Indigenous Law Bulletin
by James Reynolds
My first writing covering the concept of a treaty between Indigenous people and non-Indigenous people was a group of muddled but largely interdependent thoughts. Initially I thought it important to define ‘treaty’. Using the Collins Oxford Dictionary, ‘treaty’ means a contract or agreement between two or more States.
I then considered the content of treaties by looking back at historic compacts between sovereign nations, such as the axis powers in World War Two, the surrender of these powers to the allies that ended the war, and then the Treaty of Waitangi. The content of these treaties involved mutual agreement recognising the sovereignty of each party, even in defeat, but also set down how their interests collided, and the manner in which this collision would be resolved.
Based on my limited understanding treaties are legalistic in nature, but are based on mutual respect between the signing parties. For instance, the British colonisers may have frowned upon the cultural practices of the Maori, but nonetheless respected them to the point that it was decided to make an agreement. Some would argue this reflected the results of the Maori wars, while other noted historians point out that the Treaty of Waitangi was made in the context of the British Crown’s Australian experience. In any case there was mutual respect between the parties.
The second important characteristic of treaties is that each party agrees to give way to the other’s activities, or to support each other’s activities – like determining permanent distributions of land. In other words a treaty is like an Indigenous Land Use Agreement except it is made between institutions which represent groups of people. For instance, take the various agreements between North American Governments and Native Americans during the Indian wars. These agreements largely consisted of Native Americans giving right of way to the settlers in exchange for having their ownership of some lands recognised by law.
Using these characteristics to examine Australia’s opportunity for treaty making it is apparent that the current political institutions, which represent non-Indigenous people, are unable to display the maturity needed to make a treaty. For instance, consider Howard’s three terms as Prime Minister, during which he has consistently opposed any issue, law, case or policy that may have recognised Aboriginal rights. His amendments to native title law are his greatest victory, and similarly the defeat of attempts to hold the Commonwealth liable for the removal of Aboriginal children from their families in Cubillo, his sour relations with ATSIC (a government created body of elected representatives) and his performance at the Reconciliation conference in Melbourne. It is fair to say that Howard has opposed anything that may have advanced recognition of Aboriginal rights.
Therefore, an important element to treaty making – mutual respect - does not exist (and agreeing with Noel Pearson or enjoying Aboriginal dances and art is not the same thing).
Also consider the other characteristic of a treaty, the giving of way to each other’s activities or agreeing to provide resources to advance a mutual goal. In this climate and given Howard’s attitude, Aboriginal people may have to give way so much (like our experience in the native title industry) in order to gain so little.
In short treaties are made when groups of people understand one another, and agree that in order to make progress in the future they require an agreement that recognises this understanding and their interdependence. In Australia, from an Aboriginal perspective it may be the case that no treaty is the best treaty.
James Reynolds is of Gangalidda heritage from the Gulf of Carpentaria and resides in Brisbane. He has a Bachelor of Economics degree and a Masters of Business Administration degree, both from the University of Queensland. James is also a director of the Black Peppers Gallery in Brisbane.
 Native Title Amendment Act 1998 (Cth)
 Cubillo v Commonwealth of Australia  FCA 1213 (Unreported, Sackville, Weinberg and Hely JJ, 31 August 2001).