P. G. McHugh, ‘Sovereignty in Australasia: Comparatively Different Histories’, Legal History 13 (2009)

No abstract; snipping here:

The historiography of the Neglected Tribal Sovereigns and Missed Opportunity seeks to put Australian history onto an axis of what I will be calling competitive autonomies. This, as I explain below, is a history of the sovereign-self narrated by reference to its engagement with other sites of political autonomy. It is not necessarily, though often is, a type of historiography framed in terms of a contest between claimed and distinctive sovereignties, but certainly it involves an encounter between distinct political communities with their own patterns and traditions of telling that community’s presence and journey through time and a particular geographical compass (usually meshing with the boundaries of the juridical state). To the extent that Anglo-settler Australia has generated a history of its sovereignty it has largely been a solipsistic one that does not engage with Aborigines as distinct political bodies. Through construction of a past in which there is political dialogue, engagement and deal-making between settler and Aboriginal polities, the implicit mission (I suggest) of Reynolds and Clendinnen is to facilitate a contemporary pattern of renewed pluralistic political relations. In this the construction of Aborigines into quasi-sovereign polities is not regarded as historically problematic. Further, since the history of inter-community political relations did not materialize, it must be constructed as a history of possibility that was either neglected or lost (but, inferentially, may be resumed). Australian history is being used implicitly to license a present state of affairs and to neutralize the feeling of strangeness that arises from a sense of national embarkation upon a ‘new’ history. The aim, as the very title Dances with Strangers itself suggests, is reassurance and validation, entrance into familiarizing choreographed ritual. That is hardly a subversive aim and one with which many of us have instinctive sympathy.

If that is the implicit mission of Reynolds and Clendinnen then it resonates with the historiography of New Zealand’s Waitangi Tribunal in the 198os. At that time, the jurisdiction of the Tribunal was in the process of being extended from the hearing of contemporary claims against the Crown to including historical claims. This extension of the Tribunal’s jurisdiction occurred in 1985 after the Tribunal had issued several reports that highlighted the artificiality of the distinction between ‘historical’ and contemporary claims. Moreover, these Reports had been so convincing and powerful in their description of the Crown’s cavalier treatment of Maori that wider public sympathy was secured. These Reports set the stage for the retrospective jurisdiction. They described the Treaty of Waitangi presentistly as a contract with a very contemporary doctrinal ring and by which the fairness of the Crown’s relations with Maori historical and contemporary fell to be assessed. The pre-contractual period was characterized as a ‘golden era’ in which Crown and tribe engaged in commercial and other relations on a basis of relative parity and political respect. The Tribunal was using an historiography that implicitly contemplated the renewal of political relations between Crown and Maori, comfortingly authorizing its own position as broker of the renewed and highly intensified dialogue that would come with the extension of its jurisdiction. As I will explain, that historiography has disappeared in the substantial body of Tribunal Reports since those early path-setting ones. But the history of renewed political relations that the 198os’ Tribunal was juxtaposing in retrospect and prospect did commence in the 199os. Unsurprisingly, it has been a modern history that it was easier to foreshadow expectantly in the mid-t98os than to experience so bumpily in the following decade and after.