The case for treaty
Indigenous people are viewed as a problem in this country. We are a problem that is met by the powerful with “solutions” brandished like weapons to beat us down – from historical solutions such as murder, massacre, sexualised violence and slavery, to the historical and continuing practice of child removal, to the contemporary policies of intervention, work for the dole and cashless welfare. The past 230 years has seen systematic annihilation of a population undeserving of the abhorrence of dispersal, dispossession, disenfranchisement and destruction of the essence of our culture – land, language and lore.
Yet it is Indigenous people who are viewed as the problem, and this rhetoric resonates in the media, in policies and in the administration of the “justice” system. The cognitive dissonance is all too apparent.
The recent, horrendous response to the discussion surrounding January 26 has resulted in an Indigenous MP being targeted with threats of violence, gang rape and death, all because she put forth her honest views as an Indigenous woman.
The reason this continues to happen is because this nation is not an honest one. This nation clings to a national identity built on falsehoods of “mateship” and a “fair go”, but the truth of the matter is that there has been a malevolent and deliberate destruction of Indigenous people for the past 230 years. This country has not been built on opportunity but on the theft of mineral-rich land, toiled on by the slave labour of the Indigenous people.
This uncomfortable truth is met often with outright hatred and determined ignorance, or with an acknowledgement of the history that is accompanied by petulant refusal to also acknowledge that current generations have anything to do with the acts of their ancestors.
This is true. Current generations of Europeans who came to this land are not responsible for the acts perpetrated by their ancestors. Current generations are, however, responsible to be mature enough to acknowledge that the effects of those acts are ongoing – transgenerational, if you will – and the power structures that continue to oppress are a direct result of the acts of those who forced themselves on this land and annihilated the traditional owners’ lands, lives, language and lore.
Simply put, we are not asking for the current generations of non-Indigenous Australians to apologise for the acts of their ancestors. What we are asking for is that they join us in dismantling the power structures that reinforce the oppression first started by their ancestors and help us create a future where Australia can live up to the narrative it tells about itself.
The only way for this to occur is through structural change and a change of the power paradigm. For this, I propose treaties.
The prevailing legal doctrine is that Australia was acquired through settlement, despite the presence of an Indigenous population. The English common law contained a definition of “uninhabited lands”, which considered lands uninhabited if they contained peoples “uncivilised” by 18th-century English norms.
Ultimately, through the doctrine of terra nullius, Indigenous people were regarded as savages and this view was reflected in the Australian Constitution, which was drafted on the premise of Indigenous people being so inferior as to not garner a mention and, in any event, they were considered to be a fading race.
Terra nullius was designed to enable colonial settlement without any compensation to the lawful owners. The illegality of the actions of the Crown was clear even as far back as 1832, when the chief protector of Aborigines at Port Phillip, George Robinson, wrote:
“I am at a loss to conceive by what tenure we hold this country, for it does not appear to be that we either hold it by conquest or by right of purchase.”
This is not new to Indigenous people; we know that this country was not “settled”. We know that sovereignty was not ceded. It is this disparity of understanding between what we know and what white Australia is told happened that we need to overcome.
This is a critical point to the success or failure of any cause – the truth and the wide acceptance of the truth as fact. The average Australian simply does not know about the fight for equality and rights that the Indigenous people have been waging for 229 years.
I unapologetically advocate for treaties as I believe that treaty is the mechanism with which we can hold the government to account for past and present atrocities. In doing so, I acknowledge that I part with the consensus of the Uluru statement. I respect the work of those involved with the statement, but I believe we can and should go further, and as the statement was summarily rejected by the Turnbull government we have nothing to lose. I believe treaty provides Indigenous Australians with the means of asserting our sovereignty and of ensuring funding for the development of structures that will see our communities flourish.
Under the current arrangements we are at the whim of government with respect to which policies are imposed upon Indigenous communities, and the vast majority of targeted policies are enacted without any community consultation, but rather as an extension of ethnocentric condescension in a bid to push an agenda of assimilation.
