interested. That interest led to tremendous political pressure for constitutional reform to recognise rights, and a great many amendments to its constitutional 'patriation package' were accepted by the government during the committee's life in 1980-81. In particular the public was shocked and outraged by submissions from Japanese-Canadian organisations based on their experience of internment and property confiscation suffered during World War 2. How could Canadians have so mistreated and denied elementary justice to a minority? The indigenous peoples were also influential and had now been conducting their campaign for constitutional reform and a role in it for more than a year. While Indian chiefs in full ceremonial headgear delighted the tabloids in London, even the pragmatic and 'moderate' Inult bought space and wrote an artful half-page open letter to the Lords and Common in The Times politely concluding:

Just as our Prime Minister [Trudeau] rightly points to constitutional patriation as a leftover item of colonial business, so do we acknowledge that our, status is also unfinished business. We know that the Government and Parliament of the United Kingdom have a long and honourable history in this regard, highlighted by such moments as the success of Wilberforce in ending slavery and the historic effort in working out an end to the situation created by Unilateral Declaration of Independence in Rhodesia in 1965.

Often it is easier to see matters from afar and we hope the United Kingdom will remind the Canadian Government that it has obligations of its own, towards Canada's aboriginal people prior to patriation.

We believe there is a clear moral if not legal obligation on the part of the United Kingdom in this regard [14].

Then serious contacts between the federal government and indigenous. leaders began. At the end of January 1981 the Inuit led a negotiation with then justice minister Jean Chretien which saw the committee unanimously adopt several indigenous affairs amendments. This included two on which the Inuit had to insist most stubbornly on that bleak winter Friday in Ottawa: one including Metis alongside Indians and Inuit in the Constitution, and the other writing into the Constitution a commitment to hold conferences between government leaders and indigenous peoples on indigenous rights.

The extent of this sea change in Canadian political culture was not immediately understood. In November 1981 the provincial premiers ganged up on Trudeau's government and forced the dropping of the several indigenous clauses as the price of their acceptance of a final deal. Then all hell broke lose. For 2½ weeks the indigenous organisations worked together in an Aboriginal Rights Coalition, plus various Indian first nations who refused to join that structure formally, in having the issue on the front pages and evening news nationally and in each province and territory. Marches, public meetings, refusals to meet with governments on other matters, occurred all at once. All predictions that this uproar would pass were disproven, and when the Budget came along, the one sure-fire cure for public attention (it was supposed), that only sent the matter to the inside pages and lower TV spots for a day. The Canadian public, after 350 years, was sick and tired of 'speaking with forked tongue', of swindling 'the natives', of breaking faith. The indigenous groups had no glossy or flossy techniques or friends or money. the whole thing was carried on sheer moral outrage.

Then this spontaneous movement took a strange turn [15].  Meeting with Trudeau, the leaders found him happily willing to re-consider [16].  When he told indigenous leaders that they would have to influence the premiers, it seemed simply impossible, an end to the story. But the Aboriginal Rights Coalition and provincial Indian groups turned up the heat. The indigenous leadership broke up into mixed teams, i.e., each including   Indian, Inuit, and Metis members, who criss-crossed the country meeting premiers and opposition leaders. Nothing like it had ever happened, even if one Inuit leader, the late Mark R Gordon, could laughingly say that some of the Atlantic premiers probably were ready to meet him 'only because they've never seen an Eskimo before!' Premiers feel heat, too, of course, and none wished to court charges of racism or be seen as a hopeless reactionary at a time when the public climate was becoming crystal clear.
 

[15] A much abridged account (e.g., leaving out the provincial dimension) of these weeks is published as Jull P, 1982: 'Canada: A perspective on the Aboriginal Rights Coalition', IWGIA Newsletter, No. 30, International Working Group on Indigenous Affairs, Copenhagen, April 1982, 82-98.

[16] Early in Trudeau's second year in office he dismayed Indian leaders with an all too doctrinaire 'liberal' approach to their concerns, but by the time he retired in 1984, he and his government had presided over great changes. His own moral leadership and expertise - he was a constitutional law professor - won the highest admiration and praise from indigenous leaders who genuinely mourned his retirement. He has been misunderstood by friends and enemies in his indigenous policies, but his indigenous policy record speaks for itself.

All the turn-about was not only on the indigenous side. After the January 1981 deal led by Inuit, some other indigenous leaders had denounced Mark Gordon and his team as sell-outs and worse (and continued to do so). He was amused to hear their voices among the most strident on radio and TV in upholding that deal when it was taken away from them by the premiers in November. At any rate, Canada travelled a very long way in 12 months, and to make a long story short, the premiers agreed to reinstate the indigenous clauses. When the Queen arrived in spring rain to sign the Constitution Act 1982 into law in April 1982 - her presence important as much to restore British and world opinion about Canadian treatment of Quebecois and of Indians, Inuit, and Metis as because she was the formal head of state - indigenous leaders were honoured dignitaries.

Points worth noting
Since that time various Canadian political leaders have occasionally made the mistake of thinking they could 'leave out' indigenous leaders on fundamental constitutional talks, but not for long. The pleasant words of the 1982 amendments have now been interpreted by the highest courts, first and notably in Sparrow 1990.

Further points are less tangible and no less important. The uproar of 1981 brought the less populous northern Indians, Inuit, and Metis into national prominence and even national leadership, people who had earlier been treated as bumpkins by the larger and more 'radical' indigenous groups in the cities and 'settled south' of the country. Now the northerners' practical style and search for living accommodation (or 4 reconciliation') in their 'outback' territories [17],   however misconstrued at times as outrageous or divisive, was seen for what it was: a genuine way forward and a workable new style for indigenous-white relations [18].
 

