At the beginning of the twenty-first century, the public culture of Australia remains riven by disputes over the status of indigenous people in Australia. This continuing dispute is a loose hanging thread in the web of our civil society. I argue here that the Australian polity, even after two centuries of occupation and legal wrangling, still offers no clear and just status for indigenous people.
Australian judicial decisions on issues of Aboriginal status make interesting reading. Even the High Court’s judgement in Mabo and Others v. The State of Queensland unanimously confirmed that the validity of the acquisition of sovereignty by the Crown can not be challenged in municipal courts. In other words, the acquisition of sovereignty is an Act of State that cannot be reviewed. No challenges to the validity of Australian state sovereignty will be entertained before an Australian court.
In the end, it must be concluded that the denial of the existence of Aboriginal nations in Australia by this case law accords our nations the status of an anomaly among the settler colonial states. Unlike in Canada and New Zealand, as I will show in this article, no treaties or agreements were concluded with Aboriginal people. The monstrous injustice of the seizure and dominion involved, and the lack of consent and treaties, remains a stain on Australian history. It is the chief obstacle to constructing an honourable place for indigenous Australians in the modern nation-state. That place now must be found through and beyond the limits of a legal discursive framework that dehumanises and dehistorizes Aboriginal people, rendering us as the mere wandering brutes of Hobbesian and Rousseauian mythology.
In a protracted public debate during the year 2000, following national consultations over a ten-year period, the Council of Aboriginal Reconciliation presented to the Prime Minister the Rt Hon. John Howard the Draft Document of Reconciliation. His rejection of this document on the spurious grounds that only ‘practical reconciliation’ can ameliorate the ‘problems of the Aborigines’ has been interpreted as his rigid refusal to recognise Indigenous societies as pre-existing entities with rights and entitlements. His rejection of this innocuous document was followed by a counterproposal from Aboriginal leaders for a renewed treaty commitment. The idea of a treaty between our nations thus requires explanation.
In Australia, there has been an almost comprehensive rejection of the idea that Aboriginal peoples might be self-governing within the limits of Australian law. The exceptions are minor such as the right to practise narrowly interpreted ‘traditions and customs’ on Aboriginal land in some demarcated areas, some limited rights under local governance statutes, and the narrow recognition of native title as pertaining only to the internal incidents of native title in the Native Title Act of 1994. In a limited way, the judiciary has adopted its advice on the relevance of customary law in evidence and sentencing. The Australian Law Reform Commission recommended a limited means of recognition by amending some statutes, but the recommendations have largely been ignored.
So, how can it be explained that indigenous relations to land that pre-existed sovereignty and survived it, as the High Court of Australia has explained, has been legally recognised, and yet the full body of ancestral indigenous Australian laws and jurisdiction are deemed by a narrow, historically distorted notion of sovereignty to be incapable of legal recognition.
In this article, it is possible only to touch on some of these issues. In setting out some of the evidence here, I provide an interpretation that shows that it was the failure of colonial governments to make treaties with our ancestors and the subsequent body of justification for that failure, both judicial and political, that deprive Australian indigenous peoples today of the dignity of exercising fully the body of ancestral law in coexistence with the sovereign state. The idea of sovereignty on which this exclusion lies is a fictive account of settlement, a fictive account of dominion and a distortion of more than four centuries of the exercise of sovereignty by the British Crown in the New World.
Of the terra nullius proposition, it was said in Mabo (No. 2: 469) that:
The facts as we know them today do not fit the ‘absence of law’ or ‘barbarian’ theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands.
Thus I argue that, just as British sovereignty did not wipe away Aboriginal title, neither did it wipe away Aboriginal jurisdiction. Aboriginal government under the full body of Aboriginal customary laws, must by the same logic as the discovery of native title at common law, survive annexation of Australia by the Crown, even if in some qualified way.
