Truth-telling on treaties and constitutional recognition

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.

There was no system of government in Australia before Captain Phillip. No title Europeans could recognise, and no wars.

There were also hardly any people.

Population estimates of Australia at the time of settlement range between 300,000 and 1,200,000. This yields a population density in a range between one person per 25.64 to 6.41 square kilometres.

Compare this to the Americas where the most likely population density at the time was something like one person per 0.85 square kilometres, or the UK where it was one per 0.15 square kilometres. At the time, and to this day, Australia was the most lightly populated continent, save Antarctica.

The low population density combined with the lack of a sophisticated governance system meant there was no one to negotiate with for land, and a lot of land available.

So like the previous Aboriginal colonists before them, the new arrivals just squatted, and there was a legal theory and practice to support it. Had the Aborigines been more numerous and more technologically and socially advanced, there would have been treaties. But they weren't.

And the British applied British law to the whole continent, making the Aborigines subjects of the Queen. So any hostilities were subject to civil and criminal law, not military or international law. Not only was there no room for treaties, but unauthorised conflict on either side was subject to the full force of the law, and the victims to the full protection of the law – white or black.

Both Aborigines and Europeans were punished for frontier violence, sometimes by death.

So what about the constitution claims?

Well, the Canadians recognised its "First Nations" a lot earlier than the claimed 1980. Are they in the Canadian Constitution? They are, because the Canadian Constitution isn't one document but a series of documents and includes the treaties with native peoples.

Right idea but wrong date, and so what, it was a different set of circumstanes?

New Zealand is like Canada – it doesn't have a single constitutional document but a number, of which the Treaty of Waitangi is one. It is an interesting case because part of the reason for the Treaty was that the Maori wanted the British to impose order on the country which was riven by intertribal fighting as well as the deprivations of some colonists and traders who had bought land or concessions from the Maori. They also wanted protection from the French.

Again it underlines how different Australia was from almost anywhere else. There was no council of Aboriginal chiefs capable of participating in such an arrangement in Australia and no structure to participate in a treaty or worry about being dominated by competing colonial interests. Don't blame the British.

But these aren't the constitutional recognitions that Burney wants you to think they are. They don't give aboriginal peoples the right to intervene in the whole of government like The Voice would. They're closer to land rights agreements than The Voice.

And they reflect the sophistication of native populations when Europeans arrived. You can't reverse engineer those arrangements because time has moved on.

Neither should Burney be trying to reinvent the past.

We are here, where we are now. We cannot fix the past because we can't change it. And what would fixing even mean as the past was a product of its time?

When Australia was settled the paradigm was that all the inhabitants of the land gained the protection of the crown. That's actually more inherently egalitarian than a system of treaties, and surely better for Indigenous and other Australians.