[17] Embodied now in the constitutional and political novelty known as the 'regional agreement' under which indigenous people secure territorial rights and regional self-government. For more information on the political shape and context of these see Jull P & Craig D, 1997: 'Reflections on Regional Agreements: Yesterday, Today and Tomorrow', Australian Indigenous Law Reporter, Vol. 2, No 4, 475493. For legal and territorial aspects, See Richardson BJ, Craig D & Boer B, 1995: Regional agreements for indigenous lands and cultures in Canada, Australian National University North Australia Research Unit, Darwin.

[18] One of the most unfortunate casualties of Australia's debates of recent year's has been the demonising of similarly practical and accommodating Aboriginal and Islanders leaders in Northern Australia as dangerous radicals beyond the pale of reasonable political discourse or negotiation. Before too long it will almost certainly be seen that their way is the only game in town.

Furthermore, the Canadian public in 1981 did not understand or deeply sympathise with 'native title' or 'aboriginal rights'. On the contrary! But that was not the issue. The public had also heard for years all the cries and shrieks of mining executives and the fear-mongering of reactionaries. That was not the issue, either. Rather, 'ordinary' Canadians were simply no longer willing to accept governments treating the poorest and most marginalised groups in the community in a cavalier, thoughtless, or opportunistic fashion. Enough was enough. Many were especially ashamed of the rhetorical nonsense, Canada's equivalent to Australian terra nullius, that there were only 'two founding nations, French and British' [19].

It must also be understood that the Canadian events were part of a continuum. Indigenous leaders used available opportunities, but their constitutional achievements were not random or fortuitous. The evolution of Canadian policy and indigenous politics away from marginalisation and assimilation to recognition and equality in practice through respect for indigenous particularity has been steady since the mid 1960s or earlier. It has had its setbacks, but in the main it has seen steady progress with a few pauses. There has been a clear logic to it all. It is common for Australian critics of Canadian experience to depict this or that event as accidental or a stunning mistake, but the truth is that there has been a consistent direction and like water flowing downhill, it finds its way around obstacles.

Empty phrases for constitutional preambles were tried, repeatedly, but Canadians may have been spared by the difficulties inherent in trying to write such philosophical platitudes in two languages at once. What might work in French in one phrase was hopeless in English, and vice versa. Many formulations were advanced, but at no point were the general public or indigenous public tempted or swayed by mere words. Substance was wanted. A statement of national purpose or goodwill was one thing, but not a substitute for something stronger. Later in 1982 when governments and indigenous leaders began the hard work of moving to the next stage, Inuit proposed a three-part preambular statement which could introduce indigenous issues in the Constitution and to which substantive items might be added after future negotiation [20]. These clauses would (1) provide collective recognition for indigenous peoples and their traditions and cultures and attendant rights; (2) acknowledge the indigenous right to self-governing institutions within Canada; and (3) give recognition in principle to indigenous economic and environmental rights. The federal and major provincial governments accepted this and restated it in their own drafts, but inexperienced lawyers assisting indigenous groups threw the moment way in an idle hope of winning a lengthy indigenous 'bill of rights'. (Lack of experience was shared equally all around the table, of course, and at least some of the problems in Australia, too, in recent years are attributable to simple lack of practice no less than lack of political will.) An approach such as the Inuit-proposed preamble could have bridged symbolism and substance.
 

[19] The more thoughtful also recalled that those two 'founding' nations had, indeed, often foundered in the 16th, 17 th, 18th, and early 19th centuries, saved only by the material and especially military aid of the Indians, e.g., in wars of national survival against the Americans after 1776 and again in 181214.

[20] Part 11 of the Constitutional Act 1982 is such a section, of course - titled 'Rights of the Aboriginal Peoples of Canada'. The idea was that the preamble would provide significant recognition and interpretation in itself, whether or not further elements were agreed. It could also give shape and direction to future negotiations. At any rate, the recognition and respect of this internal preamble could provide the psychological breakthrough which indigenous policy and indigenous-white relations so badly needed.

Also, the Canadians found over following years that 'political accords', or statements of intent for future meetings or negotiation processes, became an indispensable aid to their complex and long-running inter-govemmental discussions of indigenous rights. These enabled many meetings to end happily, or at least without an explosion, and also kept everyone in the hunt together for workable outcomes. Such a technique also allowed larger themes and processes to bypass or  survive brushes with unhelpful or uncomprehending politicians of the moment.

Although at the critical time, in 1980-81, many people involved thought the indigenous case could wait upon more urgent or immediate constitutional matters, in hindsight most of us would now agree that the time was ripe and the opportunity might have been lost. It is ironic to note that despite the successful demand for more conferences, the Canadian indigenous reforms negotiated in 1980-81 and passed into law in 1982 have been almost the only ones finally and fully enacted [21].

Concluding Remarks
Constitutional work is not for the merely literal-minded. Those who wish to be too admirably concrete are apt to dismiss it as fantasy and rubbish, while others talk dismissively to scare away the ghosts of their own lack of self-confidence. Others, notably on the extreme Right and in One Nation, make out that the indigenous self-determination movement in Australia is a mere creation of one or two individuals, or of a recent United Nations draft. They fail to grasp that a spirit of 'reconciliation' and indigenous recognition is as old as modem Australia. It came along on the First Fleet. The reconciliation movement has been developing and evolving in a great way since the 1960s. All the sound and fury of the past several years may have actually strengthened its core and broadened its base.

Constitutional work requires constant straddling of two worlds, one which is politically practical and one which entirely escapes firm definition. The latter is a world of 'may be', or 'should be', or could be', and is framed in cultural, especially verbal, terms. There are no guidebooks.

