Chartrand examines the concept of 'shared sovereignty' as
a contribution to the debate on reconciliation with Indigenous peoples in Canada and Australia. The discussion includes some commentary on some common features of the reconciliation debate in both countries. The main focus is on the views of a minority of justices in a Supreme Court of Canada case and their comparison with the analysis of Canada’s 1996 Royal Commission on Aboriginal Peoples.His conclusion notes that
The concept of 'shared sovereignties' is presented as an idea that may influence the way citizens think about the indigenous peoples, and their aspirations to live harmoniously with others in circumstances of peace and justice in each country. I have not pretended to determine for indigenous peoples what their aspirations might be, and my contribution is intended to be supportive of aspirations for reconciliation.It is a worthy study but to me far less persuasive than David Ritter's lapidary and insightful 250pp Contesting Native Title: From Controversy to Consensus in the Struggle for Indigenous Land Rights (Crows Nest: Allen & Unwin 2009).
An assumption behind the discussion in this paper is that concepts or ideas are useful and practical. It is interesting that politicians in each country have run roughshod over this simple proposition. To illustrate, they have used rhetoric which pretends to assert a preference for 'practical' strategies over such things as 'abstract discussions about rights ...'. The better view would seem to be that ideas or concepts are useful and practical guides for action. In this view, ideas play not only an important but an essential role because they inform actions designed to reach a particular policy objective. Ideas or concepts inform the development of legal rules and build a coherent doctrine governing a particular sphere of law. Furthermore, extremist views, whether advanced by politicians or ivory-tower ideologues, can not, by their very nature, contribute much to reconciliation.
Shared sovereignties as an idea moves collective thinking in a country that has jettisoned the idea of terra nullius, and which now accepts that the existence and presence of indigenous peoples on their lands matters, to the more fully equitable notion that not only the existence but also the political action of indigenous peoples matters in the creation of practices, precepts and laws that reflect a consensual view of the fundamental values that guide a vision of the just society and of the constitutional order that ought to sustain it. Indigenous peoples have a right to aspire to live according to their own visions of the good society, inspired by their own concepts about the universe and the values that ought to inform the way that good relations are to be established and maintained within families, communities, and the Nation-State. This is my understanding of the essence of the right of self-determination.
... The goal of creating harmonious relations can only be achieved, in the long run, by creating and maintaining good relations between representatives of the indigenous peoples and representatives of the State's governments. The agents and representatives of States, that is, the democratically elected government politicians, decide what is the nature and scope of the 'public interest' of all citizens. That includes all Aboriginal persons. Aboriginal persons are entitled to the enjoyment of all the rights of citizens, and are also subject to the obligations of citizenship. So the government represents the public interest of the entire population of the State, and its government members make decisions in the public interest. At the same time, under the concept of 'shared sovereignty', those who speak for the Aboriginal peoples have the authority and power to make decisions in the 'public interest' of each Aboriginal people that has a right of self-determination.
It is better to live with 'shared sovereignty' than with 'contested sovereignty'. The latter is the enemy of democracy and the companion of repression, subjugation and civil strife. It is better to legitimize the de facto governance of States such as Australia and Canada over the indigenous peoples by welcoming the participation of indigenous citizens in all decision-making that affects the general public interest as well as the public interest of each of the 'nations' or 'peoples' entitled to self-determination.
Wherever decisions are made that affect the interests of indigenous peoples there they must have a voice. The concept of 'shared sovereignty' stands for the idea that legitimate political participation today can cure an unconscionable beginning. If a just vision for our common future in our country must be built upon a common truth about the past, then perhaps 'shared sovereignty' also stands for the idea that as a country we can have a just vision of our society that is built upon an illusion about our ancestors so long as the illusion is commonly held. This should not be surprising if it is accepted that countries or societies seem to build a collective self-identity upon idealized histories.
Ritter was an Associate to Justice Robert French (now Chief Justice of the High Court) when the latter was President of the National Native Title Tribunal. Ritter subsequently served as Principal Legal Officer of a native title representative body and wrote the provocative 88pp The Native Title Market (Crawley: University of Western Australia Press 2009).
Contesting Native Title will discomfort some readers but is of major value for people interested in Indigenous land rights in Australia, in law's treatment of Indigenous people and in justice as a process rather than an outcome.
