The Road to a Treaty

Aboriginal and Torres Strait Islander flags

Our nation’s future lies in settling the demons of our past. A Treaty with Australia’s First Peoples is the best path to get us there. If you make the long journey to Possession Island, that jewel in the turquoise sea off the tip of Cape York, the folly of our past and the path to a brighter and just future is as clear as those crystal waters. It was on Bedanug, as the Kaurareg people had called that island for thousands of years, that Lt James Cook and his trigger-happy Marines, hoisted the English flag, fired a volley from the Endeavour’s cannon and thereby claimed half a continent for King George III without ever carrying out the Royal orders to negotiate with the First Peoples of this land.


By Jeff McMullen


From that day in 1770 – through the violent dispossession of the Frontier Wars and the failure to negotiate treaties with the First People who never surrendered the ancient rule of traditional law and custodianship over their country – Australians have continued to deny the full merit of Indigenous law that has existed here for 60,000 years or more.


In many other parts of the world where some 370 million First Nations people live today, a Treaty is viewed as an effective legal agreement to define certain important rights and relationships, a starting point for negotiations, and a powerful expression of the meaningfulness of those Indigenous laws and customs.


Our retiring Chief Justice of the High Court, Robert French, has made it perfectly clear that such a Treaty in Australia could be settled because it would recognize traditional law and custom. It would not bring down the nation like a house of cards. Quite the opposite! It would erect for the first time a just and lawful foundation for the modern nation.


Australia’s political unwillingness to recognise the sovereign-to-sovereign relationship with our First Peoples through a Treaty creates our 21st century reality.

Surely we can do better than this poverty within, this ‘poverty trap’ in a very wealthy nation?


Our First Peoples overwhelmingly remain dispossessed of their human rights, deeply disadvantaged, disempowered in all of the political decision-making that impacts their lives and discriminated against in so many tragic ways.


As a consequence, our modern Australian nation is weakened, standing shakily on hollow, dubious, legal foundations. This holds us back from genuine equality and from embracing the full strength of the world’s most ancient multicultural diversity and the Indigenous value of custodianship, which can guide many different people to co-exist in this land with respect and a unified, long term vision of how to preserve the land for future generations. A Treaty is about the common good.


Treaty is not about separation, superiority of any culture or about white or black supremacy in terms of power. Indeed it was such racist thinking that created the space between us in the first place, an exclusion of the First People that has lasted for almost two and a half centuries.


Treaty is simply one of the best legal options, based on global evidence, to recognize the rights of First Peoples on the road to making things better.


Of all British Commonwealth nations with First People, Australia stands alone with a racist Constitution that permits discrimination, and in the absence of a Treaty, historic injustices continue unchecked. What a contrast to Canada where Section 35 of the Constitution recognizes Aboriginal people and reaffirms their Treaty rights.


This illustrates how negotiation of Treaties and Constitutional reform need not be mutually exclusive, however minimalist Constitutional change without even a non-discrimination clause as currently discussed by Australian Government does not come close to the substantive change sought by most Indigenous people through the Treaty process.


Either option requires leadership, mutual good will and political trust. Given the Realpolitik, the centuries old pattern of political treachery by Australian Governments towards Indigenous people, I agree with the late and great Aboriginal writer, Kevin Gilbert, who wrote “Because a white man’ll never do it.”


We need a heart transplant in our national leadership. We need far more courageous and visionary Prime Ministers of the calibre of Canada’s Prime Minister, Justin Trudeau or the United States President, Barack Obama.


These leaders have raised great hope among First Peoples by listening to the priorities of their sovereign equals, the Native American and Indigenous Chieftains of North America.


On Obama’s watch, the rights of Native Americans have improved dramatically through a direct sovereign-to-sovereign negotiation process based on the relationships defined in more than 350 treaties. Obama’s Administration has delivered 3.3 billion dollars in compensation to tribes that had lost their just entitlement for the resources taken from their lands over the past century alone.


This leads me to my major proposal. To end the continuing tragedy of the poverty and widespread inequality endured by our First People in their own land, a national Treaty should recognise Indigenous law and custom, immediately settle the remaining Native Title claims stuck in the courts and also guarantee Aboriginal and Torres Strait Islander people the sub-surface mineral rights to the wealth of their lands.


