Time for Treaty, By Tony McAvoy

On 30 March 2016 The Daily Telegraph ran the front-page headline ‘“WHITEWASH” UNSW rewrites history books to state Cook “invaded” Australia’. It had a large picture of Captain James Cook. The fact that the offending ‘guidebook’ was published by the University of New South Wales in 2012 and such guidebooks are de rigueur at most Australian universities did not inhibit the promotion of the story as news.

Nevertheless, the story did promote discussion of an issue that struggles to get any consideration in modern-day Australia. Indeed the absence of discussion surrounding the foundation of the colonies and their federation is surprising given the extraordinary resources and effort being put into the Recognise campaign. One would have thought that the drafting of amendments to provide for ‘recognition’ of Aboriginal people and Torres Strait Islanders in the Constitution would, out of necessity, have to at least attempt to accurately (and truthfully) characterise the nature of the relationship at the assertion of sovereignty by the British Crown.

The various Aboriginal ‘nations’ of the Australian continent had been existing in relative peace for many thousands of years when Captain James Cook mapped and claimed the east coast for the British. Of course, Cook didn’t discover Australia but rather, for the purposes of the European powers, engaged in the hunt for new colonies and in Britain’s case a repository for its failing social order. He named it New South Wales.

Under the European laws prevailing in the 1770s, the claim to new lands was not perfected by the claim itself and could be subject to counter claim if not populated. It was the arrival of the First Fleet that is purported to have been the act of erecting and establishing the colony of New South Wales as a British colony. The absurdity of such a claim is made readily apparent when one considers the extent of the colony. It encompassed the whole of the Australian mainland and coastal islands as far west as the 135th meridian. As a ready reckoner, you could roughly draw a line from Milingimbi in Eastern Arnhem Land, south through Coober Pedy, to Elliston on the west coast of the Eyre Peninsula. If I may be permitted to labour the point, according to the British that means the arrival of eleven ships in the First Fleet, comprising 1350 people, on Gadigal land at the newly named Port Jackson effected acquisition for Britain of the territories of the Ngarakwal people at Byron Bay, the Wik on eastern Cape York, the Kalkadoon at Mt Isa, the Yolngu in Arnhem Land, the Arrernte at Alice Springs, the Ngarrandjeri at the Murray River mouth, the Barngarla on the Eyre Peninsula, and all territories in between.

For the vast majority of Aboriginal people in Australia, our cosmology has our ancestors coming from our lands as the original creator spirits or being given life by our creator spirits. Our creator spirits imbued the lands and waters and sky with our songs and stories. The Adnyamathanha people of the Flinders Ranges in South Australia do not call them ‘stories’; they say it is their ‘history’. That seems to me to be a wholly more appropriate translation into English of the relationship between us, our ancestors, our cosmology and our land.

The archaeologists confirm our belief that we have been here since time immemorial and the anthropologists confirm our understanding that our territorial boundaries were largely settled millennia before the British arrival. The land, having been invested with the songs and narratives of the creator spirits in one form, is not conducive to change. Our law and world view does not permit of the acquisition of rights in land by any means other than descent.

How then did the British acquire our lands by establishing a colony on the lands of the Gadigal? Under the British law of the day, it was possible to acquire the territories of other people by conquest, cession or settlement. The British claim that there was ‘settlement’ of our lands. ‘Settlement’ can only occur where the lands are ‘desert and uncultivated’. That does not mean uninhabited. Its meaning in the late eighteenth century involves an agrarian viewpoint of land management. The failure of the British to appreciate the complexity and sophistication of Aboriginal land- and resource-management techniques, whether deliberately denied or not, was an imperial necessity and, in time, may turn out to be a significant marker in the development or downfall of the human species. For it is clear that Aboriginal Australia, in the period immediately prior to the British invasions, was arguably the most refined form of sustainable human existence this world will ever see. Of course, it was not perfect and it was never going to be able to resist the catastrophic changes rippling out of Europe.

But the inevitability of European domination does not equate to rectitude.

Putting morality to one side, a purely objective analysis should remove all doubt in any informed person’s mind that Aboriginal people were subjected to invasion, genocidal practices and oppression perpetrated by or sanctioned by the state. In this case the ‘state’ is the British Crown, and later the colonial governments in the name of the British Crown, and eventually the federation and the colonial governments in the name of the British Crown.

The dual questions now are whether Australians and the Australian governments should do anything about it, and if the answer is yes, then what should be done.

*       *       *

The focus on the inaccuracy of the foundational aspects of the establishment of the British colonies in Australia is important from both a historical and a legal standpoint. But rather than get embroiled in legal argument about the effect of the invasion, it is far more relevant to present-day Australians to put the discussion in terms of the moral well-being of the country and its people.

The moral well-being of Australia is poorer for the failure to come to terms with the past. The response from certain media commentators about the UNSW guidebook indicates a nation with a chip on its shoulder. The reason for Australia’s moral ill health is not just those things that happened in the past but what is still occurring. As Chris Sarra has recently put it, there is an ongoing failure to respect our humanity, which thereby diminishes Australia’s own.

