A TREATY AS A FINAL SETTLEMENT?

 

By Michael Mansell

 

More often than not, the Aboriginal movement works on one issue at a time. For instance, if we have a land rights campaign, economic and legal issues only arise if the land campaign cannot avoid those other issues. We mostly campaign either for customary law, or education, or jobs but rarely do we take them all on at the same time.

 

The treaty debate will pull all these issues together. Or more accurately, it should. A treaty connotes a final settlement, a putting to an end of the piddling around the edges of things needed to give Aborigines and Torres Strait Islanders their full entitlements. 

 

Of course Aboriginal people might not want a treaty. After proper consultation it may be a collective choice that a treaty might not deliver what’s needed. Whether a treaty is the best form of advancing the Aboriginal cause is as important a question as is the content of a treaty. But both these matters can be dealt with later. There are much more pressing treaty issues for which at least a preliminary policy is needed.

 

The prospect of a treaty provides indigenous people with a unique opportunity to discuss their individual views on the long term collective future of our peoples. The treaty idea provides a focus to look at the bigger picture, and deeper thinking, all of which is central to planning an Aboriginal vision.

 

A treaty that deals with the consequences of 200 years of dispute; of settling an outstanding race issue; that seeks to end the domination of one people by another; and is based on ideas generated from those who have suffered, is a political settlement.

 

The treaty would lay down a political framework from which indigenous peoples may begin the long haul towards a better future. That treaty would also define the limits of white political domination of indigenous peoples.

 

I can visualise a treaty where Aboriginal people to control vast areas of land and seas, with a unique form of self government, developing an economy and planning social community development. The treaty would not spell out how it is to be done: it would allow for it to happen.

 

Take education for instance. One of the many inadequacies of  the school curriculum is that it is based on white/European values. The history of the pioneers of Australia, and the founding of the nation may be important to the majority. But not to Aborigines. It is more likely to be a sore point, seen as a subtle form of gloating.

 

The treaty might provide for Aboriginal communities to be able to design or alter curriculum, but the treaty would not say what the curriculum should be. That would be left to local people to act, if they wished.

 

The power given under the treaty might allow for replacing “white” history with a history of the Aboriginal struggle for justice, raising awareness of our political champions like Oodgeroo Nunuccal ( Kath Walker), Charles Perkins, Kevin Gilbert and Neville Bonner. The effect would be to give our children a positive view of their history, and for non-Aboriginal children another version to think about. 

 

So far we have many statements of principles and policies that are described as the indigenous vision, and they will be useful in the coming discussions. But we do not have anything that ordinary people can understand- something that can be translated into a picture in our minds of where we will be living and the type of lifestyle we might have, what land and resources we will have as a people, who will be making political decisions that affect our lives and so on.

 

What tools will Aboriginal people need in developing a clear, working vision that is based on Aboriginal entitlements? One such method commonly used by societies is to look backward to see that which lies ahead. This is particularly relevant to Aboriginal people because the rights we once had have been forcefully taken from us. And the lifestyle we were once comfortable with has been rapidly changed by the actions of others.

 

Aboriginal people owned the whole of the continent before the invasion. There were differences between the tribal groupings but those differences were outweighed by the similarities. We were one people made up of many tribal groups. We were, in todays parlance, a nation of people. We were a sovereign people.

 

This background is particularly relevant to a treaty. If we were sovereign people then, we must still be today, for a right is not lost just because it has not been able to be exercised. If so, Aborigines can make a treaty with the Australian government as an equal, not as a subordinate. And the basis for certain areas of lands being returned under the treaty is wrongful dispossession of ownership, thus avoiding the indignity of having to justify to the thief why certain lands are to be returned.

 

The past created rights which form the basis of a negotiated treaty.

 

The Australian government takes a very different view of the relevance of the Aboriginal past to factors to be considered today. For the government, facts about Aboriginal connection with the land, and how the white invasion and subseqent domination affected Aboriginal people, is a matter of influence. The past does not create rights for Aborigines, although it might influence government willingness to grant a benefit.