The plain denial of justice in the suppression of Aboriginal customary laws and jurisdiction results from the one-dimensional notion of sovereignty that has developed as a defence of the indefensible. Let me explain what I see as the relevance of treaties to this continuing dispute in Australian society about indigenous people. I will first consider the historical uses and characteristics of treaties; secondly, the history of agreement-making between indigenous and non-indigenous Australians, and finally, the debates about a treaty in Australia.
Treaties in historical perspective
According to the records, the British have used treaties for the settlement of disputes since the thirteenth century. They have been common practice between nations and states, either in the form we now know them at international law or in different forms which stem from past customary law practices. In the entry on ‘treaty’ in the Oxford Historical Dictionary, we find the claim that the first formal and written treaty made in England was made in 1217 between Henry III and the Dauphin of France. The Treaty Rolls preserved in the Public Record Office in London commence in 1235 during the reign of Henry III. The catalogue of the British Library lists boxes of material relating to treaties dating from 1131 in the case of Papal Bulls.
When the British and other European imperial powers entered the New World, treaties and agreements with indigenous people ensued. Following the War of Independence in the colonies of America, Chief Justice Marshall of the United States Supreme Court explored the dilemma of the conflicting rights of settlers and indigenous people and adopted the compromise known as native title at common law. The Chief Justice reviewed the practice of Europe which developed after the 1537 Papal Bull, and declared that the ‘rights of the original inhabitants were, in no instance entirely disregarded … They were admitted to be the rightful occupants of the soil, with legal as well as just claims to retain possession of it.’
The fundamental rationale was equality as a principle of the rule of law, as Richard Bartlett has noted. This is a celebrated but not unusual instance of the recognition of indigenous peoples as the rightful occupants of the soil. The history of treaty-making in the New World extended over four-hundred years for the British and French and over five-hundred years for the Spanish, Dutch and Portuguese with divergent outcomes throughout the colonies. Imperial powers found it necessary in various situations to justify acts of domination for juridical purposes.
The starting point for European expansion in the fifteenth century was the near total absence of relations with extra-European peoples. Thus, after initial contact had been established, the potential approaches of the imperial entities to regulate relations included all of those from unilateralism to reciprocity. Between these two extremes it was possible to find variants that expressed relations of ambiguous equality and inequality.
In 1823, in the United States of America, a decision recognising the ‘rightful occupants of the soil’ and ‘domestic dependent nations’ was delivered by Chief Justice Marshall in Johnson v. McIntosh (1823). Richard Bartlett, writing about the case, says that ‘the equality declared by Chief Justice Marshall was tempered by a regard for pragmatic considerations’. The Supreme Court upheld United States’ claims of private purchase from Indian tribes of those same lands. ‘The court declared that the circumstances required “resort to some new and different rule, better adapted to the actual state of things”. The Indians were recognised as the “rightful occupants of the soil”, but their title was “necessarily, to considerable extent, impaired”.’
Such general justifications played a crucial role in European overseas expansion. They had inherent universal applicability and included such well-known terms as ‘the right of conquest’, and ‘humanitarian’ or ‘civilizing intervention’. Significantly, moreover, such justifications referred to rights that were specifically claimed by the European powers, such as the right to propagate the faith unhindered. Formally established juridical relations coexisted alongside claims to rights which the European powers never succeeded in securing in practice or which could only be secured at a much later stage. During the era of European expansion, international law was taken to be universal and its norms were considered applicable to the whole world. The point of contention was determining who were subjects of such a universal system of norms.
Thus, despite the findings at law as to indigenous nations being the ‘rightful occupants of the soil’, the doctrine of discovery was interpreted as an exercise of dominion that impaired the standing of these indigenous nations. Nevertheless, the formal recognition of indigenous peoples having the status of indigenous nations had considerable advantages over the situation in Australia.
