Daniel James
Treaty and the damage done

In the immediate aftermath of the stone-cold rejection of the Voice to Parliament and the constitutional recognition it entailed, there have been calls from all sides of the debate to initiate a treaty process now the Voice has fallen. Much as I believe people’s calls for a treaty are earnest and come from a place of solidarity and pragmatism, it must be pointed out that treaty is a very easy thing to call for but much harder to implement, especially in a country that has said it has little or no interest in Indigenous issues or willingness to address them.

There were myriad factors that saw the demise of the Voice. Perhaps hundreds of different issues or excuses enabled people to vote “No” in such an emphatic way. The ruminations by some on the left and the right, most notably Nyunggai Warren Mundine, that a Voice wasn’t the answer, that treaty is a much better process, didn’t go on to explain what the negotiation process for a treaty would entail. Of course, the fact he had no authority, no movement to draw on and no will from his conservative masters to instigate a treaty process was something that didn’t get much of a run in the media at a critical time in the debate.

Therefore, the idea of treaty hung in the air during the campaign like a tacit “plan B” if the Voice were to fail. I am a firm believer in treaty and have witnessed up close the enrichment the treaty process has brought in Victoria – but let’s not pretend the process of establishing a treaty is anything but a hard slog and predicated on a range of factors, even in the best of times, and these are far from the best of times. It’s too early to measure the amount of damage done between Blak and white Australia by this referendum campaign, but early indications are there is a deep and cavernous split between 3 per cent of the population and the majority who voted “No”.

The first thing required to establish a treaty process is good faith and there is very little of that going around at the moment. The battering Indigenous people received at the hands of their fellow Australians these past six weeks has been as disorientating as it has been hurtful. The unleashing of racist vitriol and hate speech by the conservative “No” campaign has left more than a mark – it has scarred individuals and communities alike. The sight of those who were happy to hide behind the coat-tails of Mundine and Jacinta Nampijinpa Price will not be forgotten for a long time. For those who saw it, the enduring image is of culture warriors such as Michaelia Cash, David Littleproud and Bridget McKenzie giggling and sniggering as Price claimed there were no ongoing impacts from colonisation, a statement they firmly believe but are too cowardly to utter themselves. The diminishment of the suffering of our ancestors, old people and all those among us who begin life so far behind the starting line because of intergenerational trauma, is unforgivable. You wouldn’t enter into a good faith negotiation with these characters over a fistful of marbles, let alone a treaty.

The referendum result and the way the debate was conducted has emboldened conservatives and culture warriors within the Liberal and National parties to do away with what they believe is special treatment for First Nations communities. Instead of a Voice, they want an audit.

Ahead of the result the Nationals in particular were spouting their credentials when it came to working with and representing the needs of our communities, while neglecting to take the logical responsibility for the appalling statistics that accompany any analysis of First Nations communities living in regional and remote areas. The Nationals seem to know best. God help us if it’s left to the collective wisdom of the Nationals to address Indigenous disadvantage.

Already, in the wake of Saturday, in Victoria, the so-called progressive state, a state that voted 55 per cent against the referendum, there are rumblings within the Liberal Party that could see the end of bipartisan support for the state’s treaty process, the most advanced of its type in the country. On the surface, it would seem there would be only a small chance of such demands coming to fruition, but all of the elements to lead a sustained campaign against the treaty process are lying dormant if the Victorian opposition can get its act together and try to capitalise on “No” sentiment. There is the largest-selling tabloid in the country and the wailing mouthpieces within it, happy to lend their noise to see the treaty’s demise, just as they did with ATSIC and the Voice.

In Queensland – the state with the largest “No” vote in the country and where an election is not far off – dousing the treaty process will be much easier. To that effect, the Liberal National Party opposition on Thursday announced its plans to abandon support for treaty.

Another key element of a treaty process is working out a way to negotiate one. This involves organising a representational structure able to negotiate on behalf of First Nations communities, a body that can voice the concerns and wants of those communities to not only parliament but to executive government. Obviously, the Voice could have been the start of that process. Now any representative body pieced together by Indigenous Australians will be at best legislated by government, at worst appointed by government. This risks being a body funded to give only the advice government wants to hear. Mundine must be salivating at the prospect. It’s hard to know at this early stage where the leadership to harness a treaty movement will come from and how successful it will be. People are spent. It will take time.

Finally, you need political will. It’s a sad truth that this far into the colonial experiment it is only governments that can instigate, fund and fashion treaty processes. At the time of writing this, the national vote against the Voice stands at 61 per cent, a number likely to grow as postal votes overwhelmingly favour the “No” vote. People made up their mind early on. It is with political will in the short and medium term that the prospect of treaty faces its strongest resistance.

The Albanese government has spent considerable political capital championing constitutional reform. Many thought that if there was a defeat, a series of announcements might be waiting to revitalise the Closing the Gap agenda or to begin exploratory work to start a treaty process. No such announcements have been made. It’s back to the drawing board to break the status quo. Meanwhile, the government will turn its attention to strategising a path to victory at the next election, which must involve addressing the cost-of-living crises plaguing the outer suburbs that rejected the Voice so wholeheartedly. Despite any genuine passion from the prime minister, realpolitik will dictate his government’s direction from here on in and it will see Indigenous disadvantage slide down the list of priorities. It’s hard to see treaty even getting a mention in the foreseeable future.

The only certainty when it comes to treaty is that it will require generosity, imagination and yet another leap of faith from First Nations people. The generosity will be required to concede across a range of areas, an act of vulnerability that is more usually exploited than appreciated. The imagination will be to see beyond what society and governments of all persuasions envision for us, especially when history shows we are the ones who generate the ideas and come up with the solutions. Yet perhaps the biggest barrier for Indigenous Australians will be the leap of faith, placing trust not only in colonial structures but having the faith to navigate the colonial mindset that seems to have captured public opinion when it comes to these matters. That in itself may take generations.

Treaties are hard. That’s why in real terms we haven’t really ever come close to one, despite Bob Hawke’s pledge of a treaty in 1988, a broken promise and his biggest political regret.

The events of the past few months have many in Indigenous Australia re-evaluating our place and in some cases our life’s work. We share our stories, our songs, our dance in order to celebrate our culture and to educate and illuminate, to enrich the country as a whole, to add value. It would seem now those efforts have fallen into the great Australian silence.

It’s in times like this I remember my old people. Leaders such as William Cooper, Sir Doug Nicholls, Margaret Tucker, Shadrach James and Bill Onus. Each one advanced the cause of their people, but all lived lives full of frustration and lament. They spent their time trying to get this country to turn over a new leaf when it came to reconciliation and the enrichment of the nation through Aboriginal eyes. Despite it all, despite every setback, they kept going, and we will keep going.

As talk turns to treaty, though, I’m afraid to say the chance of such an agreement is remote in a country that shows no willingness to deal with its past, no imagination to address its future and none of the generosity required to do it hand in hand with First Nations people. It’s unjust, it’s unfair, it’s Australia. 

Paul Bongiorno is on leave.

This article was first published in the print edition of The Saturday Paper on October 21, 2023 as "Trick or treaty politics".

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