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Aboriginal Provisional Government FINDING
THE FOUNDATION FOR A TREATY WITH THE INDIGENOUS PEOPLES OF AUSTRALIA
The APG Papers CONTENTS Where
is the Aboriginal vision? The call for a treaty suggests that the benefits of native title and ATSIC, and having the occasional federal Aboriginal politician, are not enough for Aborigines or Torres Straits Islanders. Something more than CDEP, anti-discrimination commissions or promises (or the lack of them) by governments is called for. The call implies an impatience with the existing political arrangements. No longer, it seems, are indigenous peoples prepared to accept only token social change. Political change is on the agenda. Otherwise why call for a treaty? Is the call for a treaty, however, reaching too far? Are there other ways of achieving the same result without raising the difficult political issues that go with treaties? The answer seems to rest in where the indigenous peoples want to be in the next 20 or 30 years. Put another way, what is the vision for Aboriginal and Torres Strait Islanders? If the treaty call is only about a better social deal within the existing political and administrative arrangements, a treaty may not be necessary - a social compact could provide the desired results. A treaty does not normally apply to social re-arrangements. It normally deals with higher political and economic matters. Treaties formalise the dealings between parties who need to bind each other to an agreement. In the context of race relations in Australia the treaty call squarely raises the question of political change. The higher level question seems to be whether indigenous peoples can gain authority over themselves to plan for their futures. The treaty call raises the question of who has the better right to control the destiny of indigenous peoples - them or the Australian governments. Where is the Aboriginal vision? Aborigines have been on the back foot since the invasion. We have not had breathing space to plan our future. We have been forced to leap from one crisis to the next. With things the way they are at the moment - a federal government having little tolerance for people not of the white Australian culture - now is as good a time as any to plan. What will it take to satisfy Aborigines? Exactly how much land, resources and authority would make us content? Until we indigenous peoples can state the answers to these questions government’s will decide for us. The Aboriginal Provisional Government’s policies are based on a vision. That vision is for Aboriginal people to take our place among the nations and peoples of the world, not beneath them. It is a vision of Aborigines realising the full extent of our collective capacities, without being subject to someone else’s dictates. It is based on gaining acknowledgement that we have the political ability to make mistakes and be answerable only to our own people, not whites. It is about Aborigines determining the Aboriginal destiny. To achieve that vision, the APG believes Aborigines must regain sufficient territory of Australia - the crown lands as a start - and be allowed to build or re-build the authority of Aboriginal people over themselves and those territories. Existing land rights or native title areas should also be allowed to have the full weight of Aboriginal authority over them, and not be subject to white planning laws. The APG sees nothing wrong with negotiated arrangements between Aborigines and Australia’s governments for everyone to live and get on well together. That is very different from the current situation where Aborigines’ wishes are subject to political decisions of white politicians, often driven by popular white opinion. But if we did provide our statement of a vision based on a declaration of Aboriginal rights, together with time frames for the application of those rights, where is our political, economic and legal capacity to bring about that vision? While Australia insists governments have the right to make decisions about whether Aborigines get land, resources, the type of education and welfare, and that in every case white laws prevail, Aborigines will remain a dependent, “done to” people. We need a political platform to enable an Aboriginal vision to be planned and implemented. The treaty might clarify who has the authority to deal with Aboriginal matters in the different areas. The Commonwealth of Australia was formed because white people no longer wanted to be governed and controlled by someone else. Sound familiar? Through the many meetings and discussions leading up to federation, white people looked beyond their lifetime and put in place a document to regulate relations among themselves. They worked out how their people would be politically represented. They put in place structures based on the values embraced by whites, and those values underpinned the foundations of the new nation. The language spoken, the type of education, forms of land ownership and laws were the cultural expressions of the white nation. Federation shows that rethinking the ways things are done in Australia is not divisive. Federation also set the precedent that Australians believe in the right of distinct peoples to govern themselves. Australians thought it right they be allowed to determine their own destiny. How could the same opportunity be denied Aborigines? COMPARING A SOCIAL CONTRACT WITH A TREATY In the Australian context, a treaty would only seem appropriate if it dealt with of who has the legitimate right to exercise authority over Aborigines. At the moment the Australian government claims it is not an issue because the government, and the government alone, has that right. The government claim is worthy of review. The social contract could be seen as an extension of the reconciliation process. It could be embraced by a public eager to do something. The idea of a document dealing with race issues but not challenging government legitimacy has its strategic attraction. Bringing the Australian government to the table early is an advantage. Qualifying the meaning of treaty to make it more palatable to the public means there is a greater likelihood of an agreement being reached. Calling something a treaty while avoiding the political implications of a treaty, or using some other description such as “compact” or “makarrata”, could encourage both Australian government involvement and broader public involvement. But what would be the point? Setting out to make a treaty but not wanting a treaty is strange indeed. Nevertheless the social contract approach is an option. Many Aborigines see themselves as Australians and accept that governments legitimately govern Aborigines. They just want a better deal. A social contract assumes the Australian government claim is legitimate: that governments have the right to govern, and Aborigines the right to be governed. The goal of a social contract is to seek a greater share of the fruits enjoyed by those better off Australians. The upper limits are not clear but are probably defined by “real equality”. The outcome only marginally