What’s in a name? The importance of terminology (especially) at the legal interface
By Distinguished Professor Asmi Wood, ANU Law School
This article broadly examines the matter of terminology related to Indigenous peoples, and especially legal terminology, used individually and collectively to describe such peoples. It seeks more narrowly to identify legal terminology, principally at Anglo-Australian common law, but also for use in the international plane, and as used in Indigenous normative systems.
The term “indigenous peoples” is used for indigenous peoples worldwide in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),[1] an instrument created by indigenous peoples for use by indigenous peoples under the aegis of the United Nations (UN). The term Indigenous – capitalised – is used specifically for “Indigenous Peoples” of the Continent (Australia). The Declaration was also developed in consultation with governments, [2] voted in by a significant majority at the UN General Assembly. The Australian State later endorsed it despite initially voting against the adoption of UNDRIP at the General Assembly.
The particular focus of this article is on legal terminology that can be, and has been, used to describe these various Indigenous communities/peoples. Some historical issues, including those related to identity, are also examined where relevant.
This article specifically examines legal definitions of identity for use in the interactions between the two groups, or two bodies politic – the Indigenous body politic and the non-Indigenous body politic – as recognised in Love v Commonwealth, [3] particularly at the interface where common matters related to these bodies politic must interact. The division of the Continent’s population into two bodies politic accords with the Constitution as enacted. [4] Mutual recognition and common terminology are clearly relevant issues, if not a key prerequisite. The legal terms used for such mutual recognition, it is argued here, should be used consistently unless there are mutual advantages for doing otherwise. This is particularly the case when introducing new terminology.
A brief legal history of contact
When the British colonised the Continent in around 1788, Britain retrospectively asserted sovereignty, initially over what it termed New South Wales and later over the entire Continent. The legal basis for this assertion of sovereignty was the fiction that the Continent was terra nullius at “settlement’'. This assertion of “settlement’' was later challenged by the High Court. [5] However, along with the Court’s acknowledgement of the pre-existence of Indigenous peoples, it merely reasserted the British claims to sovereignty without identifying a new legal basis, thus substituting one legal fiction for another.
Identity or, more specifically, self-identity is often considered a personal matter in the context of Shakespeare’s “rose by any other name” in Romeo and Juliet. As a legal matter, however, precise and accurate terminology is crucial, particularly where rights and obligations attach. In Australia, definitions related to Indigenous peoples’ identity, especially in matters related to the State, are regulated almost exclusively according to Anglo-Australian legal norms by colonial institutions. While Indigenous peoples can, and do, assert their own self-determined terms, legal recognition for their use in official business or for mutual use relies on the approval of the Anglo-Australian system.
Recognition
Since the early days of colonisation, Indigenous peoples have had to interact and deal with the British, their successors and their institutions. These ongoing interactions between the bodies politic have continued over time as a matter of necessity. For the first half-century after British colonisation, there was some recognition by the British of the existence of Indigenous normative and legal systems. [6] Yet as the British gained overwhelming military superiority over Indigenous peoples in New South Wales, this initial recognition gradually was eroded to Indigenous invisibility. [7] By the late 1870s, the legal fiction of a terra nullius Continent was largely established at law. [8]
At federation, terra nullius was entrenched in the Constitution, necessitating agitation by Indigenous peoples for recognition in the Constitution. Attempts at constitutional recognition have failed twice, arguably due to the high hurdle of a double majority. There was, however, de facto “recognition” of the physical existence of an “aboriginal race”. [9] The Constitution also acknowledged the existence of “aboriginal natives”, [10] but this recognition was primarily of the dying race to be managed over a period through segregation. As it became evident that the 'aboriginal race' was not going to die out, the British and their successors moved to a harsh assimilationist phase for Indigenous peoples. [11] Still, the two groups lived separate lives except in a relatively narrow coastal strip where there was competition for land and other resources. A brief history of the path to Indigenous common law and statutory recognition follows.
