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Truth-telling on treaties and constitutional recognition

By Graham Young - posted Tuesday, 25 July 2023

The perennially prevaricating Minister for Aboriginal Affairs, Linda Burney was at it again, this time on Twitter, inferring there was something particularly deplorable about Australia's European colonisation because there was no constitutional recognition here, unlike other comparable countries.

It's another volley in the argument that if you're opposed to The Voice it's because you are irremediably and systemically racist, unlike anyone anywhere else in the world you would like to call your peer.

Canada recognised its First Nations people in the 1980s. In New Zealand the Crown recognised the Maori people as far back as the 1840s. In 2023, it's time for Australia to recognise Indigenous Australians.


This is a variation on her claim 4 years ago, reported by the ABC, that "The Australian constitution is the only constitution of a first world nation with a colonial history that does not recognise its first people". A claim made by others and regularly reinforced through the idea that we're the only colonial country not to have a treaty with our native peoples.

The constitution claim can only be supported if you remove all the first world nations without a mention of the "first peoples" on various spurious grounds, as the ABC fact checkers did so they could give her a tick.

The treaty claim, rather than proving there's something radically wrong with Australia, underlines just how primitive Australian Aborigines were at the time of settlement. This should surprise no one. It's implicit in the claim to being the "oldest living culture".

Take treaties first. The initial impetus for colonial engagement was trade. In a time before reliable legal systems and systems of title backed by state force, you needed to often establish your own self-policing and governing outpost. That would involve procuring some sort of land tenure from the local owners.

Then the local owners would often ally themselves with you in your conflicts with other colonial powers. And then you might get involved with the locals settling a dispute between them and some of their rivals, particularly if the dispute might impinge on your tenure.


To ease your way into how this worked, try reading Fennimore Cooper's The Last of the Mohicans.

Treaties arise out of land ownership and conflict. In Australia there was in most cases no one to deal with. As Nettle J, one of the majority in Love and Thoms says:

…territories governed by a sovereign could be acquired only by conquest or cession, and thereafter remained subject to the body of law earlier in force until alteration by the acquiring sovereign. On the other hand, territories which were not governed by a sovereign before the Crown acquired sovereignty could be acquired by settlement and thereupon receive English law, both statutory and unenacted, so far as applicable to the situation of the settlers and condition of the infant colony.

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About the Author

Graham Young is chief editor and the publisher of On Line Opinion. He is executive director of the Australian Institute for Progress, an Australian think tank based in Brisbane, and the publisher of On Line Opinion.

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