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by Carl D’Souza
There have been various campaigns for a treaty between the Indigenous and non-Indigenous peoples of this country since the 1970s. The latest campaign began at Corroborree 2000 and has incited a flurry of debate. However, this debate has most often been conducted amongst academics, lawyers and politicians and, as a result, has left many Indigenous people with the view that the treaty is an elitist and irrelevant project. In contrast, this forum has sought to conduct a non-legalistic, grassroots debate between a diverse range of Indigenous and non-Indigenous commentators. This article aims to provide a brief overview of some prominent arguments within the treaty discourse as a background to the forum.
Put simply a treaty is an agreement between two or more parties who seek to have their relationship spelt out in writing. A treaty is analogous to a business contract. It could set out the roles and responsibilities of federal, state and local governments on the one hand, and Indigenous communities on the other when dealing with issues directly affecting Aboriginal people.
There are many debates about what a treaty is. Opponents of a treaty between Indigenous and non-Indigenous peoples argue that a treaty can only be made by two independent nations, and cannot be made between sections of the Australian population. In contrast, proponents argue that Indigenous ‘nations’ have retained their separateness or ‘sovereignty’, and therefore a treaty can be signed. Alternatively, treaty supporters advocate agreements that are similar to treaties but can be made within a nation, such as a ‘compact’. There are also debates about how a treaty will be enforced. A treaty could be enforced through international law, or by being made part of the Australian constitution, by being turned into legislation, by being signed as a contract, or many other options.
In fact, everything about a treaty is yet to be decided. Therefore, the best answer to our question is that a treaty is whatever the Indigenous and non-Indigenous peoples of this country make it. It is important to recognise that a treaty is not just a document, it is the process through which Indigenous and non-Indigenous peoples reach agreement on that document. It is during this process of education, consultation, dialogue and negotiation that debates over the content of a treaty must be resolved.
Some commentators argue that a treaty should serve merely a symbolic purpose, whereas others believe it should contain practical measures. A treaty may produce minimal outcomes. However, it is important to understand that a treaty also has the potential to effect fundamental change upon Australian society and the daily lives of Indigenous peoples. For example, a treaty could give Indigenous peoples control over their affairs, make reparations to the stolen generations, improve education, health and housing, reduce deaths in custody, strengthen native title rights, ensure the survival of Indigenous cultures and much more.
Are the current processes of ‘reconciliation’ between Indigenous and non-Indigenous peoples enough? What are the advantages and disadvantages of a treaty compared to reconciliation? In answering these questions we must acknowledge that there is disagreement about what constitutes ‘reconciliation’ and how to achieve it. Conservatives argue that whereas reconciliation aims to achieve ‘one Australia’, a treaty will divide the nation. Furthermore, they argue that a treaty would provide ‘special rights’ to Indigenous peoples and create inequality between Indigenous and non-Indigenous peoples.
However, proponents of the treaty point out that Howard’s argument contains the fiction of an existing equal and cohesive society, and conceals the reality of the inequality that Indigenous people have always suffered. In fact, they argue that a treaty will unify Australia by bringing those who are already separated into a changed relationship based upon mutual understanding and respect. A treaty can rebuild a relationship between Indigenous and non-Indigenous people that has always been antagonistic and unequal.
In contrast, opponents of a treaty argue that reconciliation has been progressing adequately in this direction and the call for a treaty is unnecessary at this time. However, proponents argue that true reconciliation requires the comprehensive identification and settlement of ‘unfinished business’, which includes far more than current reconciliation initiatives address.
Some reconciliation activists argue that it is enough that the goodwill expressed by Australians is developed in the hope that this will lead to change in the future. However, treaty supporters argue that goodwill is not enough, and it must be turned into tangible and comprehensive outcomes for Indigenous peoples through a treaty.
The Howard Government claims it is pursuing ‘practical reconciliation’ to achieve these tangible outcomes. Howard’s policy has been criticised as an attempt to give Indigenous people basic citizenship rights, such as adequate healthcare, and make it look like something special. The policy is based on the argument that because Indigenous peoples are citizens they have entitlements equal to those of non-Indigenous citizens. However, lived experience of Indigenous peoples clearly shows that citizenship does not guarantee equality. Proponents of a treaty argue that mere citizenship rights are not sufficient to undo generations of systemic discrimination and exclusion. It is not enough to restore Aboriginal people to their rightful place as the first peoples of this country. What are advocated are the far more extensive and comprehensive measures of a treaty, which have the capacity to transform social, economic and political relations in Australia.