My logic is that the depths of poverty, welfare dependence, chronic illness, housing shortages, unemployment, over-incarceration and suicide impacting so many of Australia’s 750,000 Indigenous people, can only be overcome through a transformational shift of some of the bounty of this land that is rightfully theirs.


Currently there are vast tracts of Commonwealth land that can be acquired by State Governments and sold off as they please. Although Indigenous people are viewed in Australian law as having title to about 30 per cent of the landmass, in most cases they are not able to benefit through just compensation for the mining and other uses of their land and waters.


Instead of another century of welfare dependency and poverty we need a transformational Treaty that empowers the First People and establishes a democratically elected body that represents their interests, advises Governments and works on a collaborative plan for a brighter future.


The necessity for such a sovereign-to-sovereign relationship, expressed in a Treaty, is underscored by 30 years of evidence gathered by Professors Stephen Cornell and Joseph Kalt in the Harvard Project on American Indian Economic Development. I have not only spoken to these people and studied the evidence closely, I have seen the transformation of the lives of millions of Native Americans.


When I arrived in the US as an ABC correspondent in 1972 and met up with the American Indian Movement at Wounded Knee in 1973, Russel Means of the Oglala Sioux told me that Native American life expectancy was 12 to 16 years behind the mainstream.


Today they have closed their ‘gaps’ to about 3.5 to 5 years.


During my 14 years in the United States I witnessed how many, but certainly not all, First Nations groups made rapid gains compared to our Australian pattern of national inaction. The key, the Harvard evidence shows, is self-determination expressed through sovereign control of development decisions, a relationship and a negotiation process formulated through Treaties.


This is the crucial missing element in Australia.


Treaty is the declared preference of Australia’s First Peoples and that is clearly acknowledged in the appendix to the report by the Government appointed Expert Advisory Committee on Constitutional Recognition.


Mopping up the stain of racism on the Constitution should not be the primary responsibility of Indigenous people but a task for the rest of Australians who, through silence, allow ongoing policies of child removal, institutional child abuse, the brutality of the prison system and the misery of dilapidated housing and wretched health.


Yes, Australians should erase the anachronism of Section 25 that is a hang over from Edward Barton’s racist view that some human beings are just not fit to have the right to vote. We also need to abandon the ambiguity of Section 51 (xxvi) that allows our Government to enact clearly discriminatory and damaging policies against Indigenous people.


Australia hypocritically pays lip service to Human Rights through the UN Declaration on the Rights of Indigenous Peoples and the Covenant for the Elimination of Racial Discrimination. Yet through the narrowest of interpretations of so-called ‘Special Measures’ completely out of step with international norms, the Australian High Court allows tragic top-down policy disasters like the Northern Territory Intervention, which have greatly increased Aboriginal suffering.


We should be considering Constitutional reform that bars any damaging discrimination on the basis of race, colour, ethnic origin, age, gender or religion.


Are we talking about meaningful constitutional change of this kind that addresses the glaring lack of human rights protection in this country? Of course not! The lawyers in Federal Parliament tip toe around the issue of Treaty while their Victorian counterparts show that it is perfectly feasible to negotiate directly on a legal agreement that is shaped by the local, grassroots authority of myriad Aboriginal representatives across the State.


Around this country I have sat with Aboriginal and Torres Strait Islander people for some 50 years. I am certain that I share their deepest belief that rather than minimalist and near meaningless incremental change, Australia needs a bold and hopeful Treaty with its First Peoples.


* Jeff McMullen took part in the discussion, Is a Treaty the Best Way to Ensure the Rights of First Peoples? at Western Sydney University on Monday 24th October 2016. This is an edited transcript.

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Date: 4th November 2016; Time: 4.00 pm to 6.00 pm; Venue: City Flinders Convention Centre, Level 12, Victoria University, 300 Flinders Street.!topic/wgar-news/57bJU5T2lHQ

"Join us as we open up the discussion on Aboriginal Sovereignty and the Treaty process currently underway in what is now known as Victoria.

"The first of a series, this seminar aims to raises awareness of the concepts of First Peoples' Sovereignty, what a Treaty could look like and who has the right to negotiate it.