changes the current political process which requires Aborigines to persistently lobby governments for change and success is often dependent on the mood of the government of the day. Success is measured by another small advance in the Aboriginal welfare state. The social contract strategy requires the laying down of the problems in a document. It can be called anything, even a treaty. Then the document spells out how and when the social problems are dealt with. The charter for reform outlined in the 339 recommendations of the Deaths in Custody Inquiry might well be a lesson for advocates of the social contract approach. The lack of a legal or political requirement for governments to act meant the recommendations on return of land, vesting authority in Aborigines and changing the laws have been ignored. The Deaths in Custody call for change rested on goodwill, and its performance on hope. The political basis of, and the sense of direction the social contract sets for Aborigines, has a shallow foundation. Its pragmatic appeal is outweighed by its policy of subordinating Aboriginal hopes to those of whites. Making Aborigines remain beneath whites in exchange for better forms of equality is hardly a basis for a final settlement. A treaty with indigenous peoples would be expected to clarify peoples rights, not rights as individuals. It would address the issue of authority to make decisions about the quality of life and values the people hold dear. More specifically, who has the proper claim to authority over Aborigines - blacks themselves, or whites? These are the very same issues that drove the push for federation. These types of claims are based on self determination, a right only extending to sovereign peoples. Are Aborigines entitled to raise these claims? Where a distinct group have lost their sovereignty they cannot claim self determination. They must make their way as a part of the state within which they live. A social contract assumes legitimacy of the Australian takeover of Aboriginal rights. Aboriginal sovereignty claims acknowledge the takeover as real, but dispute the legitimacy of the takeover. Writers have been troubled with how to accommodate Aboriginal sovereignty
in a final settlement. Fr. Frank Brennan was blunt: Richard Mulgan was a little more sophisticated. He argues that in exchange for Aborigines agreeing to legitimise the Australian invasion special rights and concessions could be recognised: “If non Aboriginal Australians publicly admit to the wrongs done to Aboriginal by non Aboriginal people in the past and publicly endorse Aboriginal rights to limited self determination and limited land rights, they will expect the Aboriginal people, as a quid pro quo, to agree to give up blaming them for the sins of colonial conquest. The apology will be seen formally to seal the renewed legitimacy of the Australian state …..” Mulgan’s view goes beyond equality and citizenship but still calls on Aborigines to abandon claims of sovereignty as a means of legitimising the new Australian state. For him, the Aboriginal relationship with the rest of Australia is a special one: equality of citizenship but the retention of special rights. This approach to the key issue is another option for a treaty. Aboriginal sovereignty does exist. Before whites invaded Australia, Aborigines were the sole and undisputed sovereign authority. The invasion prevented the continuing exercise of sovereign authority by Aborigines. The invasion and subsequent occupation has not destroyed the existence of Aboriginal sovereignty. Australia has exercised its authority over Australia and Aborigines by force, not through any legitimacy. The distinction between the existence of a right and the exercise of it is relevant to the competing sovereign claims made by Australia and Aborigines. The one has exercised sovereign powers without a legitimate right to do so, the other, while having the legitimate right to exercise sovereign powers, has been prevented from doing so. Preventing a people exercising their sovereign rights does not mean that a people lose the right. If you lose your car to a thief, you lose the ability to exercise control over the car. You do not lose the right to the car. The use of white authority over Aboriginal people, and our lands has been phenomenal. Lands and children have been stolen in the exercise of that authority. The victims of this policy are often made to feel to blame. Rather than see alcoholism and violence as symptoms of the policy of one sided domination we are now to believe the fault lies within Aboriginal communities. This domination merely represents the power of white Australia to prevent the exercise of Aboriginal sovereignty. That power cannot legitimately be relied on to show Aboriginal sovereignty does not exist. The treaty may well formally recognise the competing sovereignty claims
by Australia, and Aboriginal and Torres Strait Islanders. How that sovereignty
is to be shared and exercised is really the hub of the treaty content. Prime Minister Howard is against a treaty. It remains to be seen if new Opposition Leader Simon Crean reviews his predecessor’s ambiguous position on the treaty. The Prime Minister saw a treaty with indigenous people not only implying recognition of Aboriginal sovereignty but instantly feared the disintegration of the Australian state. The treaty would in fact shore up Australia’s position through agreement and put its legitimacy beyond challenge. The treaty as a mechanism for change The treaty can be the mechanism for finally resolving race based human
rights issues. The treaty is not meant to deal with housing or other
welfare matters. The treaty rathers sets up the respective rights and
authority of those who are best suited to deal with those important
welfare type issues. There should have been an agreement with Aborigines by the white new comers. Had there been some form of agreement it could have provided the moral foundation, now lacking, for a nation. The existence of a treaty in the future cannot turn back the clock on the historical facts: it can recast the immorality embedded in historical attitudes and indicate the type of society Australia wants to be. It can also give the missing political legitimacy. The future for the distinct peoples should be based on acceptance of mutually exclusive rights. Compromise is inevitable. But the compromise would be based on agreement, not on domination by one of the other. A treaty can acknowledge respective political claims to legitimacy - including to sovereignty and self determination. Social change, such as to education, jobs, housing and so on, comes as a consequence of a final political settlement, not as a substitute for it. The existence of a treaty would recognise the status of Aboriginal
people as sovereign. The content of the treaty would describe the limits
of the exercise of that sovereignty. It would likewise legitimise Australian
sovereign claims while limiting Australia’s exercise of sovereignty
over all peoples, unless by agreement. Michael Mansell January 2002
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