Aboriginal Provisional Government A Treaty as a Final Settlement? July 200
A TREATY AS A FINAL SETTLEMENT? Australia must reconsider its domination of Aboriginal people,and Aborigines must explain how self determination can replace that domination. The Aboriginal movement usually has single issue campaigns. It used to be land rights. The focus today is on either reconciliation or native title. They get put to one side while we lobby for an increase in the budget for indigenous affairs, or while we seek recognition of customary law. One issue at a time. Rarely have we put together a package of solutions. The treaty debate will pull all these issues together. Or more accurately, it should. A treaty connotes a final settlement, a putting to an end of piddling around the edges. The call for a treaty represents a fresh approach; a rejection of one issue at a time; and importantly sounds like a final settlement of outstanding issues. Of course Aboriginal people might not want a treaty. Proper consultations might reveal that a treaty is not seen as the best solution. This possibility of there being something better than a treaty effectively reduces a treaty, or its alternative, to being a means to an end. But what is that end? The Aboriginal vision There are many grand principles, and policies, presented as the indigenous vision. Often international norms like All people have the right to self determination and the right to decide their own destiny are used to describe the Aboriginal vision. But these principles represent entitlements, not a vision. These entitlements cannot take the place of a carefully crafted vision by Aboriginal people of where they hope to be. We do not have anything that ordinary people can understand- something that translates into a picture in our minds of the type of society Aborigines desire; how future political decisions are to be made and indeed, who is to make those decisions. Is it inevitable that Aborigines will become entirely assimilated with Australians, or do Aborigines want to resist that at all costs? What land and resources do
Aborigines dream of having, or is that less important than getting a good education and jobs for their children? Do Aborigines want representation in the parliaments or autonomy on the ground? And so on. The earlier the Aboriginal ambition is stated, the quicker we can plan how to realise that ambition. That is the immediate benefit of the treaty debate: it squarely challenges Aboriginal people to declare our hopes for our future. You can t have a treaty until you know where this whole thing is going. I cannot recall any previous proposal being so dependent on Aborigines declaring their hand. Usually Aborigines have to wait for governments to make up their minds. Not this time. The ball is squarely in the court of Aboriginal people. It s a great feeling. The treaty idea provides the needed focus. A treaty summons the bigger picture. The bigger picture requires deeper thinking, creative thinking. The Aboriginal vision will emerge from those ideas. And when it is spelt out, then we can plan. I look forward to participating in those community discussions. That is where we will find the answers about our hopes and aspirations. But in a nutshell, there will be only three choices. One is for assimilation. The pressure is on for us to assimilate. Sure, we can still identify, do our dances and play the didgeridoo. But the heart of official policy is the encouragement for Aborigines to make it individually. Government programs for individual equality means Aborigines have the same education, same jobs, mainstream services and being just like other Australians. In fact, the more we imitate white behaviour, the more successful we are seen to be. In our manner of dress, the way we speak and our acceptance of the values of white Australia. Government policy is aimed at making the life of the individual Aboriginal better. Emphasis is on education, jobs and training, and housing. There is nothing wrong with helping individual Aborigines. But there is something wrong when that help is at the expense of the collective rights of Aborigines. Unchecked, the policy can lead to the gradual demise of a people. But only if the people accept their fate. The second choice, sometimes described as special rights within the political life of Australia, is little more than a variation of the first. Under this model, the existing political and legal systems are seen as
paramount and legitimate. It is those institutions that are called on to declare whether collective Aboriginal rights exist at all, and if so, to what extent. Native title was declared by the courts, and politicians lobbied for complementary legislation. The highest forms of self determination claims under this approach often seek local or regional autonomy, similar to local government powers. In addition, individual rights to share in the benefits of Australian society are sought, leading to a mix of collective and individual rights. Both ATSIC and the Reconciliation Council adopt this second approach. The assimilation and the special rights choices have more than one thing in common. They confine the Aboriginal destiny to be inextricably caught up with white Australia. They accept the right of governments to govern, and Aborigines the right to be governed. 1 The rationale for this model is not apparent, but it does seem pragmatic, and sits well with the Aboriginal leadership of the last decade or so. As I have said, the choice is for Aborigines to make, and adoption of either of these first two options means there is no need for a treaty. If individualism is to be the dominant factor the current state of affairs can be left in place. There would be no need for a treaty because the program of emphasising individual needs at the cost of collective Aboriginal rights, is already in place. Nor is a treaty needed to give Aborigines special rights within the Australian political system. This can be achieved through either legislation, a bill of rights or by constitutional change. For me, the nature and character of a treaty that deals with the fundamental dispute between Aborigines and white Australia, is clearly political. This is the third avenue for an Aboriginal future. Ownership denied, sovereignty, the right of Aborigines to choose their destiny and seek compensation for the last 200 years of nightmare; these issues question the domination of one race by another; one that seeks to end the domination of one people by another; it is a call for a political settlement. This assessment might frighten many who prefer to see Aborigines as a social problem. Australia has had trouble coming to grips with its past. Still today people talk of Aboriginal prior this and prior