One of the foundational principles of a treaty in Australia would need to be self-determination. Without communities in the driving seat of their futures, the gap will continue to widen between Indigenous and non-Indigenous Australians. Without the right and means to self-determine, there is no chance to redress the wrongs that have occurred for the past 230 years.
Treaty would not cure all that ails our people, but it would start a new chapter, reinvigorate pride and provide the country with an opportunity to take the first steps towards a new foundational document, rather than amending the existing one, born as it is of oppression.
Non-Indigenous Australians would prefer not to think of the past due to guilt or shame or apathy, but this need not continue. The act of creating a treaty between Indigenous and non-Indigenous Australia would provide not only a basis for which future relations would be established, but it would create a legacy for future generations to look upon with pride. While the history of this nation is turbulent, it does not have to be looked upon with shame forever. Rather than maintaining the status quo of oppression, current generations can be a part of something that brings the country pride.
Australia can become a nation proud of its rich cultural history by enacting a treaty that effectively conciliates the issues of contention between Indigenous and non-Indigenous Australians. It can be the final declaration and acknowledgement of Indigenous sovereignty and a compact that dictates future relations and entrenches the requisite protections for Indigenous people.
A treaty is not a cure-all – I know this – but it is the chance to create a level playing field for deciding the future of this country for both Indigenous and non-Indigenous Australians. Let our legacy be of hope.
The treaties enacted in New Zealand and North America provide models we can learn from, but they have little direct practical application in Australia. Australia comprises more than 200 nations of Indigenous peoples, all of which would need to be properly consulted, engaged and represented for a treaty to be successful.
The treaty model I support is one that builds into Australia’s existing structural framework: the executive, judiciary and legislative bodies. These are supposed to represent all members of society, but Indigenous people now make up less than 3 per cent of the population and since the abolishment of the Aboriginal and Torres Strait Islander Commission more than 12 years ago we have had no national representative body with the ability to affect policy. The wellbeing of Indigenous people is in decline and policies are made “for” Indigenous people without any input from the people affected.
The model I support is one where parallel to the existing Australian framework is an Indigenous organisational framework brought about by the signing of a treaty. In the same way mainstream Australia has councils of local government, Indigenous nations could have their own councils that deal with local issues. Again, this parts with the Uluru statement, but I think in the face of the government’s refusal to engage with that document, we should press for a more robust mechanism.
The community-nation councils could elect representatives to a national caucus, which, I propose, would be an additional arm of the existing Australian legislature that would deal primarily with Indigenous policies. The national caucus would be the first time Indigenous nations have come together in an engaged manner, where all Indigenous nations would be afforded a voice for the combined purpose of shaping national Indigenous policy.
The national caucus could then elect a specific number of representatives into targeted seats in the Australian legislature where the impact on policies is most directly felt. I propose that the treaty would enshrine the principle that there should not be any national policies implemented that would directly impact Indigenous people without the endorsement of the national caucus.
Essentially, the model I propose would have the same structural bodies the Australian system of governance has, but with the specific purpose of addressing the rights and wellbeing of Indigenous peoples and communities. These structures would go a long way to addressing the historical and contemporary inequities of the Australian system.
In addition, I propose that parallel to the judiciary, there also needs to be an Indigenous tribunal that hears matters such as disputes under the treaty, and those pertaining to land rights and the environment.
It is clear that, despite the symbolic Stolen Generations apology and the campaign for constitutional recognition, structural change needs to occur to ensure Indigenous interests are at the forefront of governmental policies affecting Indigenous people. And the best means with which to ensure that the above structures can occur is through a treaty where principles of sovereignty, self-determination, right to language and culture, and land rights can be enshrined and protected.
I support treaty. I hope non-Indigenous Australians join calls for treaties so that we can approach the future as a united and mature nation, well aware of our past and committed never to repeat it.
This article was first published in the print edition of The Saturday Paper on February 10, 2018 as "The case for treaty".
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