The Canadians faced many surprises in the 1980-81 period despite the fact that neither constitutional politics nor the ethno-politics of indigenous-white relations were new to them. They made many major political miscalculations. Since then there have been more upsets, notably the 1992 defeat of the constitutional referendum on the Charlottetown Accord, an event which saw most of the experts and political elites humiliated by the popular vote, region by region, locale by locale. That turned out to be only a dress rehearsal for the annihilation of the Tory government of the day in 1993, reduced to a mere two seats in the House.
 

[21] On the other hand, later work on the Charlottetown Accord, 1992, and the report cif the Royal Commission on Aboriginal Peoples, 1996, have clarified and elaborated important matters which will probably be subjects of further enactments when a good opportunity arises.

Today Canadians are wrestling with more such matters, e.g., the Nisga'a Indian treaty in northern British Columbia, a province much like Queensland or Western Australia. Twenty years ago acceptance of indigenous rights was politically unthinkable; today the premier puts forward the newly negotiated treaty as the best chance of retaining power in a difficult provincial election. However, both federal and provincial governments may have been too cautious earlier in making their case, allowing ratbags and know-nothings to hijack the issue. If Canada fails in this first major regional agreement in a new series, many ills will follow. Because indigenous peoples have a long-term focus and staying power which parties and politicians do not, there is little doubt about who will win in the long-term. After all, they have mastered all the political and communications arts of the societies in which they live. Most Canadian politicians now understand that inevitability.

All the Canadian experience has had one very clear outcome: the country is much more at peace with itself, tolerant of others, and confident now that it has had the courage and integrity to face up to the history of indigenous-white relations.

The situation of Aborigines and Torres Strait Islanders in Australia is well known. A national debate or referendum campaign on recognition would not be starting at Zero. It might even gain strength from some of the wilder voices shrieking about 'cannibals'. Whether the timing is ideal... is it ever ideal in race relations? As for containing the issue to a few empty words, well, after all, Aborigine is an English word from Latin and means 'a first inhabitant. Saying that Aborigines were here first is saying nothing at all. A preamble of such stuff might also state that the Earth is round, or, to be politically cautious, 'round, at least in our present state of knowledge'. We can be too clever and too cautious.

Australia faces many issues relating to Aboriginal and Torres Strait Islander peoples. Complex, painful, and controversial as many of these may be, Australians - and their indigenous negotiators, political representatives, and policy-makers, both indigenous and non-indigenous - have a vast treasure-house of parallels and precedents in other 'first world' countries with similar values, legal systems, and political frameworks. The illusion or besieged sense that Australians are all alone with these problems is unjustified. Overseas experience provides much material for reflection as Australians seek their own solutions in their own context.
 

[22] Contrary to some curmudgeonly folklore in Australia, the indigenous content was not the cause of the voter backlash but one of the most widely supported elements of the Charlottetown Accord among non-indigenous people.

Published as 'New Deal for Canada's North', North, 1/1999, Vol. 10, pp 5-10, by NORDREGIO, Stockholm, the Nordic spatial planning centre (sponsored by the Nordic Council, i.e., Iceland, Denmark, Norway, Sweden, Finland + Greenland, Faroes, and Aland)

Draft for Nordregio journal North, Stockholm            
March 7, 1999

Nunavut. a Northern Ideal
by Peter Jull [1]

When the Arctic Peoples Conference met in Denmark's palace of government and parliament, Christiansborg in November 1973, Sami of Sweden, Finland, and Norway, Inuit-descended Greenlanders, and Inuit, Dene Indians, and Metis of far northern Canada discussed many shared concerns. In particular they were concerned by the 'welfare colonialism' style of social policies in their homelands, a government view which reduced their culture, language, and lifestyles to 'problems' standing in the way of their own well-being.

The other major concern was the way in which national authorities were encouraging construction, mining, forestry, hydro-electric projects and other activities which threatened their own livelihoods and the natural environment on which these were based. Sami, Inuit, and Indians were seen then by governments as people without rights capable of recognition in the modem world.

In the years since that meeting, often identified as the moment when the indigenous international movement was born, many of those individuals have gone on to play important roles at home and abroad. In some countries not much has changed [2]. In Canada, however, the governing philosophy and structures across the northern half of the country have been transformed [3]. That northern revolution or evolution is moving southwards. A special national commission has recommended the northern indigenous 'regional agreements' become a model for all indigenous policy across Canada [4].

Nunavut may be the most dramatic example of the new approach. That is a word meaning 'our land' in the Inuit language and now a new territory on the map. When the new fiscal year in Canada begins on April 1, 1999, Nunavut, a community of only 27,000 people, most of them Inuit (formerly called Eskimos), occupying a huge region of frozen seas, treeless tundras, enormous islands, glaciers, fjords, lakes, rivers, muskeg bogs, rock, and mountains, will become self-governing with its own parliament, cabinet, and premier.
 

[1] Peter Jull has been involved with Nunavut since 1961 and headed the secretariat for the Nunavut Constitutional Forum created in 1982. At present he teaches indigenous politics in the Department of Government, University of Queensland, Brisbane, Australia.

[2] For an update on Scandinavia see Berge E & Stenseth NC (eds), 1998: Law and the Governance of Renewable Resources: Studies from Northern Europe and Africa, IC S Press, International Center for Self-Governance, Oakland, CA. See also, Korsmo F, 1996: 'Claiming Territory: The Saami Assemblies as Ethno-Political Institutions', Polar Geography, 1996, 20.3, 163-179; and IWGIA, 1996: Indigenous Affairs, Special Sami issue, 211996 (April-June), International Work Group of Indigenous Affairs, Copenhagen; and Brantenberg OT et al (eds), 1995: Becoming Visible: Indigenous Politics and Self-Government, The Centre for Sami Studies, University of Tromso, Norway.

