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.

Today, a treaty is one way that fresh agreement about sharing the country can be reached. It could allow a moment of belated nation-building.

There is no constitutional reason why a treaty could not recognise a measure of sovereignty or self-government for Indigenous peoples. As in other nations, this could be developed within the existing legal system. The Australian Federation already encompasses different laws co-existing at the Federal, State and local levels. The High Court in Mabo in 1992 also gave legal effect to the native title of Indigenous peoples and has found that the content of this title is defined by Indigenous legal and cultural traditions. This did not fracture Australia’s existing system of law, but was accommodated within it.

The call for a treaty took on a new dimension since reconciliation became a central theme in Indigenous affairs. The word reconciliation itself remains open to different interpretations. The Council for Aboriginal Reconciliation, however, left no doubt about it views. In its final report in 2000 it recommended that “That the Commonwealth Parliament enact legislation … to put in place a process which will unite all Australians by way of an agreement, or treaty, through which unresolved issues of reconciliation can be resolved.” In doing so it sought to promote practical measures to overcome disadvantage and larger structural and symbolic changes that build a better, more inclusive nation.

The starting point for a treaty should be acknowledgment of our history, including that Indigenous people were the prior occupiers of the land, the injustices done to them and that the settlers who came later are here to stay. A treaty will require honest recognition from both sides of how we have got to this point and our respective hopes for the future.

Acknowledgement should be followed by negotiation rather than just consultation. Consultation is what governments have been doing in Indigenous affairs for many years, while negotiation is where parties sit around the table, agree on an agenda and work their way towards agreement.

Negotiation reduces the risk that the rights and interests of a significant group will be ignored. It recognises that winner-takes-all processes are unlikely to endure or produce good policy. It allows sophisticated and tailored solutions to be worked out by the parties with a direct interest in the outcome. It builds relationships based on trust and regular communication. In short, negotiation can improve the quality of outcomes.

Choosing negotiation also reflects a basic ethic of fair dealing and respect for other points of view. As a basic democratic principle, people should be involved in making the decisions that affect their lives. Given the diversity of Indigenous communities across the country and their lack of formal representation in most of Australia’s parliaments and its corridors of power, the sensible option for achieving that is round-table negotiations based on clear principles well understood on all sides.

A treaty must produce outcomes in the form of rights, obligations and opportunities. Many people see the process of entering into treaty discussions, of engaging in negotiation, as a virtue in itself because it can develop relationships, build trust and enhance knowledge, skills and perspectives on all sides. Negotiations, however, will demand a lot of time, effort and goodwill. The negotiators, the constituencies they represent, and indeed the whole country will want to see substantive outcomes.

It is difficult to contemplate a viable treaty process in Australia that does not address the issue of Indigenous rights and, as one of its outcomes, offer those rights some form of legal protection. A treaty process in Australia, however, which only looked at rights and ignored the pressing social problems bearing down on Indigenous communities every day, or the lack of opportunities for sustainable economic development, would be rightly criticised as a luxury we cannot afford.

The “rights agenda” and “practical reconciliation” - the issues of health, housing, education and economic development - are inextricably linked. Extensive research by the Harvard Project on American Indian Economic Development shows that, among North American Indigenous communities, economic success occurs only where the right to make important decisions rests with Indigenous peoples themselves.

Achieving one or more treaties in Australia would be a long, hard process. Nothing would come easily. However, the attempt could be more than worthwhile, with benefits that extend to non-Indigenous Australians. A treaty process would allow them a way to come to grips with a challenging issue of great difficulty and complexity: how they relate to the Indigenous peoples of the Australian continent.

It could also bridge the gulf that has opened up between Indigenous people and the rest of Australia over more than 200 years. It could offer better mutual understanding, better public policy in Indigenous affairs, better results from the expenditure of money in areas like health, housing and education. A treaty could help in building a better nation, more secure in its identity, its symbols and its values.