that, as if the rights legitimately disappeared the moment whites invaded the country. And the prior rights referred to are somehow diminished. We didn t own the land, they say, we only occupied it. If we Aborigines are to consider our vision, white Australia is obliged to face its responsibilities. Expecting a treaty to compound the unjustifiable domination of Aboriginal people shows a closed mind. A nation not being open to ideas, is a stagnant nation. It would be an immoral base for a nation. White people have built a prosperous, democratic nation. A nation built on the lands of Aboriginal people. A nation that rejected external British rule over the people of the colonies. A nation that treasures the collective pride of being Australian. But the cost to Aboriginal people has been enormous. The effects of dispossession have reduced us to beggars in our own country. The domination of our people by yours has made us dependent. We are a dysfunctional people as a result. Australia can carry on without a treaty. We probably cannot. There are no economic reasons compelling Australia to come to the negotiating table; no political imperatives; they hold all the cards. But what sort of a nation would turn their back on payment of a debt because of the inability of Aborigines to enforce the debt? A nation that can only acknowledge its achievements, and pay lip service to its debts, lacks a moral base. There is also guilt: Australians are guilty of dispossession for it is they who hold our lands; it is they who dominate us; it is they who hold our future in their hands. There is a need to cleanse the nation of its past, and seek legitimacy for its future. A treaty could establish the political relationship between white Australia and Aborigines. It could lay down a political framework from which indigenous peoples may begin the long haul towards a better future. That treaty could also define the limits of white domination of indigenous peoples. How could a treaty address these issues? This type of settlement would need to return ownership of crown land areas to Aboriginal people, as well as designated sea areas.
On those lands Aborigines would have the choice to either establish their own government, or opt to be part of the Australian parliamentary system. If the latter, designated seats in parliament, or local autonomy, are the sub- choices. Developing an economy, based on income derived from crown lands is an alternative to a joint economy run with state governments. If the states and Aborigines jointly managed crown lands, the trade off would be Aboriginal access to state revenues. Depending on the location, Aboriginal law could be the law of the land. I am sure the capacity to plan for social and community development would be seen as important for local communities. If this type of model fitted the Aboriginal vision of a future, the treaty would not need to be overly detailed. It would not spell out what was to be done: it would simply provide the authority to do it. Take education for instance. One of the many inadequacies of the school curriculum is that it is based on white/european values. The history of the pioneers of Australia, and the founding of the nation may be important to the majority. But not to Aborigines. It is more likely to be a sore point, seen as a subtle form of gloating. The treaty might provide for Aboriginal communities to be able to design or alter curriculum, but the treaty would not say what the curriculum should be. That would be left to local people to act, if they wished. The power given under the treaty might allow for replacing white history with a history of the Aboriginal struggle for justice, raising awareness of our political champions like Oodgeroo Nunuccal ( Kath Walker), Charles Perkins, Kevin Gilbert and Neville Bonner. The effect would be to give our children a more relevant and positive view of their history, and for non-aboriginal children another version to think about. A treaty with Aborigines will invoke past rights as well as look to the future. The rights we once had have been forcefully taken from us. And the lifestyle we were once comfortable with has been rapidly changed by the actions of others.
Aboriginal people owned the whole of the continent before the invasion. There were differences between the tribal groupings but those differences were outweighed by the similarities. We were one people made up of many tribal groups. We were, in todays language, a nation of people. We were a sovereign people. This background is particularly relevant to a treaty. If we were sovereign people then, we must still be today. The distinction between the existence and the exercise of a right is paramount. It is true we have been prevented from exercising sovereign rights over the last two centuries. But a right is not lost just because it has not been able to be exercised. If a thief steals your car, you lose the ability to drive it. You do not lose the right to the car just because someone else is driving it. When the car is recovered, previous rights of the owner are restored. And so it is with past Aboriginal rights such as sovereignty. Therefore Aborigines can make a treaty with the Australian government as an equal, not as a subordinate. And the basis for certain areas of lands being returned under the treaty is wrongful dispossession of ownership. Return of land through a treaty avoids the indignity of Aborigines having to justify why certain lands are to be returned. The principle governing the making of a treaty is that the past created rights, and those rights form the foundation of a negotiated treaty. The Australian government takes a very different view of the relevance of the Aboriginal past. For the government, facts about Aboriginal connection with the land, and how the white invasion and subseqent domination affected Aboriginal people, is a mere matter of influence on current policy. For them, the past does not create rights for Aborigines, it is only influential. The government position represents the counter argument about the rationale for a treaty, arguing there is no rationale at all for a treaty with Aborigines. The current federal government alternative to a treaty is predictable: it pushes its practical reconciliation line, and avoids talk of rights. For its part, the ALP will have a bob each way, saying that party is interested in the idea but will want to see the detail before committing either way. It is easy to see why the ALP remains in opposition.