[3] An examination of the new philosophy in the context of classical European political science is Tully J, 1995: Strange Multiplicity: Constitutionalism in an age of diversity, Cambridge University Press.

[4] For Seven Generations, The Report of the Royal Commission on Aboriginal Peoples (1996) incl. Background Reports, etc., CD-ROM, Public Works and Government Services (Publishing), Ottawa, 1997.

The elections for the 19 members of the new parliament were held on February 15. On March 3 the first premier was chosen: Paul Okalik, a young Inuit lawyer, whose intelligence, friendliness, humility, and youthful enthusiasm are what Inuit wanted to replace an era of seemingly cynical and self-serving politics in Canada and in the Northwest Territories (NWT) [5].  Indeed, the present NWT will cease to exist on April 1, but the argument to find a new name for the part which is left has become apparently hopeless. One group of playful observers have suggested calling it 'Bob', a friendly and personal North American name!

Nunavut is remarkable. It is the largest part of Canada, larger than the largest province. Yet the 28 communities have no road connections, with each other or with anywhere else. Hunting for food remains important in the family economy of most Inuit, with caribou (reindeer) and sea mammals (seals, small whales, walrus) important sources of protein. There are no major primary or secondary industries, and the one or two mines are isolated and employ few local people. Public services are the major form of wage employment.

Unlike Greenland or Northern Norway, Nunavut's communities, all of them on sea routes, are blocked by ice for most of the year. With good luck supply ships can reach them for a few weeks in late summer. Aircraft are now able to reach all communities, weather permitting, so emergency needs can be met. Costs for ordinary items are high and choice is limited.

Since the Second World War when aviation and military personnel provided the first large wave of outsiders in the region since the old whaling ships of the 19th century, Canadians have come to regard Nunavut and its people as important in national life. Motifs from Inuit art, both sculpture and graphic, with popular music added more recently, have made an impression in a large industrial country frequently uncertain about its cultural identity. After all, most Canadians live close to the American border - whether Francophone or Anglophone, are bombarded daily by American media. Inuit art, language, snow-houses, and lifestyles are authentically, distinctively, 'Canadian' in their place of origin.

Nevertheless, Inuit lives are lived in a less visible reality. When visiting a restaurant or getting into a taxi in Southern Canada they are mistaken for Asians, never recognised as Canada's own original inhabitants. Canadians buy Inuit art and calendars, and use Inuit words for everything from world exhibitions to space satellites, but know almost nothing of Inuit language, culture, or traditional beliefs. Inuit have been an idea, not a reality, to Canadians. However, great changes are underway.
 

[5] In recent months the NWT premier was forced out of office for financial impropriety and his Inuit interim successor, who hoped to become first premier of Nunavut, was defeated in his own district in the Nunavut election.

For a very long time Canadians have imagined the north of their country as a place with the potential to fulfil or shape their destiny. Unfortunately they have had few ideas about how this might happen and even less desire to go and live there. Instead the north has remained a mystical fantasy, and yet, virtually all Canadians have a more immediate sense of 'the north'. It is the place - a lake or river in the forest where they can escape the strains of a puritanical, moralistic, and overdressed society for a little holiday in the fierce, short, and often very hot summer which provides a welcome break from long winters [6]. (To the surprise of many Scandinavian visitors who live in higher latitudes at home, Canada is a very cold country to latitudes as far south as Provence and the French Riviera. Hudson Bay is a huge frozen inland sea, while continental climates, as in Russia, lack warming ocean currents.)

To the extent that national designs were made on the north, these were all too predictable. This huge 'empty' land must be full of potential mineral wealth. Its waterfalls were, indeed, an almost unlimited source of hydro-electric power, the main source of energy in Canada. So, the sort of physical expansion which had taken place farther south in Canada in the 19th
and early 20th centuries could now happen again in the north. This craving reached a peak in the 1970s when cabinet ministers talked of a gas pipeline to be built alongside the Mackenzie River as a nation-building exercise like the Canadian Pacific Railway which knit together the districts and colonies of Southern Canada in the 19th century. Such inflated rhetoric helped Inuit, Indians, and Metis in the north portray government and industry plans as excessive and environmentally unwise, and the resulting inquiries provided forums in which indigenous peoples could, for the first time in Canadian history, speak of their own desires and voice their critique of European-Canadian developmental, political, and social philosophies.

It was in this context which Nunavut emerged. No angry complaint but a positive vision of a new society founded on cultural and social values which all Canadians could respect, and rigorous in its commitment to a new environmentalism in which indigenous peoples were, after all, the real experts, Nunavut had obvious appeal. Besides, the common view of the north as cold, empty, and sterile was intriguingly challenged by the idea of a rich and locally adapted society ready to assert itself

Unlike many political reform movements, the Inuit did not seem bitter or aggressive. Of course, many had things to be bitter about, notably family experience of neglect, discrimination, or abuse in schools and hospitals far from home. However, in promoting Nunavut, Inuit representatives were supremely calm and confident. After all, the north was their land and they knew it, unlike the white man. Fiascos such as southern scientists miscounting food species, notably caribou, and thereby threatening every family's well-being with punitive bans on hunting, and the complete lack of awareness among oil shipping and drilling interests of the effects of noise, etc., on marine species, reinforced Inuit insistence on doing things their way. The white man was a fool, not to be trusted, whereas Inuit were prepared to take responsibility for their region.
 

[6] Ingmar Bergman's depictions of summer, e.g., Sommarlek, are very potent for Canadians, being a recognisably 'Canadian' outdoor summerscape.

