Conduct of laws: native title, responsibility, and some limits of jurisdictional thinking.

• Jurisdiction: Australia
• Author: Dorsett, Shaunnagh
• Date: 01 August 2012

[It is now twenty years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the first question that is addressed in the meeting of laves in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and official forms of responsibility for lawful relations.]

CONTENTS I Introduction II Jurisdiction III A Meeting of Jurisdictions and of Laws IV Conduct of the Meeting Place V The Quality of Meeting VI The Meeting Places of the Jurisprudent VII Concluding Comments I INTRODUCTION

It is now 20 years since the High Court of Australia designated 'native title' as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2] ('Mabo'). (1) Common law jurisprudence, however, continues to struggle to create an appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It has struggled, in short, to create an appropriate meeting place of laws. It is timely, then, to return to the first question that is addressed in the meeting of laws in Australia, that of the jurisdictional authorisation of laws and the quality and conduct of the meeting place of law. In this essay we address this concern as a question of the conduct of lawful relations.

An image of the meeting of laws, and of a meeting place of laws, can be quite direct and simple. It could be imagined as two people meeting, acknowledging, and engaging a lawful relation. It can also be more mediated. In Western legal idioms, a meeting place can be figured through the arrangements of the sacred meeting places of religious life, or the deliberative, affective, and profane meeting places of the court, the theatre, or the market of the city or state. It could also be the diplomatic space of meeting or the 'free' space between laws that has characterised some accounts of international law. The image of the meeting place is valuable, even if it is difficult to concepttualise, because it allows us to understand something of the meaning of the conduct of lawful relations.

For those who live with the idioms of the common law tradition there are a number of established forms of engagement of the conduct of lawful relations between peoples and laws--such as through treaty making or through dispossession. Relations between laws could be phrased in terms of a very limited engagement--where engagement is simply a matter of how one jurisdiction satisfies itself of the relevance (or not) of another. An engagement of laws could also be concerned with the processes, protocols, and procedures that create and arrange relations of laws. In the case of the engagement of laws, it could mean the acknowledgement of and contribution to the creation of a middle ground, or a meeting place, of laws. While a meeting point of law might suggest the observation of the meeting of laws, a meeting place directs attention to the understanding of the quality or character of the meeting. In this essay we track the formation of a meeting place of law in terms of practice of jurisdiction and the conduct of lawful relations. Specifically, this essay addresses the Australian common law understanding of the meeting of laws as one of a meeting of jurisdictions. We concentrate on the ways in which speaking and acting in the name of law are related to the ways in which we take responsibility, as jurists and jurisprudents, for both the interior or inner experience of the common law and the outer, practical reality of law. (2) The specific engagement of this essay is with the meeting of laws established through the regimes of native title and specifically s 223 of the Native Title Act 1993 (Cth) ('NTA'). We give shape to the forms of conduct of lawful relations across three registers.

The first register joins the meeting of laws to a longer tradition of Anglo-Australian common law elaborating the meeting points of laws in Australia. In many ways s 223 of the NTA has become the exemplary point of engagement of the common law with Indigenous laws in Australia. However, that section, and native title legislation in general, belongs to a longer--plural--history of jurisdictional engagement of laws. The second register is jurisprudential and is concerned with the crafting of lawful relations. Native title jurisprudence has established the repertoires, ideas, and institutional arrangements through which the meeting of laws and the maintenance of lawful relations are conducted. We draw out the sense in which s 223 is concerned with the conduct of lawful relations by attending to the grammar of legal relations. Native title is often phrased in adjective terms as being concerned with proof and procedure. Here we point to the ways in which it might be considered as adverbial and concerned with the quality of conduct. Native title does not describe or name the conditions of the meeting of law, it provides the mode or manner of the conduct of the meeting of law. A third register of the meeting of laws is addressed in terms of responsibility for the conduct of law. It returns responsibility for the conduct of the meeting of laws to the office of the jurist and jurisprudent as these offices have specific obligations for the care of the shape and conduct of law. (3)

In drawing out the jurisdictional character of native title and an ethic of responsibility appropriate to such forms, we are not directly concerned with establishing new normative relations. We are more concerned with the modes and manner of relating of one law to another and of the shape given to the engagement of common law and its jurisprudence with Indigenous law and jurisprudence. (4) We do so to draw out the sorts of commitments made within common law jurisprudence to the conduct of relations in the meeting of laws. We present these questions of conduct in terms of lawfulness rather than, say, dignity, in order to emphasise the ways in which questions of conduct involve questions of institutional practice, judgment, and responsibility.

II JURISDICTION

This article addresses the conduct of the meeting of laws through the concerns of jurisdiction. Jurisdictional thinking can be considered as engaging with questions of the authority of law (whose law is to be followed?) as well as the authorisation of lawful relations (who or what belongs to law?) and the conduct of lawful relations. Viewed from the perspective of the common law tradition the meeting of the common law and Indigenous laws uses all three of these aspects of jurisdiction. (5)

A starting point for our thinking about jurisdiction comes from Peter Rush, who writes that jurisdiction 'refers us first and foremost to the power and authority to speak in the name of law and only subsequently to the fact that law is stated--and stated to be something or someone.' (6) From this, and from the word 'jurisdiction' itself, we can take two things. First, jurisdiction connotes authority. (7) Second, it is the act of speaking--of declaring the law. 'Jurisdiction' is derived from the Latin ius dicere--literally 'to speak the law'. Thus, jurisdiction is the practice of pronouncing the law. Jurisdiction engages law in a variety of ways. Perhaps most importantly, it gives us both the form and shape of law and the idiom of law. Jurisdiction in this respect forms a part of the discourse of sovereignty.

Importantly, jurisdiction can also be viewed as part of the technical ordering of lawful relations. Jurisdictional knowledge is, in a sense, the practical knowledge of how to do things with law. Thus, in this article we use jurisdiction in a rather more expansive jurisprudential mode than is usually found in doctrinal formulations of jurisdiction in procedural and administrative law. Jurisdiction is not only concerned with the authority of law but with the authorisation of lawful relations. The practice of jurisdiction is part of the technique and craft of legal ordering and the art of creating legal relations. For present purposes the terms practice and craft simply indicate that jurisdiction is not just a descriptive concept--but rather that jurisdiction, through institutions, actively works to produce something. So, as a practice, the idioms of jurisdiction concern the means of ordering law. For example, they create the practical organisation of the business of the courts and the management of the scope or extent of authority to judge. Without such modes of thinking about law there would be no way of engaging with law as a practical activity with purpose. Considering jurisdiction in the crafting of lawful relations shapes our approach to the meeting of laws.

Thinking jurisdictionally is not a new approach to thinking about relations between laws. As we will discuss further, the common law has long understood the ordering of its relations to other laws as being a matter of jurisdiction (for example, common law and ecclesiastical law or common law and forest law). Likewise, viewed from this perspective native title and its administration can be understood in terms of the conduct of a meeting of law. Such an approach focuses on how laws meet--here the common law and Indigenous laws--rather than on the doctrinal content of native title. The...