More specifically, Australia is living a historical lie. The very notion that the British could simply come and take our land and resources is understood by many if not most Australians to be lacking in respect for the fundamental principle of human equality. The notion of settlement of other people’s lands is now anachronistic. In Mabo the High Court said we cannot go back. But in circumstances in which Australia is one of the most affluent and modern First World countries and yet Aboriginal people are made to apply for the return of lands from the Crown, or to undergo the belittling legal hearings that comprise the native-title processes, the inequity bites hard. That is without descending into the ugliness that is Aboriginal social policy.

Many Australians understand this inequality. I think that they also understand that the truth will, in a sense, set them free. We in Aboriginal Australia suffer some form of intergenerational post-traumatic stress disorder, and the rest of Australia suffers from a guilty conscience. Our responses are emotive and reveal the hurt and humiliation we continue to suffer, and the Australian governments are trapped by a perceived need to deny the truth in an effort to assuage the guilt of the denialists who vote.

The answer to the first question is ‘yes’: we, both Aboriginal people and non-Aboriginal Australians, need to do something about this fundamental flaw in the national foundations and we should begin now. It should not be left until the debate about an Australian republic gathers speed. A modern Australia needs a modern relationship with those of us who were dispossessed and on whose dispossession the nation has been built over and over again.

However, I do not see the present Recognise campaign and proposed referendum to amend the Australian Constitution as dependent upon resolution of the broader relationships. The concept of recognition of the prior existence of Aboriginal people and Torres Strait Islanders in the Australian Constitution and the correction of the record regarding the purported acquisition of the Australian continent for the British Crown are no doubt closely related to each other. But it should be remembered that whatever constitutional reform occurs as a result of the present Recognition campaign, it will only be a step along the path to a more equitable future, not an arrival at the factual, moral and legal endpoint.

In my view the simplest and most elegant solution to a very complicated scenario is to enter into an overarching national treaty framework agreement that is secured by statute, followed by individual or regional treaties.

The most important reasons for such a structure are:

  • If agreements are to be comprehensive and final they must involve both the relevant colonial government or governments and the federation;
  • The government needs certainty that the process is not going to lead to a claim for secession;
  • The First Nations need certainty that the process guarantees certain outcomes.

Aboriginal Australia would need to develop a representative body holding a mandate to negotiate an agreement such as the proposed national framework.

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Logically, the process of creating a national treaty framework agreement could be commenced by an invitation from the First Nations to the federal and state governments to indicate the willingness of the Assembly of First Nations and its members to enter into negotiations based on certain broad parameters. The most critical of these parameters would be:

  • An admission by the Australian colonies and federation that the Australian continent was not ‘settled’;
  • A corresponding agreement by the First Nations that, notwithstanding that the colonies did not acquire legitimate sovereignty by the act of establishing the penal colony of New South Wales, a form of practical sovereignty has been acquired in the years since;
  • Agreement by all that the colonies and federation are burdened to varying degrees by a contested sovereignty;
  • Agreement that the contested sovereignty can only be resolved by agreements entered into by First Nations with the federal and relevant state governments; and
  • An expression of the desire by all to reach a final settlement of all matters arising from the contested sovereignty.

Within those broad parameters the governments of the colonies and the federation could negotiate a framework agreement with a national First Nations representative body. Canada went down the final-settlement path many decades ago. Review of the final agreements entered into in Canada give us insight into the subject matter that needs to be addressed if we are truly to draw a line under the past and work towards a new future. The subject matter includes the entitlement to lands, waters and resources; the entitlement to compensation and reparations; the entitlement to benefit sharing from resource use; self-determination; tax relief; security of social welfare benefits and support services; and the resources to enter into negotiations on an equal footing.

In my view the aim should be to negotiate this framework agreement over the next few years. Once negotiated, individual First Nations or groups of First Nations would then be able to express a willingness to negotiate according to the agreed process. The process would be drafted in such a way as to ensure that any treaty that has already been entered into could be accommodated, such as that which might result from the Victorian government’s recent commitment to attempt to negotiate a treaty with the Aboriginal peoples of south-east Australia.

The ultimate aim for all participants in the process should be to arrive at a position where there is certainty about the past, and a path to social and cultural prosperity for First Nations and citizens of those nations.

For my part, the most difficult part of the process is describing success. I have some idea of what a successful transition from colonial oppression might look like for my people, the Wiri of central Queensland. It will not look like our ancestors’ pre-colonial lives. But I would like to think that my people will be rich in our culture; free from the trauma that haunts us; possessed of some of our lands; joint decision-makers in resource- and environmental-management issues; beneficiaries of royalties from development that we have agreed to; and able to afford, and be in a position to receive, the best education available.