That s all right. The reconciliation process took ten years to unfold. Realistically, we have to expect twice as long for the concepts and solutions in a treaty to be understood and embraced. So the positions of political parties needs to be seen in context. The pressing question is not about political posturing but about ideas. If the politicians speak as I predict, then for the purpose of the treaty discussion they are simply saying they have no ideas and cannot lead. They will be conceding that the debate has to be developed by others. Those who come to this debate with a position rather than an idea, have misunderstood the task. Out of this disagreement about the effect the past has on Aboriginal entitlements comes a real complication for a treaty: the matter of sovereignty. The Australian government position is that it, and it alone, represents the sovereign authority of Australians. For the government, Australians includes Aborigines. In Australia there can be only one sovereign, the government argues, and the making of a treaty with Aborigines and Torres Strait Islanders would undermine that position. For that reason alone the government is opposed to a treaty with indigenous peoples. That position might be different if indigenous peoples agree the sovereignty of the Australian government is indissoluble, and the treaty acknowledges that. On the other side of the coin most Aborigines would be unlikely to give up anything, including a right not exercised for so long a period. With sovereignty, it is unlikely Aborigines would agree to the condition required by the government to enter into a treaty. While the past spells out the basis of current and future entitlements, it has to be recognised that the nature of a treaty involves compromise. The past rights we had open up the possibilities for our future, provides relevant information on which to base decisions and creates a political base from which a treaty can be entered into. The past is not a yoke around our neck: it opens our minds to the possibilities and gives our cause a focus. This point equally applies to governments, not just Aborigines.
The competing claims and positions on sovereignty could be dealt with in a way that enables both sides to maintain their high moral positions while advancing an agreement. Statements external to the treaty document could allow the Australian government to maintain the view there is only one sovereign. At the same time the Aboriginal movement could maintain its people have the right to exercise self determination because they are a sovereign people. The process of self determination includes the right to establish an Aboriginal nation (or nations) politically independent of Australia. In exchange for the government making a treaty, Aboriginal people could agree to suspend any right to pursue self determination outside the treaty terms, but only so long as the treaty was honoured. This overcomes the lessons to be learned from treaties made elsewhere that have been watered down by decisions of governments and white courts. Under this exchange a treaty could be silent about sovereignty. At some stage in the development of treaty discussions, the maps will need to be brought out, all rights Aborigines want to exercise spelt out and the relationship between Aborigines and Australians clearly defined. For practical purposes, regardless of the terms of the treaty, there would be a great interdependency between black and white. For this reason changes, for example, to education and training, employment prospects through to policing matters would all have to be carefully examined to make them workable. But all those things tend to flow from broad agreement on what a treaty is intended to achieve, and where it can help indigenous peoples advance to. So in a sense, development of an Aboriginal vision is more urgent than are the practical things a treaty would produce on the ground. This does not mean that problems needing urgent attention have to await the outcome of a treaty before they are addressed. The problems confronting Aborigines now demand urgent remedies. But we have to set aside the time to consider our collective futures so we are not forever wasting our energies putting out spot fires. We must win the battle of ideas. Our cause is a just one. Our quest is to convince others of the justice of our cause. To do that we must be the ones to lead the debate, by presenting ideas and challenging the old assumptions. If the test for white Australia is to be open minded and thoughtful, the task for us is to rise above our predicament and declare the solution. We must be prepared to answer the scary question - what will it take to satisfy Aboriginal people?
Should we win the battle of ideas there is the possibility of political change that could empower indigenous peoples in a meaningful way. The desired social change could come as a result of political change, not as a substitute for it. If the final agreement sat comfortably with Aboriginal people it would be the best cure for healing the pains of the past, and have much more meaning than an apology. Even if a treaty did not materialise the focus on indigenous rights will be a welcome change. Our minds can be opened to greater possibilities. The very discussion enables us to ignore the practical reconciliation agenda being shoved down our throats. It will also help identify steps that can be taken now by governments, and those small changes might set the pattern and climate for a treaty. We have nothing to lose. Michael Mansell 12th July 2002 1 Andrea Tunks Pushing the sovereign boundaries in Aotearoa ILB vol 4 1999, p 16