"Presented by the Moondani Balluk Academic Unit.


All are welcome – please register to attend ( ).

Christian Perspectives on Treaty, Sovereignty and Constitutional Recognition

An Ecumenical Forum!topic/wgar-news/8-EJASVlCBk

"Keynote speakers will be:

Stuart McMillan - The President of the Uniting Church in Australia; and

Ken Sumner - a Ngarrindjeri man from South Australia and

Victorian State Director of the Uniting Aboriginal and Islander Christian Congress (UAICC/Congress).


November 09, 2016 at 7pm - 9pm

[Registrations at 6:45pm]


Wesley Uniting Church

148 Lonsdale St

Melbourne, Victoria 3000



Jill Ruzbacky · · 03 9251 5266

RSVP here online, or by phoning 9251 5266 and leaving your name and a contact telephone number."

By Paul Muldoon

Indigenous ‘recognition’ or a lawful relation between peoples?

A successful referendum on the recognition of Aboriginal and Torres Strait Islander people may once have looked like a fairly good prospect. The failure of the founders to make any mention of Aboriginal people in the Constitution seemed self-evidently in need of correction, the proposal enjoyed bipartisan support in a parliament that could agree on little else, and, in the person of Tony Abbott, it found a prime minister who said he was willing to ‘sweat blood’ for it. Such, it seems, was the confidence (or was it in fact the desperation?) of the political establishment that it blithely commenced its ‘yes’ campaign, ‘Recognise’, before the substance of the proposal had even been decided. And yet the chances that we will even have settled on a question before 27 May 2017 rolls around—this being the date originally favoured by Abbott—now seem increasingly slim. For all the goodwill built up (and all the public-relations exercises undertaken) during the six years since Prime Minister Julia Gillard first returned it to the political agenda, recognition would appear to be on the brink of failing. What happened?


Lots of things, to be sure, but three expressions of dissensus stand out as especially noteworthy. In the first place, conservatives took umbrage at the proposals for reform put up by the expert panel appointed by Gillard in 2010. Tasked with reporting to government on possible options for constitutional change, the panel set its sights on the historically anachronistic and morally unconscionable references to race surviving in the Constitution. More specifically, it recommended that section 25, which allows the states to ban people from voting on the basis of their race, be deleted and that section 51(26), which gives the federal government the right to pass laws that can discriminate on the basis of race (and this irrespective of whether it is to the benefit or detriment of that race), be removed. In addition, it recommended that three new sections be inserted or adopted: one giving the Commonwealth government the power to pass laws for the benefit (and only for the benefit) of Aboriginal people (51A), one explicitly prohibiting governments from passing laws that discriminate on the basis of race (116A) and a third recognising Aboriginal and Torres Strait Islander languages as the ‘first tongues’ of the country while simultaneously acknowledging English as the national language (127A).


Although this suite of proposals could hardly be described as radical and was, in fact, largely in line with the position taken by the Law Council of Australia in a 2011 discussion paper, it met unwavering resistance from ‘the Right’. For those now commonly packaged up together as ‘constitutional conservatives’ but who actually divide on various matters among themselves, the recommendations of the expert panel carried two glaring problems. The first was the apparent inconsistency created by the attempt to outlaw discrimination on the basis of ‘race’ while allowing it in relation to ‘peoples’. Although the capacity to discriminate in favour of Aboriginal people is in fact required for the operation of legislation such as the Native Title Act (1993) and can conceivably be justified on the basis of indigeneity rather than race, conservatives such as Andrew Bolt objected to it on the basis that it infringed the liberal principle of equality. Adamant that all should be equal under the Constitution or, in other words, that there should be no recognition, Bolt insisted that anyone who was born here, lived here and could ‘call no other country home’ was by definition Indigenous and enjoyed as much right to the land as anyone else. Others, more amenable to the panel’s recommendation that the so-called ‘race power’, section 51(26), be converted into an ‘Aboriginal peoples power’, nevertheless took exception to the proposal for a racial non-discrimination clause. With greater and lesser degrees of cogency, they argued that the proposed new section 116A amounted to a one-clause Bill of Rights that would expose existing legislation to legal challenge and increase the powers of the judiciary at the expense of the legislative and the executive. Indeed, rather than serve the ‘recognition project’, they insisted, such a proposal would effectively condemn the referendum to failure—presumably because they would bend over backwards to ensure its defeat.