 

Out of this disagreement about the effect the past has on Aboriginal entitlements comes a real complication for a treaty: the matter of sovereignty. The Australian government position is that it, and it alone, represents the sovereign authority of Australians. Australians include Aborigines. In Australia there can be only one sovereign, the government argues, and the making of a treaty with Aborigines and Torres Strait Islanders would undermine that position. For that reason alone the government is opposed to a treaty with indigenous peoples.

 

That position might be different if indigenous peoples agree the sovereignty of the Australian government is indissoluble, and the treaty acknowledges that.

 

On the other side of the coin most Aborigines would be unlikely to give up anything, including a right not exercised for so long a period. Look at land rights. Aborigines were denied any rights to land until the watershed Northern Territory land rights change in the 1970’s. No Aboriginal had agreed to surrender any future right to land before then.

 

It seems the same with sovereignty. It is unlikely Aborigines would agree to the condition required by the government to enter into a treaty.

 

While the past spells out the basis of current and future entitlements, it has to be recognised that the nature of a treaty involves compromise. The past rights we had opens up the possibilities for our future, provides relevant information on which to base decisions and creates a political base from which a treaty can be entered into. The past is not a yoke around our neck: it opens our minds to the possibilities and gives our cause a focus. This point applies equally to governments, not just Aborigines.

 

The competing claims and positions on sovereignty could be dealt with in a way that enables both sides to maintain their high moral positions while advancing an agreement. Statements external to the treaty document could allow the Australian government to maintain the view there is only one sovereign. At the same time the Aboriginal movement could maintain its people have the right to exercise self determination because they are a sovereign people. The process of self determination includes the right to establish an Aboriginal nation or nations politically independent of Australia.

 

In exchange for the government making a treaty Aboriginal people could agree to suspend any right to pursue self determination outside the treaty terms, but only so long as the treaty was honoured. This overcomes the lessons to be learned from treaties made elsewhere that have been watered down by decisions of governments and white courts.

 

Under this exchange a treaty could be silent about sovereignty.

 

At some stage in the development of treaty discussions, the maps will need to be brought out, all rights Aborigines want to exercise spelt out and the relationship between Aborigines and Australians clearly defined. For practical purposes, regardless of the terms of the treaty, there would be a great interdependency between black and white. For this reason changes, for example, to education and training, employment prospects through to policing matters would all have to be carefully examined to make them workable.

 

But all those things tend to flow from broad agreement on what a treaty is intended to achieve, and where it can help indigenous peoples advance to. So in a sense, development of an Aboriginal vision is more urgent than are the practical things a treaty would produce on the ground. This does not mean that problems needing urgent attention have to await the outcome of a treaty before they are addressed. The problems confronting Aborigines now demand urgent remedies. But at the same time we have to set aside the time to consider our collective futures so we are not forever wasting our energies putting out spot fires.

 

We must win the battle of ideas. Our cause is a just one. Our quest is to convince others of the justice of our cause. To do that we must be the ones to lead the debate, by presenting ideas and challenging the old assumptions. If the test for white Australia is to be open minded and thoughtful, the task for us is to rise above our predicament and declare the solution. We must be prepared to answer the scary question - what will it take to satisfy Aboriginal people?

 

Should we win the battle of ideas there is the possibility of political change that could empower indigenous peoples and the desired social change could come as a result. If the final agreement sat comfortably with Aboriginal people it would be the best cure for healing the pains of the past, and have much more meaning than an apology.

 

Even if a treaty did not materialise the focus on indigenous rights will be a welcome change. Our minds can be opened to greater possibilities. The very discussion enables us to ignore the “practical reconciliation” agenda being shoved down our throats. It also will help identify steps that can be taken now by governments, and those small changes might set the pattern and climate for a treaty. We have nothing to lose.

 

Michael Mansell

 

June 2002