For Aboriginal and Torres Strait Islander people, Treaty is the wrong conversation.
This may seem like a strange thing to say, especially coming from a young Aboriginal person. After all, our leaders and activists have been calling for Treaty for decades. Surely, such a prolonged and well-established movement has a clear direction with a vision and a plan? Unfortunately, the inadequacies of the Treaty movement are becoming self-evident, and we are more confused than ever because of it.
The Treaty movement
Calls for Treaty from Aboriginal and Torres Strait Islander peoples first emerged in the 1970s through the National Aboriginal Consultative Committee (NACC), followed by the National Aboriginal Conference (NAC). The NAC identified a Treaty as the mechanism through which outstanding matters of colonisation and Australia’s First Peoples’ dispossession of lands and waters could be addressed. It was seen as a way to settle historical grievances and move forward together. This idea of coming together after a disagreement was best captured in the Yolngu word Makarrata. In the early 1980s, the NAC created the ‘Treaty-Makarrata Sub-Committee’, initiating what is still seen as the largest and most widespread community consultations specifically regarding Treaty.
As the movement for a Treaty (or Makarrata) gained momentum in Aboriginal and Torres Strait Islander communities, a campaign orchestrated by Nugget Coombs, Stuart Harris and Judith Wright aimed to build support for Treaty in the non-Indigenous Australian community.
But the Treaty movement was not without opposition. On the one hand, some leaders in the Aboriginal community felt that the strategic language of a Makarrata undermined sovereignty. Others felt that land rights, not Treaty, was the area where the greatest gains could be made. In 1980, the National Federation of Land Councils was formed, which openly advocated for land rights instead of, and in opposition to, Treaty.
In 1983, the report ‘Two Hundred Years Later…’, which rejected the idea of Treaty, was released. The Hawke government, coming to power that same year, rejected the idea of Treaty and defunded the NAC.
However, Aboriginal and Torres Strait Islander peoples continued to advocate for Treaty. In 1988, Aboriginal people from the Northern Territory delivered the famed Barunga Statement, which the Hawke government formally accepted but never actioned. In 1991, Yothu Yindi released the anthemic song ‘Treaty’, once more thrusting Treaty into the national political debate. Finally, the Aboriginal and Torres Strait Islander Commission (ATSIC) hosted a Treaty ‘Think Tank’ to explore the meaning, purpose and intent of Treaty.
From Treaty’s first musings in the 1970s, to hit songs, to think tanks, Treaty has had a long, complicated and difficult journey in Australia that continues today.
Where is Treaty at now?
The first Australian state or territory to formally reinvigorate the idea of Treaty was South Australia. In 2016, former premier Jay Weatherill announced that South Australia would enter into negotiations with Aboriginal groups to advance Treaty. But a change of government in 2018 saw a change in priorities, with the incoming Liberal government announcing it would effectively abandon Treaty talks.
The Northern Territory announced its intention to begin conversations about Treaty in 2016. In 2019 Professor Mick Dodson was appointed as the Northern Territory’s treaty commissioner. Recently, Professor Dodson’s role as treaty commissioner has been called into question after alleged incidents of verbally abusing women, with NT chief minister Mick Gunner stating that he had ‘lost confidence’ in Dodson.
At the same time that South Australia was withdrawing from the Treaty negotiation process, Victoria passed Australia’s first Treaty legislation, the Advancing the Treaty with Aboriginal Victorians Act 2018. A key mechanism in the Treaty process was the creation of the First Peoples’ Assembly of Victoria. The Assembly held its inaugural elections in November 2019. As the assembly has continued Treaty conversations, a key question has emerged: should Victoria have one Treaty or multiple Treaties?
Most recently, Queensland has committed to progressing the Treaty process with Aboriginal and Torres Strait Islander groups. The Tracks to Treaty process has formally begun in the state with a Statement of Commitment of how the parties intend to work together to progress Treaty.
There have also been important developments in other states, although the language of Treaty has seldom been used. For instance, some experts have suggested that the South West Native Title Settlement in Western Australia is akin to a Treaty, even saying that the agreement is in fact Australia’s first Treaty.
Nationally, any commitment to progressing a Treaty with Australia’s First Peoples was effectively ruled out when former Prime Minister Malcolm Turnbull rejected the Uluru Statement.
What is clear from these simultaneous processes is that Australian governments have different and conflicting views about Treaty. What is also clear is that while calls for Treaty by Aboriginal and Torres Strait Islander people have been consistent for some fifty years, what is less clear is a common, defined and accepted narrative of what form a Treaty or Treaties will take and what changes Treaty or Treaties might enable.