The real dilemma we will have to face as peoples is whether we promote the pursuit of individual wealth and all that that entails. As Noel Pearson has recently stated in relation to the Queensland government’s latest restrictions on native-vegetation clearing, Aboriginal people also have a right to develop. He is correct. Article 1 of the International Covenant on Economic, Social and Cultural Rights provides that all human beings have the right to economic development as an expression of their right to self-determination. How we balance that human right against obligations to protect our country, obligations to kin and obligations to act sustainably, I am not sure. Do we give in to the Western gods of growth and material wealth, concluding that the old ways that are very deeply ingrained in our societies and culture must be abandoned or put to one side? Noel Pearson often cites modern Japan as evidence of a society that moved from a largely agrarian model to a thriving First World economic success while maintaining all of its cultural identity. I appreciate the point that is being made, but I say that the very things that make us culturally different are those that are embedded in our social equality and sustainability.

This is a discussion, along with many others, we need to focus on within the broader Aboriginal community. We must develop methods, processes and models that First Nations can adopt or discard as they please. Such is the fierce independence of each nation and clan that none will accept any form of edict.

*                *                *

Rather conveniently, this brings me back to the discussion regarding the need for a body to advocate nationally for a framework agreement and negotiate the content of that agreement should the governments be brought to the table, which is looking at least possible in light of the Victorian government’s announcement and the Queensland premier’s ready admission of colonial invasion.

Over recent years there has been discussion at the annual National Native Title Conferences about the creation of a national Assembly of First Nations. These discussions have led to the establishment of a working group consisting of a number of people having interest in pursuing such a body. The working group consists of Mick Gooda (Aboriginal and Torres Strait Islander Social Justice Commissioner), Geoff Scott (CEO of the National Congress of Australia’s First Peoples), Mark McMillan (law lecturer at Melbourne University), Valerie Cooms (member of the National Native Title Tribunal and chair of the Quandamooka Yoolooburrabee Aboriginal Corporation (RNTBC)), Robynne Quiggin (formerly CEO of the Australian Indigenous Governance Institute and now at the Australian Human Rights Commission) and Janine Gertz (a Gugu Badhun and Ngadjon-jii woman). I am also a member of that working group.

I have drafted a charter for the assembly and presented the draft at numerous native-title and Indigenous legal conferences. There have been various meetings over the last three years driving the establishment of an Assembly of First Nations along. It is not a new name or idea. There is a Canadian version bearing the same name. However, the structure of the proposed Assembly of First Nations mirrors that of the United Nations in a number of important respects. First, it will respect the sovereignty of the member nations. Secondly, declarations and conventions will gain force by a majority vote at a meeting of the general assembly. And finally, individual First Nations will only be bound by such declarations or conventions if they ratify the instrument domestically. Each First Nation will be entitled to have a delegate attend the meetings and exercise a vote.

There are two other critical features of the Assembly of First Nations. They are that the body must be independently funded, and that it should not be incorporated.

Government funding is antithetical to the objectives of the assembly. In my view we are now in a position to fund our political representatives ourselves. The most readily available sources of funding are a share of royalties and for a small levy to be added to each native-title compensation agreement. The proceeds would be paid to a trust that would fund the meetings and a small administrative arm.

Finally, in answer to a question I am often asked by non-Indigenous Australians—‘What can I, a non-Aboriginal person, do?’—there is one simple thing that can be done at this point in time. Your help is needed to overcome the threshold issue, which is the political recognition that Australia was not settled. The whole construct that other peoples’ territories can be acquired depends for its legitimacy on the notion of a stratified humanity.

The threshold will have been crossed when the prime minister and a sufficient number of the state premiers accept that Australia was not settled. From there we should move to negotiation mode. So, my answer to that question is that non-Aboriginal Australians can reject the notion of settlement as part of our national dialogue. When somebody raises it in conversation, tell them that the British did not settle Australia. When a politician refers to Australia being settled, respond to them, call them out on it, ring their electorate office, and write to their party leader. Whenever it appears in written form or online, write to the authors or publishers.

The use of the term ‘settled’ is a horrendous euphemism that for many smooths out the jagged reality of Australia’s past. I refuse to characterise those events in the language of the eighteenth-century British Empire. That language only serves to legitimise a brutal and inhumane past. I say that the British and Australian governments owe us far more than they can ever repay (à la Bernie Sanders’ election commitment to the Aboriginal people of the United States). Therefore, it makes no difference how they characterise our invasion.

The term ‘settlement’ really is insulting and dehumanising. Once that lie has been put to rest, the remainder of the roadblocks to a proper reckoning should tumble.

About the author

Tony Mcavoy

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Tony you have written a very significant article. Well done. I particularly like and agree with your comment “Aboriginal Australia, in the period immediately prior to the British Invasions, was arguably the most refined form of sustainable human existence this world will ever see”.

Stick to what Paul Richards trained you for Tony, representing Aboriginal people in the criminal courts.
We have enough self appointed spokespeople and social justice warriors.

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