In the early 1970s, the legal fiction of terra nullius was largely still the law. [12] It meant that Indigenous peoples did not enjoy the right to occupy and enjoy rights of occupation over their traditional lands, as confirmed by Blackburn J. [13] However, his Honour recognised, as a matter of fact, that Indigenous peoples lived under civilised laws, setting the path towards eventual legal recognition of Indigenous peoples by the common law. [14] By the mid-1970s, with the UN’s anti-apartheid and anti-racism emphasis, Australia too began to move against racism, ratifying and incorporating anti-racism policies through international legal instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). [15]
This instrument was incorporated into domestic law as the Racial Discrimination Act 1975 (Cth), legislation that made racial discrimination unlawful. Common law recognition of the existence of Indigenous peoples followed in 1992. [16] A year later, the Native Title Act 1993 (Cth) (NTA) recognised the existence of Indigenous peoples with traditional laws and traditional customs and gave rise to the recognition of native title under the NTA. [17] Australia endorsed UNDRIP in 2009. Statutory recognition of Indigenous peoples was achieved as “Aboriginal and Torres Strait Islander peoples”, [18] terms that already were widely in use.
There is no suggestion that self-determined peoples should be prevented from making decisions about their identity, collectively or individually. [19] This includes, inter alia, the possibility for descendants of Indigenous people, as individuals, to determine their own future engagement with the State or, collectively, to seek subsidiary arrangements with the State as part of that body politic. A key advantage of such organic change is that derogatory terms imposed on Indigenous peoples can be replaced with terms that uphold their dignity and honour.
Yet, there can also be disadvantages to the use of legally unsupported changes in terminology. It potentially allows non-Indigenous people ahistorically to ignore and marginalise built-up bodies of Indigenous experiences. Consequently, instrumental use of new terminology and its resulting disassociation with accumulated bodies of knowledge and experience may gloss over Indigenous pain and suffering. Changes in terminology can also cause history to be forgotten except to specialists. Forgetting or denying the past and intergenerational experiences has practical legal consequences.
Terminology
It is said that there were around 63 different terms used to describe Indigenous peoples on the Continent, [20] a number that has apparently grown over time. A key aim of UNDRIP is for Indigenous peoples to gain an internal form of self-determination or self-government in line with their own histories and legal and cultural morés, including the “self” in self-determination. Such an outcome requires precise and unambiguous use of language.
To be clear, this article does not advocate any specific terminology. It does, however, suggest that the use of accepted terminology, especially terms that have found hard-won legal acceptance and clarity, should not be changed unless there are specific advantages that warrant changes to the existing legal definitions. Indigenous peoples and groups have generally used certain terms to describe themselves collectively or individually and this approach is not challenged in any way. Certainly, UNDRIP recognises the right of Indigenous peoples to belong to an indigenous community [21] or Country, as is the popular term for Indigenous geographical entities on the Continent. Such belonging does not deprive them of the right to nationality in the State. [22]
Indigenous peoples on the Continent generally have, as a practice, preferred to use the names of their own peoples, as they have developed and self-determined over the aeons. These often-ancient terms are clearly self-determined. Some of these terms, for example, state-based collective nouns for Indigenous groups such as Koori and Murri, have entered the common law through native title litigation. However, the use of these and other collective terms is not uncontentious and may, or may not, have legal recognition under the common law.
“Aboriginal” and “Torres Strait Islander” peoples are arguably the most used, legally recognised terms within domestic law [23] to describe Indigenous Peoples. These terms are clearly colonial, meaning they are terminology variously used by the settler State’s post-British claims (that is, its legally unresolved claims [24] ) of sovereignty. The term “Aboriginal and Torres Strait Islander peoples” is used collectively to refer to hundreds of different Countries, many of which are also now separately recognised as communities under the common law.
UNDRIP provides Indigenous peoples with an unqualified right to determine their own individual and collective identities, that is, the “self”, including the processes leading up to self-determination. The clear downside for Indigenous identity, particularly when interacting with the State, is a “need” for common law and settler society “approval” of Indigenous place and collective names. While the need for mutual recognition is clearly important in any form of agreement-making, it is problematic, from the perspective of UNDRIP, that the ultimate test for a name’s approval for use is determined by settler courts in a dispute.
In Australia, being recognised as Indigenous for official purposes is currently done according to a three-part test and is a process ultimately determined according to common law principles [25] rather than Indigenous law or custom. Importantly, the application of this test, which is not self-determined, ultimately determines membership in an Indigenous community and has become widely accepted for many practical purposes affecting Indigenous lives. [26] There is no doubt that a common understanding of terms and names is crucial for clear and precise legal agreement at the legal interface between the two peoples or bodies politic, and markedly so where the level of trust is quite low. What is missing is that the approval for the use of these traditional names is now subject to colonial law.