Treaty: All ship, no cargo
I can’t help but be disappointed that we find ourselves some fifty years into a Treaty movement, and in the middle of various concurrent Treaty processes, and yet we continue to lack a vision for an outcome or outcomes.
It is clear that our people have always viewed Treaty as a vessel through which to create change. Yet it remains an empty vessel without a destination. Put simply, Treaty is all ship, no cargo; all process, no outcome.
What is missing from Treaty conversations is a clear, sound and consistent purpose for Treaty agreements. Indeed, uncovering the purpose of a Treaty is a key function of the First Peoples Assembly of Victoria. The Northern Territory is addressing this missing piece through community consultations.
Yet examining the history of Treaty makes clear that formal government processes have been a tool by which governments have controlled, manipulated and effectively suppressed Treaty discussions. Genuine discussions and debates regarding Treaty will require Aboriginal control of the process, which will only come with financial independence. If properly resourced, we may actually experience a sense of freedom to design the terms of the conversation and what is in, and out, of scope.
Provided with this opportunity, I believe that Treaty is not the conversation, but one component in a much larger conversation. For instance, the First Peoples Assembly of Victoria asks whether a single Treaty or multiple Treaties are needed—but shouldn’t this be defined by the content of the Treaty or Treaties?
Another parallel and equally important question is: what are we willing to give up?
Considering the history of Treaty making in comparable nations such as the United States and Canada, what is given up by Indigenous peoples is simple and consistent: sovereignty.
The question of sovereignty, as highlighted earlier, has been a point of tension in previous Treaty movements here, and we would be wise to listen to Elders who witnessed those contests of ideas.
As a starting point, it is worth considering whether we would be willing to relinquish, once and for all, our sovereignty. In doing so, we would make legitimate the existence of the Australian settler state and its institutions. Of course, the Australian state already exists and dominates—we experience its presence every day—but knowing and asserting that we never willingly gave up our lands or sovereignty has always provided strength in the struggle. Is this what we will give up?
I suggest that this is the cargo.
Knowing where and why we are able to compromise determines what we want and how far we are prepared to go to get it.
Conversely, this question—what are you willing to give up?—must also be asked by non-Indigenous people and institutions. Any meaningful agreement made between Indigenous people and the settler state will require all sides to give something up.
Only by knowing what all sides are willing to give up, or not, will we be able to make the judgement of whether these agreements are the right thing for our peoples.
Knowing what we require from these agreements while identifying what we are willing to give up will allow us to create Treaty agreements (indeed, if we are still willing to do so) that our children deserve. Let’s build the ship to carry the cargo.
Or, if we simply cannot resolve to legitimise colonising forces that have long subjugated our people and made it impossible for us to live full, happy and healthy lives, then we can choose to hand the struggle to future generations with righteousness.
Juukan Gorge Destruction: Extractivism and the Australian Settler-colonial Imagination
Dan Tout, Dec 2020
…the settler-colonial logic of elimination—of displacement for the purpose of replacement—has come to align in ever more destructive ways with the economic logic of neoliberal capitalism…
This is an excellent article that really contextualises the recent discussions about treaty.
It has always seemed to me that the Australian settler state—or states as the case may be—has much to gain from treaty making processes. As Williamson points out in this article, a treaty is an acknowledgement of the existence and legitimacy of settler sovereignties.
However, I’m not as persuaded by the argument that treaty making involves First Nations peoples surrendering their own sovereignty. Treaty making is a process of mutual recognition of sovereignty and it is possible for multiple sovereignties to exist simultaneously (Australian states and federal government are one example of this).
Thanks for the thoughts Melissa, I’m glad you enjoyed it. Yes the piece is designed as a conversation starter to provoke critical, and honest, conversations.
On the point of Sovereignty I find this interesting on so many levels. The point of targeting Sovereignty in the article was to bring the question of sovereignty into Treaty, something many people don’t do. I will say that much of my thinking has been through first-hand experience studying, working and having friendships in different parts of North America, and the experiences of First Nations people there. I must say that my view of Sovereignty and how the concept is understood through Treaty making is somewhat different. Obviously the common narratives of a ‘Treaty’ is an agreement between Sovereigns, and we see this mostly in trade agreements or military partnerships (such as NATO). However, Treaty making with Indigenous peoples is, in my opinion, very different to these. In say the United State which, I believe, have some of the strongest provisions of First Nations Sovereignty, there are clear instances where Sovereignty is a word without substance. For instance, whilst First Nations governments have law making powers in their lands, they largely lack the ability to assert their governance and laws to non-Native people, even those on their lands. Indeed, this is a continued area of law making in the US, with the very recent Supreme Court decision that permits native police to stop and search motorists travelling on federal highways but through reservations, although even these powers are limited (https://thebridge.co.ug/2021/06/01/supreme-court-backs-indigenous-police-authority-on-tribal-lands-courts-news/). But it stands that mostly, First Nations jurisdiction begins and ends with First Nations peoples. I also point out that ALL First Nations in the United States ultimately fall under the jurisdiction of the US Supreme Court. So whilst I understand that people see First Nations as being an expression of Indigenous Sovereignty in a settler-state, it is Sovereignty only insofar as the United State is willing to let it be. There is the added wrinkle also of Congress being the body with the powers to recognise, and unrecognise, First Nations. So perhaps the better question is: How does (or would) Treaty organise co-located Sovereignties?