‘Practical reconciliation’ does not address the systemic and institutionalised aspects of Indigenous peoples’ disadvantage. Another way of saying this is, increasing expenditure on ‘welfare services’ is not going to resolve anything because it is the ‘welfare services’ that are the problem. ‘Practical reconciliation’ suffers from similar defects to all previous governments’ paternalistic ‘welfare’ policies. It falls far short of a treaty’s potential to enable Indigenous peoples to look after themselves and decide for themselves how they will live. As Neville Bonner once stated, what Indigenous people should be seeking is not more charity but rather a ‘true and due entitlement’ to reverse the effects of dispossession.[1]
Some commentators argue that popular support for reconciliation by the non-Indigenous public does not extend to a mandate for a treaty, and calling for a treaty now would damage reconciliation. They argue that reconciliation is one ‘step’ towards a possible acceptance of a treaty in the future. However, the objectives of reconciliation are not only much less ambitious than a treaty, but in some cases are of a fundamentally different character, and therefore cannot form a step towards a treaty. For example, proponents of the treaty support ‘special rights’ for Indigenous peoples in addition to citizenship rights which all Australians have, and many supporters of reconciliation do not.
Such ‘special rights’ can significantly improve Indigenous people’s lives, and include native title rights and the right to self-determination. The High Court in the Mabo decision[2] accepted the notion of special rights when it declared that native title is a unique entitlement deriving from Indigenous customary law. However, special Indigenous rights are not adequately recognised nor protected by the Australian constitution or existing legislation. For example, the constitution, written by racist forefathers, gives the Federal Government a ‘races power’ that allows it to enact legislation specific to any race. The Government can and has used this power to diminish the rights of Indigenous peoples.
Furthermore, any special rights Indigenous peoples have can be legislated out of existence by a hostile government or interpreted down by the courts. For example, when the Mabo case recognised native title the Federal Government used legislation to severely restrict its ability to deliver real outcomes, and subsequent court decisions have limited it even further. A treaty has the potential to give Indigenous rights greater protection from erosion and breach by hostile governments. The identification and codification of specific rights in a treaty will give Indigenous peoples a legal claim to rights which they can enforce through the courts or another arbitration mechanism.
Two valuable special rights that a treaty could recognise are the right to sovereignty and the right to self-determination. ‘Sovereignty is the exercise by a people – whether clan, tribe or nation – of control over a particular territory through their political and social institutions’.[3] Proponents of a treaty argue that Indigenous peoples retain the right to sovereignty over Australian lands and a treaty could recognise this. This means that some Indigenous peoples may gain total control over their land without interference from Australian governments. This claim of sovereignty is justified on the basis that Indigenous people have never consented to giving up their sovereignty to the Australian nation, and sovereignty has never been extinguished in any other way. However, all Australian governments vehemently oppose the recognition of Indigenous sovereignty and argue that it was abolished when Indigenous peoples were made citizens of Australia. In defence of their position, treaty supporters argue that whites alone decided to make Indigenous people citizens, and therefore Indigenous peoples never consented to being part of this foreign country.
Political realities mean that it is unlikely that Aboriginal sovereignty will ever be recognised. That is why many proponents of the treaty focus on the right to self-determination. Self-determination means that the Australian government allows Indigenous peoples to have some say in the management of their communities whilst remaining within the control of the Australian State. The scope of the independence of Indigenous communities could be set out in a treaty. The rights of sovereignty or self-determination would enable Indigenous control of Indigenous affairs. Indigenous institutions could then implement appropriate governance, based on Indigenous culture, values and social goals. This will create fundamental positive change in Indigenous societies. An example of the potential benefits available is community self-policing using customary law, which will reduce deaths in police custody.