In the face of this resistance, Noel Pearson, himself a member of the expert panel and then a staunch advocate of the racial non-discrimination clause, opened a dialogue with conservatives in the hope that they might find some common ground. At first, it did not look promising. Where his interlocutors worried that a racial non-discrimination clause would lead to judicial activism, Pearson worried that its absence would leave the door open to the kinds of racial abuse Aboriginal people had suffered in the past. Remember the Stolen Generations? However, in what has now de facto become another ‘recognition package’, they eventually reached a consensus position around their own set of proposals. In line with the expert panel, Pearson and friends have supported the removal of section 25 and the replacement of the ‘race power’ provision, section 51(26), with a power that can only be used with respect to Indigenous peoples. In addition (and herein lies the real innovation), they agreed that provision should be made in the Constitution for the creation of an Indigenous body that could advise the federal parliament on all matters related to Aboriginal affairs. Though by no means without merit, particularly if the referendum is to pass, Pearson’s proposal clearly has its weaknesses. Not only does it not provide the iron-clad guarantee against abuse that a racial non-discrimination clause would (the proposed Indigenous body would have advisory but not veto powers), it remains of questionable legitimacy. Though Pearson might have succeeded in winning over the constitutional conservatives, his proposal for an Indigenous advisory body is the product of private deliberations rather than public consultations. Whether it will be regarded as an authoritative proposal is thus not yet very clear.


This brings me to the second expression of dissensus. If matters were not already complicated enough, they became even messier in 2015 when a collection of Aboriginal leaders (not, I hasten to add, the Aboriginal leadership as such) raised concerns about the whole process by which the referendum proposal was being developed. In an article published in The Weekend Australian, Noel Pearson and Pat Dodson, with the support, albeit unacknowledged, of Megan Davis and Kirstie Parker, argued that Aboriginal and Torres Strait Islander people had not yet been properly consulted. Regardless of its merits, therefore, the proposal for Constitutional recognition (already being publicly championed through ‘Recognise’) was running ahead of the community to whom it was addressed. There was the perverse possibility of a referendum on Aboriginal recognition that was not supported by the very people it claimed to be recognising. The apparent necessity of such consultations notwithstanding, Pearson and Dodson’s call for an ‘Indigenous process’ that would run prior to (and inform) the mainstream debate was resisted by Abbott on the grounds that there ought to be a single ‘national conversation’ about recognition. The result of this impasse was the formation of a ‘Referendum Council’, currently co-chaired by Pat Dodson and Mark Leibler, which has responsibility for guiding the ‘national discussion’. In recognition of the ‘vital role’ of ‘First Australians’ in this ‘national conversation’, the council has been empowered to hold a ‘concurrent series of Indigenous-designed and led consultations’. There has, however, been no suggestion that those Indigenous-designed and led consultations ought to take precedence over (or even give guidance to) the national conversation. Indeed, while Abbott readily conceded that Indigenous people should have the chance ‘to talk this through as thoroughly as possible’, he remained insistent that it ought to be a ‘we the people’ process.


The third, and potentially the most significant, expression of dissensus took place in February 2016 when the Victorian Labor government of Daniel Andrews held a historic meeting with representatives of the local Aboriginal community (the first such meeting in two decades). Called by Aboriginal Affairs Minister Natalie Hutchins in order to ascertain what the Victorian approach to constitutional recognition looked like, the meeting quickly took an unexpected turn. Before the minister had even arrived, the 500-strong representation passed a motion on the issue that unanimously declared: ‘We as Sovereign People reject Constitutional Recognition’. A second motion was later passed, this time with one dissenter, stating: ‘We demand the state resources a treaty process, including a framework for treaties, with complete collaboration with all Sovereign Peoples and Nations, and treaties are finalised and agreed upon by December 2016’. This was not, of course, the first time that the idea of a treaty had been raised in the course of the debate over constitutional recognition. Yet it was the first time it had been presented as a rival consensus.