If government lawyers failed to get the message, fretting about indigenous disdain for ancient legal doctrines of territory and governance, the general public were wiser.  The commitment to 'northern development', e.g., building roads and opening mines, which had continued Canada's sense of material optimism after Depression and War, the belief that material expansion could solve all problems, began to look a little pale. All Canadians were distressed by the ruining of waterways and paving of former recreation lands by urban and industrial growth; they could identify strongly with peoples who would fight against such a future, even if they were not prepared themselves to go and live in that 'simple' way. The poverty and racial violence of American cities, previously looked up to as hubs of a greater society, also reinforced Canadian fear of an unplanned dystopia at home.

Canadians had no great resistance to community policy and thoughtful regulation, unlike the American public. And so, the NWT, and within it the Nunavut region, benefited from the social and cultural idealism of Southern Canadians.  Governments spent large amounts on schemes of improvement which, although often ill-conceived or insensitive to their recipients' real feelings, were always well-intended. This meant that Nunavut acquired a tradition of active and generous government programs, and that unlike other indigenous hinterlands in the New World such as Canada's provincial northlands, northern Australia, and rural Alaska, material deprivation was not a principal political issue. On the contrary, expectation of high-quality services led to disappointment with any disparities. Other Canadians, for their part, were determined that a brave and hardy people, as Inuit were rightly perceived to tie, did not lack equal rights and decent living standards just because they were non-European. After all, Canada has had a strong tradition of equalising public services and funding among its disparate regions, a commitment now enshrined in the Constitution [7].

In this peculiar climate and cultural niche, Nunavut grew. Things were by no means all favourable. The constant anxiety of Canadians and the federal government about Quebec's independence yearnings meant that any reform agenda involving art ethnocultural dimension was hysterically attacked in some quarters as 'separatist', 'a threat to national security', etc. The weaker sort of northern affairs minister, and both sides of politics had one or two, tried to impress their prime minister by verbally beating up indigenes, one even having his self-righteous rebuttal of an NWT Dene political declaration printed up in poster form and widely distributed.

Then, too, there were the pseudo-rationalists. Nunavut lacked a strong economic base. (Yes, but so does all of Northern Canada, and yet it is allowed to elect representatives and allocate tax dollars.) The Inuit language was archaic and unsuited to modern life. (Yes, it is derived from a different sort of society but the closest dialect to Nunavut's is in use for modern legislation, administration, and finance in Greenland.) The people were too few and isolated for workable government. (Manitoba became a province with c. 10,000 people and was far more isolated in terms of information media, transportation, and communication technology.) Inuit were technologically primitive and couldn't operate in modern life. (As everyone who knows them attests, Inuit are eager for new gadgets and quick to master technical devices of all kinds, and as Canadian media guru McLuhan predicted, they have vaulted right over the Gutenberg print era to be at home amid electronic telecommunication and computer technology at which they are formidable adepts.)
 

[7] Section 36, Constitution Act 1982.

Inuit, being exotic and non-Western, would not be able to operate a European political system. (Whatever tribal fears that Eurocentric viewpoint hides, Inuit actuall, vote in higher numbers than other Canadians and spend many more hours in community and small-group meetings on public issues, and have more traditional cultural experience in achieving consensus, than non-indigenous Canadians.) They are already linking up with Inuit in other countries in pan-lnuit political action. (Yes, just as Anglophone and Francophone Canadians are vigorous members of the British Commonwealth and Francophonie for linguistic and cultural reasons, so Inuit are active in the Inuit Circumpolar Conference. They founded that body to join forces against transnational oil companies bidding down environment standards across international borders and to lobby for better environmental and social protections for themselves and other indigenous peoples against formal and informal coalitions of 'first world' governments determined to let 'national development' proceed at their expense.)

When all else failed, some splenetic officials in Ottawa would bellow that it was ridiculous to think of the backward north governing itself. But here they met themselves in the doorway. After all, federal policy directly and through the NWT government for decades had been, precisely, to prepare Inuit for full citizenship in contemporary Canada.

With the opposing arguments exhausted, and the Nunavut villages resembling other parts of Canada more and more, right down to fanatical devotion to the Montreal Canadiens hockey team and the modem mantra, 'Have a nice day!', in the mouths of young Inuit food servers, excuses were fast disappearing. Fiscal restraint was always the ultimate fallback, and lack of trained Inuit for the jobs of running the government a reasonable second, but new factors had entered with the 1980s, growing in the 1990s. The nationwide pressure for governmental commitment to indigenous self-government, which politicians had been saying for years they supported, needed some real action. Inuit, totally committed to Canada and Canadian unity and Canadian values as Ottawa insiders knew them to be, could be trusted. Furthermore, in the ongoing international dispute with the USA over the status of Arctic waters, political normalisation of the region in dispute, i.e., Nunavut, would strengthen Canada's case [8].

There were difficult issues to be resolved, however. Inuit insisted that the seas and the ice which covered them most of the year were part of the 'land' and central to their lives. They wanted these areas included in their 'land' claim. Also, they insisted that the planning and management bodies for their territory and its resources be given real power to make decisions, not just advisory committees to be ignored at will by officials. Both these items involved fundamental aspects of the white man's political and legal culture and tradition, and it took years before Ottawa yielded. Once done, however, all other indigenous claimants will benefit from the precedents.
 

[8] This issue is explored at length in Griffiths F (ed), 1987: Politics of the Northwest Passage, McGillQueen's University Press, Montreal; and briefly in Robertson RG et al., 1988: The North and Canada's International Relations, Canadian Arctic Resources Committee, Ottawa, and Canadian Institute of International Affairs, Toronto.