Sometimes, a change of terminology, such as that associated with an improvement in related rights, clearly is desirable, if not necessary. One such example is the Uluru Statement from the Heart, [27] which set in train a process to gain constitutional recognition through a Voice to Parliament, using several terms to describe Indigenous peoples, including the term “Indigenous”, “Aboriginal and Torres Strait Islander Peoples” and “First Nations”. The use of a new term, “First Peoples”, was proposed in the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill, [28] arguably through consultation with the supporters of the Statement. The 2023 Referendum asked the electors of Australia to recognise the First Peoples of the Continent and to do so through the recognition of an Aboriginal and Torres Strait Islander Voice (to Parliament). [29] However, the referendum did not gain approval by “the people” or “the electors” in the language of the Constitution. [30] While the broader community was divided on the matter, it appears that a large majority of Indigenous voters approved of the suggested change. [31] Nevertheless, without the requisite majorities to alter the Constitution, the term “First Peoples” did not gain legal recognition at the federal level. It should be noted that the term “First Peoples” is now used in Victorian treaty legislation. [32]
New terminology, especially if it creates new rights, is clearly not problematic. If changes are for politically advantageous reasons for governments and oppositions only, then Indigenous communities will, in effect, be asked to endure the change for no practical benefit. On the other hand, if the change is detrimental to Indigenous peoples, then Indigenous communities must be cautious, seek clarification or refuse to adopt the change without adequate safeguards.
More recently, there appears to be reluctance on the part of the government to use the term “Indigenous”. Australia is a dualist nation and international law, including UNDRIP, is not self-effecting. Accordingly, the standards contained under UNDRIP must be implemented through domestic legal frameworks to become legally enforceable in Australia. In 2023, the Australian Government and the Opposition combined to defeat the private members’ Bill (Senator Thorpe’s Bill) that sought to establish a pathway for the incorporation of UNDRIP over time. [33] This Bill was arguably not dissimilar in principle to laws in British Columbia, which are now part of the law in that jurisdiction. [34]
The government, media and others now use the North American term “First Nations” to describe Aboriginal and Torres Strait Islander peoples. This move away from the use of the terms “Indigenous” and “Aboriginal and Torres Strait Islander peoples” may be understood in the context of the Government’s rejection of Senator Thorpe’s Bill, as UNDRIP principally uses the term “Indigenous”. From the Government’s perspective, as well as those lawyers and others working for the Government, the coining and use of this relatively new term may not only divert attention from their opposition to the Bill, but also help ensure such a decision is not conflated with the Government’s resistance to Indigenous rights and standards in the Declaration.
A transition from Indigenous to other terms like “First Nations” prima facie seems innocuous enough. In a linguistic sense, the use of the term “Nations” seems appealing. This term has been used in North America and is associated with a diminution from full sovereignty of Native Americans to a subsidiary and lower form of “domestic dependent sovereignty” with the British and their successors in the USA now possessing the full rights of sovereignty.
Furthermore, the use of the term “First Nations” in Australia may have a negative legal effect because it is not yet defined at Anglo-Australian law. [35] Indigenous people have always noted that sovereignty was never ceded in Australia. Meanwhile, the notion that Indigenous people in Australia possessed a form of sovereignty in accordance with the United States’ common law meaning of First Nations [36] was also rejected by the High Court in Coe v Commonwealth. [37] This raises the question of the scope of the legal meaning of the term “First Nations” as applied in Australia. Is it a new form of terra nullius taking Aboriginal and Torres Strait Islander peoples from hard-won common law and statutory recognition to a new form of legal ambiguity? While the benefits for the Government are arguably clearer, what are the associated legal benefits to Indigenous people of adopting this new term? Although the examination of the issue of sovereignty is more nuanced and complex, prima facie, any acknowledgement of a loss or diminution of Indigenous peoples’ claim to full sovereignty, with no concomitant gains in rights, appears unwise.
Conclusion
The use of common or standard terminology, especially at the legal and social interface, becomes essential for agreement-making between the two peoples. Key definitional and identity-based terms can change over time. Legal terms too evolve and change to reflect social and political circumstances.Some change, such as terms now considered offensive or having offensive connotations under the various Aborigines Protection Acts of the past, might be desirable. The majority of terms used in practice by the Government or the Opposition are arguably for the convenience of the coloniser rather than self-determined by the colonised.