In North America from the time of first settlement, in the years 1533 to 1789, that is, prior to independence and the Marshall cases, the administrators of British colonies treated with Indian nations as equal sovereigns. They were relationships ‘between sovereign nations’ that ‘accorded tribes an equivalent status to that of the colonial governments’. Dorsett and Godden describe the situation as follows:
… in many cases the British Imperial Government instructed colonial administrators that land could only be acquired by purchase from the Indians. This policy was formalised, and applied uniformly to all the North American colonies in the Royal Proclamation of 1763. The Royal Proclamation prohibited all private purchases of lands covered by the Proclamation. This gave the Crown the sole right to purchase Indian lands.
After independence, up until 1871, the United States government assumed the role of the British and Spanish governments and continued the earlier British policy of treating with the Indians as members of sovereign nations. These treaties were made under the authority of the federal treaty-making power enshrined in the United States’ constitution.
In 1871 treaty making with the Indian tribes was discontinued as it was seen as an impediment to the assimilation of Indians into white society. In that year, in a rider to the Appropriations Act, Congress declared that no more treaties could be made with the Indian nations. Thereafter, ‘agreements’ rather than ‘treaties’ were made with Indian peoples. Between 1911 and the 1970s, Congressional practice was to obtain some kind of consent from the Indians for any action it was considering which might affect them. Current practice is to use negotiated settlements as a means of dealing with complex issues.
Treaties in Canada proceeded from a different basis from those in the USA. Prior to Confederation, almost forty treaties, the majority being peace treaties, were negotiated between First Nations and the British Crown during the period 1693 to 1862. In Canada, however, Indian peoples were not considered sovereign powers. Later treaties tended to follow a pattern of surrender of lands in return for particular rights — for example, continued hunting and fishing rights, or supplies of monetary payments.
A new section, Section 35, was inserted into the Constitution Act in 1982 at the time of the patriation of the Constitution. It stands outside the Canadian Charter of Rights and Freedoms, and provides that ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed’. Further, at subsection 3, it includes land agreements as ‘treaty rights’ in order to achieve ‘greater certainty’. In addition, Section 35 provides that ‘The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights of freedoms that pertain to the aboriginal peoples of Canada’.
The Treaty of Waitangi, signed in 1840, between the Maori and the British colonial government, is recognised as the founding document of New Zealand and ‘resides in the constitutional field’ of its system of government. The treaty is in two versions: English and Maori. Because they vary in meaning quite substantially, there were problems of interpretation such that the English version had been privileged over the Maori. Only recently, legislation has been enacted providing that the Maori version is to be used when dealing with interpretation.
The Treaty established the right of the Crown to govern in New Zealand and the terms of a peaceful settlement. In exchange, Maori rights to their lands, resources and taonga were affirmed and Maori were granted the rights and privileges of British citizenship. When New Zealand became constitutionally independent from Britain, the treaty obligations of the British Crown were transferred to the Crown in New Zealand. Unlike Australia, New Zealand has a unitary rather than federal structure of government, and while it is a constitutional monarchy it does not have a written constitution. The government’s power to deal with Maori affairs derives not from a nominated head of power as under the Australian Commonwealth Constitution, but from the inherent plenary power arising from sovereignty itself.
The Treaty provided that the Crown’s right to govern was dependent upon it meeting its obligations to Maori people under Articles of the Treaty. Recently the Treaty has been considered in a number of landmark cases dealing with Maori rights. In interpreting the Treaty, the courts historically held the Treaty to be of no legal force, in itself, without incorporation into domestic New Zealand law. Dorsett and Godden explain that over the last ten years there has developed a significant body of case law which has clarified the treaty obligation of the Crown. Of particular importance in marking a change in the attitude of the Court was the Maori Land Council Case where the Court found that the Treaty should be interpreted in a broad manner and as an evolving instrument taking account of international human rights norms. A number of treaty principles were elucidated in the course of that decision. Sovereignty was exchanged for the protection of Rangatiratanga; the treaty established a partnership imposing on the partners a duty to act reasonably and in good faith; and Maori are to retain Rangatiratanga over their resources and taonga.