Another dimension has been international. Canadians thought of their country as disappearing into a northern emptiness. But Inuit have shared ideas about politics, environment, development, cultural matters, and social problems back and forth
among Greenland, Alaska, Canada, and now Russia, as well as with Sami of Scandinavia and now Russia. By holding conferences and cultural events back and forth, they have startled Canadians who thought there was nothing 'up there'. They have also redefined Canada's outlook so that for the first time, starting only in 1986 [9], Canada had to think of the Circumpolar region in a way not envisioned on the comfortable military fly-arounds and genteel meetings of old boys in times past. The new players have been indigenous, young, often angry, dressed very informally, and not at all clubbable - or more accurately, have redefined the social mores of northern clubbability. The old international northern agenda was high strategy, great hypotheses, and scientific fantasy about Arctic transport; the new agenda only, overlaps much in the scientific research involving biological systems, the resit being the politics of the socio-economic and politico-administrative here and now [10].  Now the problems and triumphs of Inuit in Northern Alaska and Greenland have become part of the Canadian world-view.

The Nunavut claim was first announced in 1976. In 1993 the two legislative enactments, the Nunavut Act setting out the framework for the new territorial government and Nunavut Land Claims Agreement Act embodying the 17-year negotiated agreements on 'land' claims and much more, passed through Parliament." A lengthy phase-in period was agreed, in part to postpone costs and also to allow more time for education and training programs. Previous Canadian experience of major regional agreements, as Australians call the Canadian model [12], showed that hasty or unprepared implementation could undo many of the benefits agreements were intended to confer, and this one had much at stake.

So, in 1999, one generation of Inuit are taking on a project which an older generation spent its life demanding, fighting for, negotiating, and suffering for. It would be hard to overstate the pressures of such indigenous work. Whole communities of people who have been excluded from national social and power structures have to fight their way into the white man's charmed circle, and then act as if they are at home there. The generation in question often have little education, and no formal work background. They have been spokespersons, go-betweens. Their very facility in the white man's world makes them suspect so some of their own people. They face enormous personal stresses which result in health, family, and other problems, including some deaths.

This whole process, for both indigenous peoples and their descendants, and for Canada as a whole, has been a sort of 'heroic age', a time of larger-than-life persons and actions, a time already becoming legendary and unlikely to be repeated. The things which Inuit and others have fought for are already becoming 'normal'. The Canada they fought against - stuffy, conservative, Anglocentric - is gone. The heroic struggle between indigenous youth who believed in themselves and their people, and Canadian governments who clung to the last shreds of an imperial political culture, has been passed to persons who blandly carry out new roles as if the battles had not occurred. Canada is transformed, and the indigenous nations and their hinterlands are transformed.

However, the battles are not really won. The ill health, poverty, disorientation at the pace of change in many indigenous communities is far from ended. Canada's. mainstream political culture is changed, forever, but it will take longer for the intended beneficiaries, the indigenous peoples, to benefit. The cruel irony is that the people who had least at stake may have gained most, while those whose painful needs fuelled the whole struggle face an uncertain future. What is certain is that now an indigenous population is growing up who have the social integration and skills to achieve anything which Canadians can achieve, and they have the will and determination to make sure that they get nothing but the best. Canada is no longer a colony or, as Northrop Frye [13] said, a 'garrison'. The north has, after all, proven to be the defining experience, although not in any of the ways once anticipated.

Meanwhile, the Nordic countries have had much to teach the Anglo-American liberal democracies about social inequities and social reform for many decades. It may be that recent experience of indigenous legal and politico-administrative innovation in Canada can assist Scandinavia to accommodate Sami in their ancient territories.
 

[9] Simard J-M & Hockin T, 1986: 'A Northern Dimension for Canada's Foreign Policy', Independence and Internationalism: Report of the Special Joint Committee of the Senate and of the House of Commons on Canada's International Relations, Ottawa, June 1986, 127-135.

[10] This subject is worth an article or book in itself. Meanwhile, see Osherenko G &Young OR, 1989: The Age of the Arctic. Hot Conflicts and Cold Realities, Cambridge University Press; and, Jull P, 1991: The Politics of Northern Frontiers, Australian National University North Australia Research Unit, Darwin.

[11] Both Acts are online, e.g., Nunavut Act at http://canada.justice.gc.ca/STABLE/EN/Laws/Chap/N/N-28.6.html and Nunavut Land Claims Agreement Act at http://canada.nustice.qc.ca/STABLE/EN/Laws/Chap/N/N28.7.html with the full Nunavut land claims agreement at http://www.inac.oc.ca/subiect/agree/nunavut/'index.htmi together with a graphic of the seasons in Nunavut by Nunavut's (and Canada's) greatest artist, Kenojuak of Cape Dorset.

[12] There is considerable energy in Australia devoted to studying the Canadian precedents, but not yet much action in applying their benefits there. See Richardson 13J, Craig D & Boer B, 1995: Regional agreements for indigenous lands and cultures in Canada, Australian National University North Australia Research Unit, Darwin; Edmunds M (ed), 1998: Regional Agreements: Key Issues in Australia, Vol. 1 Summaries, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra; and Jull P & Craig D, 1997: 'Reflections on Regional Agreements: Yesterday, Today and Tomorrow', Australian Indigenous Law Reporter, Vol. 2, No 4, 475-493.

[13] Canada's great literary and cultural critic, now dead.

