Getting down to brass tacks on Indigenous treaty

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.