The idea of a treaty in Australia
Throughout Australian history, entrepreneurial, evangelical, and other humanitarian figures in our history have attempted by various means, including attempts at treaties, to resolve the hostile relationship between the indigenous and settler Australians. However, unlike in other settler societies, no treaty documents or treaty proposals were officially recognised. Judicial decisions declared Australia uninhabited wasteland. Consequently, the large body of law centred upon developments in the USA and in Canada, has not developed in Australia. This is despite numerous attempts at settlement and offers of settlement.
Henry Reynolds examines the evidence of treaty-making in Tasmania in his book, Fate of a Free People. In the early years of the first colonial settlement in Tasmania a treaty with the ‘Chiefs’ of the Aboriginal ‘tribes’ had often been discussed and considered. It was suggested that a treaty should have been entered into in order to restrain and prevent the extermination of the Aborigines by settlers. In Governor Arthur’s correspondence, Reynolds finds explicit discussion of the need for treaties. This is not so surprising given the international context of treaty making that we have just discussed. As Reynolds argues, Arthur was concerned enough to communicate his desire that the Colonial office deal with negotiating a treaty of some kind with the Aborigines:
His proclamation of April 1828 contained references to an ‘intended negotiation’; to his plan for a ‘negotiation with certain chiefs of aboriginal tribes’. But how to conduct such a negotiation was another matter altogether. Neither side seemed to offer scope for conciliation. The Aborigines fled at the sight of Europeans, who in turn feared the silent spear. Enquiries made by Arthur through the magistrates in December 1827 failed to produce any one at all ‘willing to incur the hazard of attempting to open a conciliatory communication with the Aborigines’. Arthur wrote to Governor Darling six months later, expressing his lack of success in the attempt to ‘induce them to listen to any specific terms of accommodation’.
Yet the idea of a treaty still preoccupied the mind of Arthur and later, George Augustus Robinson who was commissioned by Arthur to negotiate with the Aborigines.
Reynolds’ evidence shows that treaty making was well understood among the Tasmanian tribes. He concedes that we may never know with any certainty whether or not Robinson negotiated a treaty on behalf of the government. The conditions were not written down. However, he does conclude that the evidence suggests that he did reach an agreement similar to the treaties with tribes in North America, although the terms of the agreement were not honoured.
The well-known but ill-fated Batman treaty concerning an area of land now encompassing Melbourne met a similar fate. It was firmly rejected by Governor Bourke in 1835. The entrepreneurial Batman negotiated and signed a Treaty with the Koori of Victoria June 6, 1835. Billot notes of the settler parties to these documents — Batman, Wedge and Gellibrand — that they ‘believed in the value of the treaties: at least, always gave strong indications of their faith in them’, even though ‘it was not, of course, expected that the treaty would be considered binding on the English government, but on previous experience, such action was considered to be proof of bona fides, and would justify approaching the home government for authorisation of settlement, thus over-riding the local Sydney authorities’.
Australian history has many gaps and work remains to be done. Whether agreements were sought in the following decades as the frontier violence raged across the continent, I do not know. Accounts by anthropologists Donald Thomson, R.M. and C.H. Berndt, and Ian McIntosh tell of a series of events in Arnhem Land in the Northern Territory from the 1940s. Thomson was commissioned by the Australian government to investigate the situation of Aboriginal people in the north-eastern part of that region after the killing of several Japanese fishermen and a police constable by Aboriginal people. Thomson trekked with Riawulla north along the coastline from the Roper River to find Wonggu, whose three sons had been imprisoned in Darwin. He was carrying the maak, or carved message sticks that the young men had carved as a message to their father, which Thomson passed to Wonggu when he finally made contact. Thomson negotiated a peace agreement with Wonggu. Wonggu promising to desist from killing and Thomson, committing himself to pursuing his case for land, peace and protection with the Australian government. The Yolngu then became engaged in various types of negotiation with the many strangers who came to their lands.