It is apparent from the views expressed in this treaty forum that there are many Indigenous people who oppose the treaty campaign, or at least have concerns. Local Indigenous communities are concerned that treaty negotiations will not adequately represent their interests. The concern is that prominent national leaders are not representative of local communities. Communities are afraid that a committee handpicked by the government or a body that is part of the government bureaucracy, such as ATSIC, will not represent them effectively in a treaty process. It has often been the case that attempts to represent Indigenous communities have been based on the assumed existence of national unity and have ignored the autonomy of individual tribes.
Another concern is the imposition on Indigenous communities of European consultation and negotiation frameworks. Such frameworks often do not have an appreciation of Indigenous history, social structures and traditional methods of decision making. Indigenous women are particularly concerned about their under-representation. The patriarchal anthropological view that informs western understanding of Indigenous societies leads to the assumption that Indigenous men are the landowners. As a result, European frameworks for consultation and representation of Indigenous communities tend to favour men and ignore women.
Indigenous communities are diverse, and another concern is that a national treaty will not be able to satisfy specific local needs. This has prompted calls for local and regional treaties. This complicates the treaty process but is not impossible to achieve. A national treaty could be used as a standard setting document for local and regional treaties.
Another concern is the timeliness of outcomes. Local Indigenous communities have immediate needs to alleviate their hardship. It is difficult for them to see how a very complicated piece of law that is going to take many years to create is going to get them a wheelchair for their grandfather, or hot water in their house. The concern is that a treaty is an elitist project without any timely and tangible outcomes for their communities. However, treaty supporters argue that people who dismiss a treaty because it will not yield immediate results misunderstand the nature of a treaty and what it can achieve. A treaty is a long-term structural solution, which has the potential to fundamentally change the Australian nation and the daily lives of Indigenous communities. Furthermore, campaigning for a treaty does not mean that more immediate objectives should be set aside. Nevertheless, treaty proponents argue that Indigenous people should not become impatient and accept quick fix and piecemeal solutions at the expense of their self-determination and sovereignty.
Commentators are also concerned that even if a treaty does recognise special Indigenous rights, they will follow the disappointing course of native title rights recognised by the Mabo case. The capacity of native title to provide tangible outcomes has been severely limited by government legislation and subsequent High Court cases. Native title representative bodies have been chronically under-funded, and outcomes have been slow, time consuming, expensive and piecemeal. Negative experiences with the Native Title Act 1993 (Cth) are a source of scepticism among Indigenous people about legislated solutions negotiated with governments. In contrast, proponents of the treaty are hopeful that a treaty could be used to address some of the defects in existing native title processes.
Many Indigenous people feel there is little point campaigning for a treaty because there is very little chance of success in the current political climate. Commentators have pointed out that a treaty will only be possible if supported by public opinion and political will. Opponents have emphasised the great danger of the Howard Government entering a treaty negotiation process in bad faith, with the intention of diminishing Indigenous rights. The result would be analogous to the legislative asphyxiation performed by Howard on the Native Title Act 1993 (Cth). However, if Indigenous peoples over the last 200 years had waited for governments to be amenable to their rights before they campaigned for them, they might still be waiting today. Proponents of a treaty are hopeful. The recalcitrance of the current Government incites them to embark on a campaign to educate and change the attitudes of the non-Indigenous public.
Will a treaty be an instant panacea for all the woes of Indigenous peoples? No. Will it be easy to negotiate a treaty? No. Is the treaty the only way forward? Maybe, and maybe not. However, before we dismiss the idea of a treaty there must be much more consideration and debate, especially at the grassroots level. Spending time discussing a treaty is worth the trouble because an effective treaty has the potential to fundamentally change the lives of Indigenous peoples and resolve a great deal of unfinished business.
Carl D’Souza is an editor employed by the Indigenous Law Bulletin and a law student at the University of New South Wales.
[1]William Jonas, ‘Reflections on the history of Indigenous people's struggle for human rights in Australia - What role could a treaty play?’ (Paper presented at the Treaty - Advancing Reconciliation Conference, Murdoch University, Western Australia, 27 June 2002).
[2] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 107 ALR 1.
[3] Michael Dodson, ‘Sovereignty’ (2002) 4 Balayi: Culture, Law and Colonialism, 13.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2002/67.html