Torres Strait Islander leaders and organisations have repeatedly stated a desire for greater regional autonomy. In recent years both sides of Federal politics have publicly affirmed support for this in principle, most recently when Prime Minister Howard visited [1].
The recognition of distinct regional cultures with defined political and administrative autonomy for their traditional territories within nation-states is found in many countries. Such arrangements have been enacted and boasted about by conservative, liberal, republican, democratic, and labour/social democratic governments. The Australian territorial arrangements for Norfolk, Cocos-Keeling, and Christmas Islands are in this mould. Torres Strait proposals fall at the modest end of this international spectrum [2].
However, there has been little discussion in Australia on the meaning of autonomy. For Torres Strait, there has been too little work on how real, as opposed to cosmetic, autonomy might work. Views are usually very general, lacking consideration of many issues. The new report on Torres Strait autonomy by the House of Representatives Standing committee on Aboriginal and Torres Strait Islander Affairs may focus thinking [3].
Some principles apply in any scenario. The first is that greater indigenous design and management solutions to local problems are essential elements of any successful progress on indigenous needs anywhere. Non-indigenous majorities are often reluctant to accept this, but until governments at least have the sense to accept some real indigenous autonomy, indigenous ills and grievances will remain 'insoluble'.
It is also important to realise that the impulses of indigenous ethno-politics are largely determined within an indigenous community itself, not by the convenience, comfort, or timetables of others. Like federalism and labour unionism, indigenous struggles for recognition and autonomy are an awkward fact of life resulting from awkward social history, with their own imperatives and seasons.
Further, there is a predictably recurring list of matters which make up regional indigenous goals. These form a whole, and major items denied will soon cause trouble. In Torres Strait, marine rights, environment management roles, and control of local administration and purse-strings are such basic items. Without them Islanders can be little more than pleaders before government administrators, ie a situation much less than autonomy or self-reliance.
One final point is crucial. Indigenous or regional autonomy is not a farewell, but the beginning of a new relationship. The Australian public as represented by their governments on the one hand, and the regional and indigenous community on the other, will write and live a new history together in more equal and just terms. To put it another way, indigenous or regional autonomy is not separation from the nation-state; rather, it is the beginning of full participation in national life.
Australia is not one of those countries which enacts recommendations of expert or delegated bodies on sensitive matters (as Norway did with the Sami Rights and Sami Culture Committee reports of 1984 and 1985) without extensive debate and much revision or rejection. Public discussion and understanding are required for progress on Torres Strait. Islander leaders will have to inform and guide the Australian community on these matters to achieve a satisfactory outcome.
 

[1] Howard visits -vulnerable" Strait', Courier Mail, Brisbane, 10 July 1997.

[2] Main proposals are G Lui, 'A Torres Strait perspective' in Voices from the Land: 1993 Bover Lectures, Australian Broadcasting Corporation, Sydney, 1994, pp 62-75; Island Co-ordinating Council, Principles and Objectives for the Future of the Torres Strait, Thursday Island, Queensland, May 1991; Island Co-ordinating Council, Position on the Political Future of Torres Strait, Thursday Island, Queensland, 20 january 1993, Torres Strait Regional Authority [TSRA], Submission to the Social justice Task Force (published collection of documents), Thursday Island, Queensland, 1994; and TSRA, Corporate Plan (including Objectives for 1996-2000), Thursday Island, Queensland, 1996.

[3] L Lieberman et al, Torres Strait Islanders: A New Deal-A Report on Greater Autonomy for Torres Strait Islanders, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Parliament of the Commonwealth of Australia, Canberra, August 1997.

A regional community    

Torres Strait is unique, a Melanesian society distinct from but adjacent to Melanesian Papua to the north and the Aboriginal societies of Cape York Peninsula to the south. Islanders were never isolated or withdrawn, but had many contacts and connections, notably in the south-west Strait with Cape York peoples [4] and with the heterogeneous South Sea trade, mission, and work forces from the south-west Pacific [5].  Today the Torres Strait Treaty enshrines ongoing cross-border ceremonial, trading, and social relations contacts of traditional peoples [6].  A flood of Asians and Europeans in the 19th and early 20th centuries made Thursday Island the most multi-racial multi-cultural community in Australia, a vivid boomtime society like a Conrad novel [7].
The Islanders' desire to be politically and administratively distinct from Aborigines has received much publicity. This is not bloody-mindedness, but stems from earlier in this century when Queensland's Aboriginal administration was introduced with much pain and loss of freedom for Islanders [8].
Approximately 6,000 Islanders live in the Strait region, plus 564 mixed Islander-Aborigines at the 1996 census, many more having migrated to towns and cities of Queensland and elsewhere (this dispersed non-Strait population now totalling 22,500 Islanders and 10,000 mixed Islander-Aborigines) [9].  These latter were seeking better jobs and schooling, and more freedom and opportunity, than was possible under the old paternal and authoritarian rule of Queensland in Torres Strait. Whereas the resident Islander populationof Torres Strait and in the two Strait-side communities of Bamaga and Seisia on Cape York must have the clear defining role in any future political settlement, being a large majority of the population as well as the traditional owners and users of the lands, seas, and reefs, governments will be mindful of other Straits residents, too. Many in the Thursday Island region of the south-west do not identify as Islanders, despite having some Islander blood. The Islanders away from the region but still culturally proud and active, and in touch with their home islands, also have much to offer the Strait, not least being a supply of educated and work-skilled Islander personnel.
Problems of poverty, disease, and dislocation in adjacent Papua, not to mention pressure on those communities from Australian resource companies, create problems for Australia's one peopled international frontier, Torres Strait. Unless Australia or the gods soon provide better living conditions and health in Papua itself, and a climate for co-operation in controlling unwanted human, disease, pest, and cargo movements through the Strait, these problems will grow and impact very negatively on the region as a whole. Problems are already alarming, a fact which the Islanders constantly din into the heads of Australian authorities.
The legal and jurisdictional aspects of Torres Strait are sufficiently remarkable that an innovative and unique framework will be needed. The area is an international strait, and a sensitive issue of international law as recent Indonesia-USA talks about national versus international rights in nearby straits remind us. The US leads the world hard line on straits and is very tough, eg in Canada's Northwest Passage [10].  The Americans care little about the environment or traditional inhabitants' rights where the potential passage of their warships is concerned. Australia could perhaps work at international level for regulation of dangerous reef-strewn waters to safeguard ecosystems and livelihoods, however. Canadians did this successfully for ice-filled waters in the Law of the Sea, although still unable to control US nuclear submarine traffic in the Inuit oceans.
Overlapping Federal, Queensland, and Papua-New Guinea jurisdiction in the Strait, and feuds between government departments and  agencies within or between levels of Australian government, will also keep the situation lively. While local issues consume political interest and energy ' -v in the Strait, larger geo-political and constitutional issues will determine its future. These higher level issues are not properly understood, discussed, or addressed in Torres Strait. Real autonomy seems remote. The Circumpolar Arctic is a glaring case study in how coastal indigenous peoples could be ignored and have imposed on them unsuitable or irrelevant political conditions by high level thinkers out of touch with indigenous reality and daily needs [11]. The story of how Inuit bridged that problem and redefined the Arctic in policy and politics is a story which would be no less interesting to Islanders [12].
 

