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Indigenous Law Bulletin

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Ella-Duncan, Marcia --- "A Personal Perspective on the Treaty by an Indigenous Sporting Great" [2002] IndigLawB 72; (2002) 5(21) Indigenous Law Bulletin 14

A Personal Perspective on the Treaty by an Indigenous Sporting Great

by Marcia Ella-Duncan

I suppose my opinion on a treaty could best be described as ambivalent. On the one hand I believe it is necessary to have a documented agreement that clearly articulates Aboriginal people’s inherent rights. On the other hand I am cynical about the government’s ability to honour any agreement. Let’s face it - this country doesn’t have a good track record in addressing the impacts of colonisation of our people.

For instance, take the Royal Commission into Aboriginal Deaths in Custody and the later memorandum of understanding that committed state and federal governments to actions designed to reduce the number of Aboriginal people entering the criminal justice system. By and large it is recognised that actions taken have failed to have the desired impacts. For example, the recommendations and agreed actions failed to address the underlying causes of our high incarceration rates, or adequately acknowledge the existence of racism throughout criminal justice systems. The reasons for this are many and we know it, so do governments. The point I am trying to make here is how good is the government (any so far) at taking effective action to address our issues? The answer is not very good.

Not only do governments fail to take appropriate action, they continue to hide behind warm, fuzzy rhetoric such as self-determination and community autonomy. I get extremely frustrated with this because these excuses are founded on paternalistic misconceptions. A good example here is the Aboriginal Land Rights Act 1983 (NSW) and its successor, the Aboriginal Land Rights Amendment Act 2001 (NSW).

These Acts established a representative structure of Aboriginal community management, and provided resources (ten percent of the State’s land tax over a period of 20 years totalling over $485 million) to acquire land for the benefit of our communities. The New South Wales Aboriginal Land Council’s mismanagement has recently been very well and very publicly documented. In response to this, the NSW Minister for Aboriginal Affairs says that he will not intervene (even though he has a legislated responsibility to act) because it will contravene the principle of self-determination.

My response to this is that the structure of our network of land councils is a white bureaucratic system that totally ignores the traditional (and contemporary) structure of Aboriginal families as individual autonomous communities. It further ignores the fact that colonisation forced us into an alien structure that we mistakenly call a community. Our land council networks are characterised by infighting and factionalism based on the aspirations of individual families. People say our communities are factionalised. They are not. What I like to say is that we have a cluster of individual and autonomous communities struggling to share scant resources.

So, the track record we have in this country of governments listening to our communities and providing the right mix of support at the right times causes me to be extremely cynical about the long-term effectiveness of a treaty.

On the other hand, I am the eternal optimist. I believe it is important to have high aspirations (I think this is a genetic thing to a certain degree) and that a treaty can and should be inspiring. I also believe that we have to start somewhere. We will never get full and inalienable land rights in this country – this land will never be returned to us. However, we will get recognition of our sovereign rights, we will get a form of land rights that satisfies us, and we will build our capacity to manage our own affairs with positive outcomes.

While I am optimistic, I am also realistic. I believe that it will take a great deal more maturity, both in our Indigenous communities and the wider community, before we will be ready for a treaty. We need to acknowledge this country’s complete history in order to develop a comprehensive understanding of the challenges facing us as a race and as a nation. Only then will we be able to adequately and appropriately prepare for our future. Hopefully it is a future in which we can truly say that we are equal.

Marcia Ella-Duncan is a former member of the Australian Netball Team and is presently employed by the New South Wales Environmental Protection Agency.


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