Ronald Berndt documented what he called the Arnhem Land adjustment movement that came into being late in 1957. In 1962, the clan leaders at Elcho Island prepared a demonstration in full view of all the residents of the mission, Aboriginal and mission staff alike, of sacred poles to protest to the missionaries the existence of their own religion. Such public revelation was unprecedented in Aboriginal life. He describes the events as follows:
… a memorial was set up near the old mission church at Elcho Island. A small, open enclosure held a display of formerly secret-sacred religious emblems that were being made public for the first time: the central traditional post had a Christian cross at its apex.
This was followed in 1962 by the creation of two panels of clan emblems by each of the clan leaders of northeast Arnhem Land at the mission at Yirrkala, Dhuwa and Yirritja. These were placed on either side of the altar, and again represented the most sacred and secret of the clan wangarr, or ancestral origins and meanings, never before revealed in public. These events involved months of negotiation between the clan leaders at their respective mission settlements and represented a turning point in the relationship between Aboriginal people and the missionaries at Yirrkala. In protest at the excision of their lands for bauxite mining by the federal government, the Yolngu clan leaders prepared the famous Bark Petition in 1963, prepared in ritual fashion and signed in English fashion, and submitted to the Parliament in Canberra. The meetings of elders to prepare the petition was the precursor to their subsequent litigation in Milirrpum v Nabalco.
In March 1972, the Larrakia people whose traditional territories covered the coastal area in which the city of Darwin is located in the Northern Territory, sent a petition to the Prime Minister, Billy McMahon, requesting a treaty process be established. The petition was signed by five men of the Larrakia tribe, and a report on it was published in the Northern Territory News on 30 March 1972. As Judith Wright tells the story:
Little was heard of this petition in the troubled days of 1972 which followed, and it was not until June that Mr McMahon replied. It was not appropriate, he said, to negotiate with British subjects as though they were foreign powers; and the reason that treaties had never been negotiated with Aborigines was partly that of the difficulty of identifying the people and groups with whom negotiations could be conducted.
A proposal for a treaty was raised by the late Kevin Gilbert in correspondence with Prime Minister Malcolm Fraser in 1979, at which time Gilbert had established a second Aboriginal Tent Embassy in an encampment at the site of present Parliament House. Gilbert’s impassioned arguments, published in several editions from 1987, set out his ideas on an Aboriginal Sovereign Position and were accompanied by a various versions of a Draft Treaty. His approach had little effect on the formulations of the problem as it was perceived by the Aboriginal Treaty Committee and The Makarrata proposal by the National Aboriginal Conference
In April 1979, the Aboriginal Treaty Committee held its first meeting. Its inaugural members were Dr Coombs, the first chairman, Dr Judith Wright-McKinney, Stewart Harris, Professor Charles Rowley and Professor W.E.H. Stanner. There was agreement to the content of the Committee’s first document sent out in November 1978, which canvassed issues such as a treaty as providing a kind of constitutional basis for the relationship of Aboriginal Australians to the Commonwealth and Australian society generally. Wright’s account noted that the difficulty for the Committee lay, not in convincing Aborigines of the worth of these proposals — Aborigines had been demanding the same for some forty years at that stage — but, in Wright’s own words, ‘with the attitudes and prejudices — and apathy — of the dominant Australian community’.
For five years this Committee tried to educate and persuade non-Aboriginal Australians to the idea of a national treaty to be negotiated between Aborigines and governments with the objective of settling wide-ranging historical, political, economic, social and ‘land-rights’ grievances, while charting a new course for the future. Judith Wright sets out her belief in a treaty between indigenous and non-indigenous Australians in the introduction to We Call for A Treaty, the publication that formed a report to the public on the work of the Committee:
Ultimately, therefore, there must be some instrument such as a treaty which will confirm for all time equal and just treatment for Aboriginal Australians wherever they live, putting their land and their rights beyond the reach of sovereign parliaments. There is no security for Aboriginal people in Acts of Parliament, which can be repealed or amended.