What ought we to make of all this? Clearly, these disagreements over substance and process have the potential to endanger the referendum. Yet that, in itself, may be no reason to lament them. Change is always difficult in a democracy and radical change (which is to say change that goes to the ‘constitutional roots’ of the polity) even more so. And isn’t that exactly as it should be? Isn’t it right that there should be contestation over questions of both substance and process when one is trying to forge agreement on serious matters among stakeholders with competing ideologies and interests? Even ‘cautious democrats’ like John Stuart Mill (if that title does not flatter him too much) recognised that democracy works best when opinions can be freely expressed and freely engaged. Rather than irritants to the smooth progress of reform, disputation, resistance and the delays that they cause testify to a robust public sphere. What kind of democracy would it be if matters of public concern were not exposed to the contest of opinion and argument? Noel Pearson is thus quite right to criticise the emptiness of stage-managed processes that stifle discussion about the merits of recognition and the form it should take in the name of securing a faux consensus. As he correctly points out, ‘[w]e either win on the strength of our ideas and arguments, with integrity, truth and rigorous debate, or we don’t win at all’. Racial non-discrimination or not, Indigenous advisory body or not, separate black process or not, treaty or not, it would, then, seem to be all to the good. Surely these are matters that the public ought to discuss?


In principle the answer to that question is yes. Much has been gained (and could still be gained) simply from having a robust discussion about different forms of recognition and coming to understand the causes of dissensus. The exchange of arguments can itself be educative—or such, at least, is the radical hope of every deliberative democrat. The complicating factor in this case is that we are dealing with a matter that is at once of concern to the public and in concern of the public. By its very nature, in other words, the recognition of Aboriginal people is not simply something that concerns the happiness and well-being of the citizen body (the commonweal) but something that throws doubt on the existence of that citizen body as a body (a commonwealth). Regardless of the name one uses—‘First Nations’, ‘original inhabitants’, ‘Indigenous peoples’—the same question persistently arises: does it make sense to keep talking about ourselves as a people in the way ‘we’ have been accustomed to do up until now? Would not granting recognition (in whatever form) finally confirm that there are (at least) two peoples here and consequently that ‘we’ are not a ‘we’ after all? As Abbott was perhaps dimly aware when he balked at the idea of an ‘Indigenous process’, the democratic contest of opinion is premised on the idea that the public sphere is shared in common and visible to all. What was being implied about commonwealth by the suggestion that Aboriginal people needed to discuss this matter on their own? Could it be that it was not merely public opinion that was divided, but the public body itself?


Abbott, it seems, was genuinely taken aback by calls for an independent Indigenous process. But he probably shouldn’t have been. Truth be told (not something we are especially good at in this country), the idea of a commonwealth has always been a bit of a lie when it comes to Aboriginal and Torres Strait Islander people. Excluded from the constitutional negotiations and settlement of 1901, their difference from other citizens was, from the very outset, marked by their civic invisibility. Indeed, if honesty was the measure being applied, one could do a lot worse for a preamble to the genesis text of Australia than: ‘in the beginning there was a failure of recognition’. Left out in the cold, politically speaking, Aboriginal people effectively had to fight their way into the Commonwealth, battling strong opposition all the way. That (and really only that) is what makes the 1967 referendum so important. Though the constitutional reforms then agreed were actually rather modest—the federal government simply acquiring the power to make laws for Aboriginal people—the overwhelming success of the referendum became a symbol of victory. After a long conflict, and with many defeats, Aboriginal people had, it seems, finally won their place in the Commonwealth.


Even after they were formally included, however, the situation of the ‘first Australians’ remained anomalous, their rights and interests (particularly in land) always potentially at odds with the happiness and well-being of the rest of the Commonwealth. From that day till this, the infelicity of their inclusion has been underlined time and again by the willingness of governments to sacrifice those rights and interests for the sake of the commonweal. As the qualifications and restrictions placed upon native-title rights in the wake of their ‘discovery’ by the High Court clearly demonstrated, that which is in the interests of Aboriginal people and that which is (or is taken to be) in the interests of the general public are by no means the same thing. Being a ‘first Australian’ in such cases has tended to mean being the first to lose out. Should the rights of Aboriginal people stand in the way of national development, the way can always be legislatively cleared. While the invisibility of 1901 has now been corrected, therefore, the untruth of commonwealth continues to express itself in the perception that ‘their’ rights are a threat to ‘ours’ and must be curtailed accordingly.


