Getting down to brass tacks on Indigenous treaty

On Saturday, April 5, 300 Canberrans put forward the idea of a treaty with Australia’s Indigenous peoples, our first nations. This emerged from the Canberra 2020 summit, a gathering of people from across the community to generate new ideas and new thinking for the next weekend’s national 2020 summit.

The treaty idea had broad support, including from Chief Minister Jon Stanhope who said that he had “no doubt that a treaty is the next step in the process of reconciliation”. He also stated that his government could lead the way by negotiating a treaty by the time of Canberra’s centenary in 2013

There has never been a moment in our history when a formal agreement was struck with Aboriginal and Torres Strait Islander peoples. This leaves Australia as the only Commonwealth nation without a treaty with its Indigenous inhabitants. New Zealand has the Te Tiriti o Waitangi, the Treaty of Waitangi, an agreement signed in 1840 between the British Crown and more than 500 Maori chiefs.

The United States has hundreds of treaties dating back as far as the 1600s. The Indian tribes entered into treaty relationships for “as long as the rivers run and grass shall grow”, and many still seek to hold governments to these agreements.

Canada also has a number of treaties, and continues to make agreements to the present day. For example, after a 25-year process the Nisga’a Agreement came into effect in 2000. It involved a substantial cash settlement and established the Nisga’a Lisims government, with ownership of more than 1,900 square kilometres of land and entitlements to fish stocks and wildlife harvests.

In addition, in 1999 the new self-governing Territory of Nunavut was created in the far north of Canada, where 85 per cent of the population is Inuit. In that case, agreement was reached upon an open public model of government rather than an exclusively Indigenous form of self-government.

While a “treaty” is an international agreement between sovereign nation states, it is also the term used around the world for domestic agreements with Indigenous peoples. In the latter case it usually means political agreements involving Indigenous peoples and governments that have a binding legal effect. The parties to such an agreement can call it a treaty or something else, such as a compact, a “Makarrata” or a document of reconciliation.

The name given to the agreement is itself something that the parties can negotiate. In the end what really counts is the content of the agreement and the quality of the relationship it helps to establish.

Understood in this way, a treaty should not be of any greater concern than, say, something that might be called a framework agreement. Of course, whatever name is adopted cannot hide the great challenges that would be involved in its drafting. One key issue would be who would negotiate on behalf of Indigenous peoples.

This cannot be resolved until Australia has a body to represent the political and other interests of Aboriginal people. Unlike the creation of the now defunct ATSIC, responsibility for designing the body should rest with Indigenous people. A representative body should not be imposed upon Aboriginal people, it should be shaped by an act of self-determination so that it is a legitimate expression of their aspirations.

The notion of a treaty rises to the surface of public debate in Australia every few years. It does so because no legal settlement has yet been reached between governments and Indigenous peoples.

Even when Australia became a country in 1901, Indigenous people were excluded from this moment of nation building. There were no Aboriginal representatives in the processes in the 1890s that led to the establishment of the modern Australian state. The Constitution as enacted was also imbued with the belief that Aboriginal people were a dying race and that governments should be able to make laws restricting the rights of racial groups within the community.