May
I particularly welcome our distinguished overseas visitor, Premier Paul Okalik.
It is a wonderful thing to have that international leavening of our
domestic Conference on the Treaty. Can
I mention the Minister because Ministers have very busy programs and it is
wonderful that you are here to share some of the day with us and the Chief
Justice of Western Australia, David Malcolm, whose indefatigable attention to
matters concerning Indigenous people I think is an encouraging sign of change.
Can
I acknowledge the Noongar people and Mort Hansen with his welcome and Premier
can I say to you that if you had come to Australia ten years ago, you would have
seen nothing like a traditional welcome. This
is one of the signs of change here in Australia that increasingly at both public
and private functions we acknowledge the traditional owners of country.
We do that because we understand that that is important to them but also
it is important to us and so you have already been a witness to one of what I
see as the positive changes which are occurring in our country and we need many
more such changes.
My
job was to assist in the opening of this Conference and I thought in the limited
time that I have got, that the best thing I could do was to try to put what this
Conference is into some sort of context. I
do want to say to you that it is a very timely Conference and the extensive
deliberations that are planned over the next three days are in fact extremely
relevant to what is happening elsewhere in Australia and indeed what is
happening in our community.
I
would like to remind this audience, many of whom would have taken an interest in
this matter, that when we came to the end of what was supposed to be the decade
of reconciliation in 2000, the Council for Aboriginal Reconciliation made six
recommendations to Governments of Australia and to the Australian community and
I want to refer to 2 of those recommendations because they directly relate to
the subject matter of this Conference.
The
5th recommendation was that each government and parliament should:
§
recognise that this land and waters were settled as colonies without
treaty or consent and that to advance reconciliation it would be most desirable
if there were agreements or treaties; and
§
negotiate a process through which this might be achieved that protects
the political, legal, cultural and economic position of Aboriginal and Torres
Strait Islander peoples.
The
final recommendation was:
- That
the Commonwealth Parliament enact legislation (for which the Council has
provided a draft) 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.
I
think where those recommendations contain matters of fact, the facts are
incontestable. Australia was
settled without the consent of its Indigenous people and we have not established
in any formal sense, an appropriate relationship with our Indigenous people and
the Council was recording that and recommending a way forward.
That has not produced a formal Government response in that there has been
no formal tabling of a response to the 6th recommendation by any
Government in Australia.
The
recommendations were not simply addressed to the Federal Government.
They were addressed to all governments and no government has as yet,
formally responded but again to underline the relevance of this Conference, I
just want to remind you that political parties have responded in part in the
context of the last election and elsewhere to some of those recommendations.
I
start with the Federal Government which is of course, a critical player in all
these issues. The Liberal Party
before the last election, made the point that Labor has left open the question
of a Treaty and I think that is actually a very fair summary of what the
Opposition’s position is, that they are open to the question of a Treaty but
do not have a final position although they respectfully in their policy, talk
about the importance of Regional Agreements.
But the Government itself said this, “In contrast the Coalition has
taken a decision in the national interest and has ruled out a Treaty believing,
that it would be divisive and could damage the spirit of reconciliation that has
developed in this country. The
Coalition believes that many Indigenous people themselves are opposed to a
Treaty and would prefer to concentrate on practical issues that are important to
them such health, housing, employment and education.”
So
that was the Government’s position which was formally put forward at the last
election and as far as I know, it remains the position of the Government and I
rely there on their public statement in a number of contexts.
The Australian Democrats were firmly in favour of a Treaty and they
certainly remain open to it. That
is the sort of broad external political context in which this Conference is
taking place.
A
very important player in all this is ATSIC, and ATSIC, which is the statutory
body which has the responsibility for advising Government on Aboriginal matters,
of course, have quite different views. ATSIC
has recently published its registration brochure for its Conference later this
year which is entitled “Treaty – let’s get it right.”
ATSIC has been both encouraging research into the Treaty and encouraging
consultation with the Aboriginal community into the Treaty on the basis that
there is much to be done. There are
many other players in this, AIATSIS for example which has been running a series
on the Treaty, Melbourne University has been running a series on agreement
making and there is a great range of other activity taking place.