This is perhaps not the intention of the proponents of the use of the term “First Nations” in Australia. However, explicitly choosing to use a term without a legal definition in the domestic context, and thus devoid of legal content in the Commonwealth jurisdictions, must be seen to have a possible legal effect. While governments have their own reasons for inventing “new” terms or recycling old terms from other jurisdictions with clearly different legal content, they can nevertheless carry significant implications. This is particularly true for those terms which may bring little, if any, benefit to Indigenous peoples, such as diminishing Aboriginal claims of full, unceded sovereignty to a lesser form of “domestic dependent sovereignty”. [38]
Evidently, the “pragmatic” use and interpretation of terms is a double-edged sword that, unless explicitly shown to be otherwise, can more often than not work in the favour of the coloniser. Therefore, the selective use of law and terminology should be eschewed by Indigenous communities.
Asmi Wood is a Distinguished Professor, Barrister and Solicitor in the ACT, whose research and recent publications centre on constitutional recognition of Indigenous peoples in Australia and Indigenous participation in higher education.
1 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (English version) GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).
2 EI Daes, “Equality of Indigenous Peoples under the Auspices of the United Nations: Draft Declaration on the Rights of Indigenous Peoples” St. Thomas Law Review, 7(3), 1995.
3 Love v Commonwealth (2020) 270 CLR 152 (Love).
4 Australia’s Constitution s127; Love, above note 3; A Wood, “Australia and Pandemics v BLM: No, Love Lost (at the High Court) Part I”, Alternative Law Journal, 46(3), 2021, 178; A Wood, “Australia and Pandemics v BLM: No, Love Lost (at the High Court) Part II”, Alternative Law Journal, 46(4), 2021, 314.
5 Mabo v Queensland [No 2] (1992) 175 CLR 1 (Murray Island #2).
6 R v Bonjon [1841] NSWSC 92; R v Murrell and Bummaree (1836) 1 Legge 72.
7 A Wood, “Unmasking Indigenous Invisibility: Reforming and Decolonising the Pedagogy of Terra Nullius” in FI Adebisi, S Jivraj and N Tzouvala (eds), Decolonisation, Anti-Racism, and Legal Pedagogy: Strategies, Successes, and Challenges, Taylor & Francis Group, 2023, 149.
8 Cooper v Stuart (1889) 14 App Cas 286.
9 Australia’s Constitution s51(xxvi) as enacted.
10 Australia’s Constitution s127 as enacted.
11 Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Report, April 1997).
12 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
13 Ibid.
14 Murray Island #2, above note 5.
15 ICERD, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
16 Murray Island #2, above note 5.
17 NTA, s223 (1)(c).
18 Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth).
19 UNDRIP, above note 1, Art 33.
20 J McCorquodale, “Aboriginal Identity: Legislative, Judicial and Administrative Definitions”, Australian Aboriginal Studies, issue 2, 1997, 24.
21 UNDRIP, above note 1, Art 9.
22 Ibid, Art 6.
23 Aboriginal and Torres Strait Islander People’s Recognition Act 2013 (Cth).
24 Murray Island #2, above note 5, [32]–[33] (Brennan J).
25 Commonwealth v Tasmania (1983) 158 CLR 1 (The Tasmanian Dam Case); Love, above note 3; Thoms v Commonwealth (2020) 270 CLR 152.
26 Shaw v Wolf (1998) 83 FCR 113; Love, above note 3.
27 First Nations National Constitutional Convention, Uluru Statement from the Heart (Statement, 26 May 2017).
28 Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill, Sch 1, s129.
29 Ibid.
30 Australia’s Constitution, s128.
31 J Beazley, “Indigenous communities overwhelmingly voted yes to Australia’s voice to parliament”, The Guardian (October 2023) <https://www.theguardian.com>.
32 Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic).
33 Commonwealth, Parliamentary Debates, Senate, 6 December 2023, 6646.
34 Declaration on the Rights of Indigenous Peoples Act, SBC 2019, ch 44 (DRIPA); Reference re An Act respecting First Nations, Inuit and Métis Children, Youth and Families [2024] SCC 5.
35 What is meant here is equating Aboriginal and Torres Strait Islander with that of First Nations. This is a change of terminology, but one that does not really bring any substantive benefit.
36 The USA’s use of the term “First Nations” with respect to Native Americans holds that they possess domestic dependent sovereignty.
37 Coe v Commonwealth (1979) 53 ALJR 403 (Coe).
38 The term “First Nations” as used in Turtle Island/North America/USA reflects a meaning in that jurisdiction of Indigenous peoples holding a lesser form of sovereignty, or one that is dependent on the “fully sovereign government of the USA”. In Coe, the High Court did not accept the notion that Indigenous peoples possess even this lower form of sovereignty. Indigenous peoples should therefore be careful of accepting terminology that moves from full claims to sovereignty to something that appears to be uncertain at law.