A thought-provoking piece, and hopefully a conversation starter. A real practical problem with Treaty is: who or what is or are the sovereign, treaty-making polities on the Indigenous side of the equation? The existence of Indigenous sovereignty is surely undeniable, but the diversity of Indigenous Australian polities, both at the time of invasion and as a result of differing experiences of colonisation, means that there is no one kind of polity that is easily identifiable everywhere as the ‘natural’ treaty-making body. In the USA/Canada, the power to define and recognise such treaty-making bodies lies in the hands of the state, with very uneven consequences, and that is not a desirable option. Moreover the focus on Treaty (which as the article points out may require concessions from the Indigenous side that have not hitherto been explicitly made), has the potential to deflect attention from the underlying issues, many of which could be addressed in less processually difficult ways. Like making co-design of policy and programs more of a reality and less of an exercise in virtue-signalling.
Thanks so much for sharing your thoughts Frances. I’d say that Victoria is possibly the most promising place where we may see a response to the question of polities. As it has been the formal policy of the Victorian government to resolve questions of ‘Right People for Country’ which of course goes to Traditional Ownership, I’d say that they may have the best opportunity (yet) to explore Treaty making with what we would now know as Indigenous or First ‘Nations’. But I also have personal worries about where that would leave people who choose not to participate in formal recognition processes like native title (as it has been so damaging) as well as people from stolen generations and forced adoptions. I’d say that this is also part of what I referred to as the ‘cargo’ and this is exactly the kind of dialogue that would require a healthy (and financial) independence from government. And I totally agree that Treaty can (and is) deflecting attention from other conversations. This is why I indicated that Treaty shouldn’t be the only conversation, but one component in a much larger conversation.
Bhiamie, a very thoughtful and insightful article. It nails some home-truths we must consider in the context of treaties. I agree with Melissa’s comment above that the Australian Constitution should really be seen for what it is – a treaty between different polities – albeit a bad one that leaves us stuck in the past. I wish we could tear it up and start again, but that’s another story.
I put parity between two distinctly different approaches to land ownership, use and tenure at the nub of my PhD thesis. The two approaches being Aboriginal and Torres strait Islander peoples’ (however defined by them) and the Crowns. Although I am well aware of the fact that in any locality there will always be more than two overlapping interests that need to be constantly renegotiated.
In the many conversations I have had with Mick Dodson on this topic, he often said that a treaty should not be seen as a ‘once and for all’ type of ‘settlement’. Far from it. Treaties need to be seen in the here and now and they should not foreclose the need for further negotiations a later date as the traumas arising from invasion and colonisation will have ongoing effects well into the future, on future generations. Sage advice.
Mick saw my comments above and asked me to pass on the following comments:
“In practical terms sovereign rights for IP in Australia will necessarily be limited because the way our colonisers think! In the day to day rough n tumble it’s about a settlement of power sharing through treaty, boiled down its includes a political settlement and who makes the decisions affecting blackfellas? I say it means who has jurisdiction (at this stage) over what and who! The ‘what’ has to be negotiated through treaty! Full sovereignty in the international legal sense at this stage is something well into the future – it will be the job for generation Alpha and beyond to pursue cheers Mick”
In my thesis I discussed the impact of Article 46 of UNDRIP at length. Article 46 of UNDRIP does not help the matter of sovereignty much. In fact, it is quite an impediment. Article 46 provides that the UNDRIP cannot be interpreted or construed ‘as authorising or encouraging any action that would dismember of impair the territorial integrity or political unity of sovereign and independent States’. In many respects it will impede the ability of Indigenous peoples to use UNDRIP to challenge the power imbalance they are locked into with nation states and effectively means that external forms of self-determination are off the table for Indigenous peoples.
As Bhiamie notes, every Aboriginal nation needs to be clear about what it wants to negotiate and that negotiations should be on the basis of sovereign-to-sovereign if they are to have any real long term prospects. I have said the same in the ACT context in a recent paper published by The Australia Institute: https://australiainstitute.org.au/report/unfinished-business-in-the-act/