This Conference is part of what I would call a mosaic of necessary
analysis and debate of issues where the final answers are certainly not yet
known. If you look at what ATSIC
itself has said, might be the outcome of its Conference to be held later this
year at the end of August it says in its brochure:
“The objectives of the conference are to:
- Promote
in the non-Indigenous community the concept of a treaty between Aboriginal
peoples and Torres Strait Islander peoples and the Australian Government/s.
- Promote
the benefits of a treaty to key decision makers in the bureaucracy,
legislature and private sector.
- Develop
broader networks and alliances in order to enhance the outcomes of community
debate about a treaty.
- Examine
international treaties, their benefits and disadvantages, so that we may
determine the most appropriate methodology and model for a treaty.”
I
put that before the Conference because I think ATSIC, which has the role of
being the primary voice for Aboriginal people, the elected Aboriginal voice, is
putting forward that these are matters which need more consideration and
development and they go on to say they hope that by the final day of the
Conference, there will be a great understanding of the issues surrounding the
concept of a Treaty. Now I with
great respect, think that that shows great wisdom on the part of ATSIC and that
is why the body with which I am associated, Reconciliation Australia, has been
strongly supportive of ATSIC’s
work in this area because we believe there is much work to be done.
We are working with the University of New South Wales Law School, the
Gilbert & Tobin Public Law Centre, with Professor George Williams and the
distinguished Indigenous academic, Professor Larissa Behrendt in getting the
ideas, the legal ideas relating to treaty making which need to be clearly
understood and developed over the next few years, and then workshopped into the
community so that there will be increased understanding of the issues involved.
I
thought it was a fantastic contribution to what I see as a medium to long term
major issue for our community, for our nation, that ATSIC canvassed senior
Aboriginal opinion more than a year and a half ago and came to the conclusion
that that opinion pointed in the direction of needing to do much more work, and
to see the arguments develop not only with the broader community, the 97% of us
who are not Indigenous, but among the Indigenous community too. Reconciliation
Australia firmly believes that we should be dealing with the Treaty issue, that
it remains unfinished business for Australia that we do need to support the
mosaic of thought development, theory development, community education,
community involvement and community consultation which must underlie an
authentic outcome to any Treaty proposal.
All
that might sound a little bit daunting but I would like to inject my own very
optimistic view of where this is going and as an avowed republican and indeed, a
highly enthusiastic republican I am going to, at some risk of embarrassment,
quote from Her Majesty, the Queen.
The
Queen just celebrated her 50th anniversary.
As part of that she addressed the joint houses of the Westminster
Parliament. I was struck by a
single sentence that she uttered. She
said something like this, “we are a moderate and pragmatic people more
interested in practice than in theory.”
As she said that I thought, how characteristic that is of our own
country. We have great arguments
about things like the Bill of Rights but they go nowhere.
We have arguments about constitutional amendments and usually they go
nowhere. The honourable exception
was the 1967 Referendum which obtained more than 90% support. We are distrustful of changes to our Constitution.
We are in many ways, a moderate and pragmatic people and my observation
is that the practice of Treaty making is so far ahead of the academic debate, it
just does not matter. You see even
the present Government which has set its face against a Treaty in the very same
policy document from which I quoted, sets its face firmly in favour of agreement
making .
The
Government’s 10 point plan, the amendments to the Native
Title Act which were hotly disputed, particularly by the Indigenous
community, in itself, contains an endorsement of enhanced agreement making,
agreements called Indigenous land use agreements which have statutory force once
made and entered into within the statutory provisions.
If
you look at what Mick Dodson said in the AIATSIS series on Treaty making, you
will see that he suggests that we should not just harp on the word Treaty or on
particular Western legal concepts but we should look at this whole question of
agreement making and he describes an ascending order of agreements that we might
consider and one of those is statutory agreements.