If proposals for the recognition of Aboriginal and Torres Strait Islander people call up the spectre of division, then, it is not simply because they acknowledge a distinction between ‘us’ and ‘them’. It is also because they have the potential to expose the conflict between ‘us’ and ‘them’ over land and sovereignty that commonwealth denies or erases. Clearly, one ought not discount the possibility that recognition will lead to ‘a more complete commonwealth’, as Noel Pearson has claimed. But it might just as well lead to the realisation that there has never been a commonwealth here at all. At present it looks like an each-way bet. Is it any surprise, then, that it is the conservatives who have been the most attuned to the political stakes of recognition, and the most worried about its political implications? As conservatives appear to have understood all along, recognition is not about who Aboriginal people are (that is, about how ‘we’ should name ‘them’) but about who they are in relation to us. And that is a rather more complicated, and potentially far more explosive, question.


What seems to trouble the constitutional conservatives more than anything else in this regard is the deeply ambiguous status Aboriginal people have as a result of their prior occupation. As the acknowledgement of the traditional owners now ritually performed at official functions makes manifest, Aboriginal people are simultaneously one, and not one, of ‘us’. As citizens who are always more than citizens, they unsettle the idea of commonwealth and inspire fears of its dismemberment. Their prior occupation—so easy to acknowledge ritually and symbolically and so hard to countenance legally and politically—opens up the possibility of a rival claim to land and sovereignty that Australia has not yet come to terms with, a few nods in the direction of land and native-title rights notwithstanding. Taken seriously (and how else can it be taken?) the recognition of the first inhabitants as a distinct people would confirm what Australians have for so long tried to deny: that Aboriginal people are not just citizens, nor even citizens-plus (that is, citizens with special rights), but members of a distinct polity with whom we have not yet reached a lawful arrangement.

Ultimately all the expressions of dissensus in the recognition debate come back to this question of unity and division. The discussion about the merits of discrimination, the proposal for an Indigenous advisory body, the request for a separate, Indigenous-only consultation process, and the demand for a treaty are in the end about nothing other than identity and difference. And should we be surprised? What else could recognition be about other than the recognition of difference? The idea that Aboriginal people are culturally distinct has, of course, long been accepted. Though their ancient culture has at times been viciously maligned or, what is sometimes worse, cynically appropriated, its existence has never been doubted. The idea that Aboriginal people might be legally and politically distinct has, however, always been strongly resisted. Mabo opened our eyes to the fact that there is another system of law operative in the country and a small step was taken towards granting it the recognition it was due. Yet we still seem a long way—sometimes a long, long way—from working out how the relationship between their law and ours ought to be configured.


One thing that surely cannot be denied any longer is that it is a relationship. The idea that we are all Indigenous is certainly one way of capturing the sense of belonging to, and affection for, this country that many of us feel (whether we were born here or not). But as an argument in favour of equal rights, and against the recognition of Aboriginal difference, it simply doesn’t wash. Aboriginal people are differentiated, not simply by the fact that they were here first, and not simply by the fact that they have a common experience of discrimination, but by the fact that they respect their own law and belong to their own polities. Sceptics may, of course, still demur. But the ground upon which they stand has been shaky ever since the High Court decided that the substance of the common-law right of native title was to be found in a system of law that predated British settlement. Engaging honestly and faithfully with this system of law would seem to require something more than symbolic statements of recognition or the removal of references to race in the Constitution (which is not to say those things aren’t necessary as well). The foundations of the polity need to be revisited and a constitutional arrangement struck that does not simply unite the states in a federation but create a just and lawful relationship between Aboriginal and non-Aboriginal people. In the end there may be no other way to do this except by following other Commonwealth countries in concluding a treaty with the First Nations. I’d like to think that Australia is now mature enough to embrace rather than spurn such an idea. Either way, however, I suspect it will not be able to hide from it forever. Anything else would be a failure of recognition.