In June 1979, the National Aboriginal Conference called for a treaty between the Commonwealth and Aborigines. The Prime Minister’s reply to the Conference proposal for a Makarrata did not refer to the question of overriding the states. Wright noted that, ‘in his letter, he stated that he “would be pleased to discuss the concept of a treaty with the National Aboriginal Conference at a mutually convenient time, if they wish to do so”’. In November 1979, Senator Chaney, the then Minister for Aboriginal Affairs, welcomed the initiative and the Government funded the NAC to consult Aboriginals around Australia on the idea, not of a treaty, but of a ‘Makarrata’. This is a Yolngu word signifying an end of a dispute between communities and the resumption of normal relations, made known in W.E.H. Stanner’s ABC Boyer Lectures in 1969, Whither The Dreaming? Stanner’s description of the duelling ordeal undertaken by disputant parties in the Makarrata ceremony used phrases such as ‘blow for blow’, ‘the drawing of blood’, and it was clear that a public servant who had listened to the lectures had passed on a sanitised version of the term to his ministerial masters.
Asked for an opinion on the legal possibilities inherent in a treaty in 1980, the Attorney-General relied on the decision in Coe v. The Commonwealth of Australia, which denied that the Aboriginal people of Australia could be considered as a domestic dependent nation organised as a ‘distinct political society separate from others which had been uniformly treated as a state’. It also denied that they had legislative, executive or judicial organisations by which sovereignty might be exercised. If such organisations did exist, they would have no powers unless these were conferred by Commonwealth, State of Territory legislation. As to the claim to land, it was, said the majority judgment, ‘fundamental to our legal system’ that the Australian colonies became British possessions by settlement and not by conquest’. This was clearly a reference to the terra nullius doctrine rejected by the High Court twelve years later.
For many Aboriginal leaders, the proposal for a ‘Makarrata’ was already a dead letter. And, yet despite the Attorney-General’s opinion, following the influential advocacy of the Aboriginal Treaty Committee for a national treaty, the National Aboriginal Conference supported the proposal. The National Aboriginal Conference sought to negotiate solely with the Federal Government, first for ‘Agreement in Principle’, possibly to be entrenched in the reformed Constitution, and second, the negotiation of more detailed agreements for various regions. The proposed deadline for constitutional reform was 1988.
In the end, The Aboriginal Treaty Committee considered the divided opinion among government circles and organised Aboriginal groups, and wound up after proposing a parliamentary resolution, by asking the Commonwealth Government to negotiate a Treaty with Aboriginal Australians.
Dr Coombs, wrote to the Prime Minister on 21 February 1984, announcing the end of the Aboriginal Treaty Committee, putting a range of matters as to how the idea of a treaty with Aboriginal people would be advanced. The National Aboriginal Conference was wound up in June 1985.
Through 1990 and 1991, cross-party support developed for a formal process of reconciliation to be led by a council of prominent Australians, and the Council for Aboriginal Reconciliation was formally established on 2 September 1991. The ten years of educative and consultative work of the three terms of the Council, two under the Chairmanship of Patrick Dodson, and the last under Evelyn Scott, have caused a fundamental change in the terms of the debate. ‘Reconciliation’ is a key word in Australian political and social life, and a significant proportion of Australians support the idea, if the various polls and the estimated 400,000 people who walked across Sydney Harbour Bridge during the final public plenary of the Council at Corroboree 2000 in May this year are any indication. In September, Prime Minister John Howard, made it clear that any kind of agreement that his government would consider would be a reiteration of the policy of assimilation and make no mention of an apology to the ‘stolen generations’, a continuing right of occupancy, or any special rights or measures.