[4] N Sharp, Footprints Along the Cape York Sandbeaches, Aboriginal Studies Press, Canberra, 1992. These Kaurareg and their special outlook and belated inclusion in Strait political structures are discussed in the 1997 Parliamentary report.

[5] S Mullins, Torres Strait: A History of Colonial Occupation and Culture Contact 1864-1897, Central Queensland University Press, Rockhampton, Queensland, 1994.

[6] R Babbage et al, The strategic significance of Torres Strait, Strategic and Defence Studies Centre, Australian National University, Canberra, 1990. For insight into treaty workings, see S Vlacci Managing the unmanageable?The Torres Strait Treaty: its effictiveness today, International Relations MA sub-thesis, Australian National University, Canberra, 1996.

[7] R Canter, The Pearl-Shellers of Torres Strait: Resource Use, Development and Decline, 1860s-1960s, Melbourne University Press, Melbourne, 1994. See also J Beckett, Torres Strait Islanders: custom and colonialism Cambridge University Press, 1987, and J Singe, The Torres Strait: People and History, University of Queensland Press, St Lucia, 1989.

[8] N Sharp, Stars of Tagai: The Torries Strait Islanders, Aboriginal Studies Press, Canberra, 1993

[9]  Figures rounded from L Lieberman et al, Torres Strait Islanders: A New Deal-A Report on Greater Autonomy for Torres Strait Islanders, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Parliament of the Commonwealth of Australia, Canberra, August 1997.

[10] F Griffiths (ed), Politics of the Northwest Passage, MeGill-Queen's University Press, Montreal, Canada, 1987.

[11] See 'Canada's Interests in the International Arctic', Proceedings of Changing Times, Challenging Agendas: Economic and Political Issues in Canada's North, Canadian Arctic Resources Centre, seminar held in Toronto, Canada, 30-31 October 1986, pp 109-159. See also this author's conference paper, 'Canadian Policy and Perspective in the Circurnpolar North', pp 140-159.

[12] For example, P Jull, 'Internationalism, Indigenous Peoples and Sustainable Development' in D Lawrence and T Cansfield-Smith (eds), Sustainable development for traditional inhabitants of the Torres Strait Region, Great Barrier Reef Marine Park Authority, Townsville, Queensland, 1991, pp 427-439

Important socio-economic studies have been undertaken in Torres Strait [13] and major conferences on linked sustainable development, Islander rights, and environment management have been held [14].  There are constraints on economic activity, eg lack of fresh water, distance, transport costs etc., but Islanders point out that the sea could supply not only household needs but a stronger regional fisheries economy. Islanders have too little role in commercial fisheries now. Much-needed public services and greater Islander participation in such jobs would also help.
Islanders constantIy state the need for a regional environmental and sustainable development strategy. Wit h the support of Federal and Queensland governments they have sponsored Studies and consensus-building to achieve this [15].  Such work could be both pilot project and cornerstone for a future tropical or Australia-wide coastal management plan. It is an irony of  'first world' countries that poorly educated indigenes in remote places often have more success in achieving sustainable development frameworks than highly educated experts and officials burying them in glossy pages of noble-sounding intentions. The difference is the political will and socio-econornic importance of the primary resource economy of indigenous peoples [16].
Governmental comprehension is needed more widely.   Social, economic, and environmental policies have a special character in relation to territorial peoples such as Islanders and Aborigines, thanks to international commitments for the survival and well-being of distinct peoples (Article 27 of the 1966 International Convention on Civil and Political Rights may be the most relevant such guide for Torres Strait, as for other areas of Australia. [17]) If imperatives of cultural diversity and ethno-cultural rights are not always popular in some Australian circles today, they are not going to go away.
Remote and sparsely populated areas pose another problem- Governments often regard them as too expensive and unrewarding for full public services, infrastructure, and self-government. An outstanding exception is North Norway, where governments after World War 11 ensured the best possible conditions for Sami and non-indigenous residents alike in difficult and isolated areas. A study of North Norway should be the starting point for any Australian work on indigenous health, for instance.
As global inquiries have shown, the survival of non-industrial ways and indigenous peoples may be most important for such hinterland regions, and local empowerment rather than neglect the logical and best policy [18].  The devastation of the indigenous Arctic coastal peoples of the former Soviet Union by mainstream industrial and social policies is the grimmest reminder of these truths, some of those peoples now hovering on the edge of extinction [19].

• political goals agreed, understood, and articulated by Islander politicians;
• regular meetings in which Islander leaders review progress, factor in expertise (eg legal, economic, environmental, or Politico- constitutional advice and studies), update or revise strategy, and determine tactics;
• active general information work by Islanders to inform Torres Strait and Australian publics of political goals and why they are both just and necessary; and
• political and public relations work under Islander leadership, including among Australian constitutional, political, and legal elites, to build support for negotiation of regional political recognition, self-government, and a just rights, environment, and development regime in Torres Strait.