For
some the big issue is sovereignty. But
I would suggest that those people who think that that is where you have to get
to, the truth is we have essentially already
made it to that point. The
expression I have often used is that in my view, as far as treaties are
concerned, the genie is out of the bottle.
It is already happening because of the High Court.
Once the High Court recognised in Mabo rights for land which were based
not on grants from the Crown or grants by parliaments, but on recognition of the
force of Indigenous law and culture, it seems to me we have reached the
essential point where there
is
a recognition of laws which flow from Indigenous polities.
You
see it when Premier Court having previously passed a law which abolished native
title in Western Australia, which the High Court struck down as in breach of the
Racial Discrimination Act, went out to the Great Victoria Desert, and met with
the Spinifex people and said “This is your country because you are the
traditional owners”. What was he doing but acknowledging a property right which
flows not from the sovereignty of the State of Western Australia or an act of
its parliament, not from the sovereignty of the Commonwealth or an act of the
Federal Parliament, but from rights which flow from Aboriginal law and custom
alone. And then he is followed by
Premier Gallop, who in quick succession, recognises the rights of the Djurabalan
and other Indigenous people. And
these are high order rights, rights to exclusive possession native title.
These are rights where the premiers feel the necessity to say, “you
will assure us of course, if you agree that State laws continue to apply”.
That
requirement itself suggests that there is a clear understanding that issues of
sovereignty arise here. And then you go to the Karajarri people and you go to the
Kiwirrkurra people who have successfully established their rights flowing from
their laws and customs.
The
Noongars here might say, “what’s that to us, how does that help us?”
On so much of our country native title has been extinguished by grants of
freehold and so on. I think it
means everything to you because what we have here is the recognition of the
status which comes from Aboriginal law and culture itself and governments and
the people of Australia simply have to come to grips with this. The preferred
way of coming to grips with it, is not by litigation but by agreement making
whether they are regional agreements, whether they are State-wide agreements of
the sort being promoted by Government in South Australia supported by the
Aboriginal Legal Rights Movement, whether they are more localised agreements,
whether they are pure native title agreements or something broader, does not
seem to me to be the focus. The
real point is that negotiations are underway on a broad basis and these
negotiations are based on the recognition of Aboriginal polities.
I
should mention that we have one of the children of Eddie Mabo here, Eddie Mabo,
what a wonderful thing. We have Greg McIntyre, who was part of the legal team on Mabo.
Isn’t it wonderful to have that connection with that incredible
judicial revolution which for the first time, gave proper recognition for the
rights of Indigenous people in this country.
We
have got a great opportunity at this time.
And can I just say to the Noongars here it gives me heart that when I
pick up “The West Australian”, I see a picture of people from the South West
of Western Australia who have just negotiated arrangements with a mining
company. I remember that those
people would have been totally ignored not ten years ago.
Those interests would not have been considered in the way they are now
being considered and people, including the Noongar people, are at the table in
many circumstances that they never would have been in the pre Mabo situation.
That is the recognition of the existence of intrinsic rights which flow
from Aboriginal law and custom.
Before
we got started this morning I engaged in stereotyping when I said to the
organisers that academic conferences never start on time.
Then I was engaged in racist stereotyping by saying Indigenous
Conferences are even worse. I went
immediately and confessed to Farley Garlett and other Indigenous friends of mine
here who I hope absolved me for this conscious act of stereotyping, and I
probably trespassed even more on the timetable myself which just proves you can
stereotype ex politicians, they can’t shut up.
But
I do want to say to this Conference that I am delighted that probably my last
public act as Chancellor of this University is to be part of the opening of
these discussions. I think it is a wonderful example of the capacity of the
University to bring together intellectual and community resources, to bring them
all into a dialogue which will help us to go down the path which I think is
absolutely fundamental to what sort of country we are, whether we are a decent
country, whether we are a country which has a proper place for Indigenous
people. I wish this Conference
well. I am sure it will be a
substantial contributor to discussion and debate on this important issue and I
look forward to participating in that discussion with you.
I now declare this Conference open.
Top