The frustration and anger of many Aboriginal people at the relentless efforts of governments to dispossess Aboriginal people were heard clearly in Patrick Dodson’s summary of the outcome of the recognition of common-law native title. In his lecture, Patrick Dodson set out the idea of a Framework Agreement as a process for the settlement of the outstanding inequalities in the relationship between the first peoples and the settler state. This proposal was communicated by a delegation of Aboriginal leaders, including Dodson, to Prime Minister John Howard following his rejection of the Draft Document of Reconciliation at Corroboree 2000. The Prime Minister likewise rejected the idea of the Framework Agreement.
His rejection of yet another offer from Aboriginal people for resolution of our outstanding grievances is only of minor historical importance, however. History will record and future generations will know that Aboriginal people have continued to assert the right to negotiate just terms and conditions of the seizure of their territories and resources and the proscription of customary laws, governance and ancestral jurisdiction.
Agreement-making and the potential for the settlement of disputes between indigenous and other Australians
Despite the formal rejection of a document of reconciliation by the Prime Minister, the outcome of the reconciliation process pursued in the last ten years necessitates an audit of agreement-making with Aboriginal people in recent times. Since the first agreements signed under the provisions of the Aboriginal Land Rights Act in the Northern Territory more than twenty years ago, there has been an astonishing proliferation of agreements between Australian indigenous people and resource extraction companies, railway, pipeline and other major infrastructure project proponents, local governments, state governments, farming and grazing representative bodies, universities, and many other institutions and agencies. Some are registered under the terms of the Native Title Act. Others are simple contractual agreements that set out the framework for future developments, such as the Cape York Heads of Agreement between the Cape York Land Council, the Australian Conservation Foundation and the Cape York Graziers’ Association.
There is a growing confidence in the process of agreement-making with indigenous people, and, at the same time, there is an increasing understanding of the flaws in the process that arise from the intransigence of state and federal governments in recognising these agreements. This intransigence prevents the formalisation of critically important aspects of these agreements such as their ability to run with the land. Such uncertainty is precisely the outcome desired by federal and state governments in order to discourage agreement-making with Aboriginal people.
These developments in relations between indigenous and non-indigenous Australians are evidence of creative thinking by those involved in grappling with the legacy of the Australian frontier. While the many attempts at treating with Aborigines in colonial times and in the early twentieth century were not translated into enduring outcomes it is clear that the need for agreements is both desirable and appropriate for several reasons, although there is formidable resistance to agreement-making with Aboriginal people. The agreements negotiated since the 1970s are evidence of a willingness to do what the ‘colonial settlers’ were unable to countenance, and that is acknowledge that another group of people were the owners and custodians of the lands and waters of Australia, and that, their descendants have a right to the possession, use and enjoyment of those lands and waters and to govern, within the limits of Australian law, their use and access by others, and to benefit from that use and access by others, as would any other group of people in rightful possession of a place.
The current treaty processes in Canada and the Canadian constitutional entrenchment of treaties and agreements provide a model favoured by many Aboriginal people in these circumstances. There is no evidence that there has been any detriment caused either to Canadian sovereignty or to the polity by these arrangements. That many recent agreements are affirmed by the Canadian Constitution is evidence that there are alternatives to the limited framework of the legal canon in Australia.
Adopting such a process, I argue, would open up the possibility for alternative arrangements in a post-frontier Australia that would accord a status of full equality to the traditional laws of indigenous peoples by mutual agreement. Such a polity would thereby include indigenous people within the civitas on a voluntary basis, rather than by coercion as a result of historical events. In any case, it is clear that the anomaly of Aboriginal status remains one that confounds agreement-making, and contributes to the insecurity.
We can only hope that future governments will take seriously the possibilities for legislation supported by constitutional amendment. Constitutional entrenchment of Aboriginal rights is the minimum requirement for overcoming the monstrous injustice involved in the seizure and dominion of Aboriginal territory.
Marcia Langton is the inaugural Chair of Australian Indigenous Studies at the University Of Melbourne. This article is an edited version of her Inaugural Professorial Lecture delivered in October 2000