Treaty Talk 2002: Notes on Three Conferences

Arena has become a vehicle for Indigenous intellectuals to assert a ‘right-based’ approach to public policy on Indigenous affairs. Against a Howard government that insists that only ‘practical reconciliation’ matters (and which poo-poos international scrutiny that invokes human rights instruments), it has been important to make space for a principled approach to Indigenous affairs.

There have been two challenges for proponents of the ‘rights’ approach.

One is to connect ‘rights’ to issues of social policy. The Howard government’s great rhetorical advantage is that it can point to a connection between government programs and acknowledged problems (and this remains so even if the programs are of untested effectiveness and/or underfunded). That is, ‘practical reconciliation’ is about ‘doing something’. Is the rights-based approach about ‘doing something’ – or is it just an assertion of noble principle, a discourse lofted over the heads of people in need? In that demanding question we see the rhetorical power of ‘practical reconciliation’.

The second challenge for the ‘rights’ approach is to be clear about what ‘rights’ are being invoked. There is no dispute that Indigenous Australians have ‘human rights’ and that one realisation of these ‘human rights’ is their ‘rights of citizenship’. One can appeal, without much fear of contradiction, to the idea that if Indigenous Australians lack clean water, access to housing, education and medical services of a certain standard, or security in their property, then their rights as citizens are not being honoured. ‘Citizenship rights’ remains a potent spur to Australian governments’ action.

Citizenship Rights and Indigenous Rights

However, some Indigenous intellectuals go further, adding ‘Indigenous rights’. Citizens who are Indigenous are bearers of a right to self-determination that cannot be honoured by putting in their hands merely those instruments of self-determination that were afforded to all Australian citizens through the Australian Constitution. That is because Indigenous Australians were not parties to the federal compact of 1901. Giving Indigenous Australians the vote can not in itself redress their omission from the founding processes of nationhood. To admit them as parties to nation-building it would be necessary to negotiate changes to the Constitution that acknowledge their collective interests in some way. This should have been the main business of the Centenary in 2001. Thus some advocates of a Treaty now argue for constitutional recognition of an Indigenous order of government – the instruments of their self-determination as a distinguishable people within the Australian nation.

Among Indigenous intellectuals who embrace a ‘rights-based’ approach we can see different ways of formulating the relationships between ‘citizenship rights’ and ‘Indigenous rights’. In Arena 45 it seemed that readers were offered a choice between Larissa Behrendt’s and Pat Dodson’s presentations.

Arguing that Australia’s next step should be a legislated bill of rights, Behrendt suggested:

Not only does this have the advantage of being a minimalist approach, it also has the added attraction of being a process that could engage the public in the content of the Bill, giving Australians a greater interest and feeling of association with and ownership of the outcome. This would help to create a culture of rights protection in the Australian psyche and perhaps help to shift some popular misconceptions about Aboriginal rights being special rights (my emphasis).

A few pages later we found Pat Dodson asserting in his 1999 Lingiari Lecture that

Aboriginal peoples have the right to all the common human rights and fundamental freedoms recognised in national and international law, as well as to our distinct rights as Indigenous peoples.

In the same issue, lawyer Sarah Pritchard seemed closer to Dodson than to Behrendt in her assertion that: ‘Policies which do not comprehend the distinct status of Indigenous peoples, and their right to determine their own affairs, are ultimately assimilationist.’

Would Behrendt’s view be taken as ‘assimilationist’ by Pritchard or by Dodson? This seems unlikely. My attempt to reconcile Behrendt’s point with Dodson’s and Pritchard’s goes like this: ‘Aboriginal rights’ are derived from ‘human rights’, so they are not ‘special’. However, Aboriginal rights’ are ‘distinct’ instances of human rights because in the circumstances of the settler colonial nation-state, Indigenous peoples’ human rights have suffered systematic abuse. Indigenous people thus are justified in invoking their human rights in order to demand a systematic redress. Their unfortunate history has given their human rights a distinct content and pertinence. Their collective demand for recognition of their rights proceeds from their historically unique status vis a vis other citizens: they are the colonised, not the colonisers and justice demands that the colonised and colonisers negotiate a relationship of consent. The ‘price’ of Indigenous consent would be for Indigenous Australians to nominate and then negotiate. It is from that historically contingent process that ‘Indigenous rights’ would be given their Australian content.

There is an alternative sense of ‘Indigenous rights’ – that they are defined by what is distinct in the evolved governance customs of Indigenous Australians. My impression is that Indigenous intellectuals have not developed an account of ‘Indigenous rights’ on this basis, though they often allude to its possibility. Either way, it is important that the precise content of the concept ‘Indigenous rights’ be historically open. That openness is the basis of all interventions into the ‘treaty debate’, including this essay; it allows our conception of ‘Indigenous rights’ to be strategically flexible, rather than incised in stone. (I write ‘our’ because Indigenous and non-Indigenous people have to engage in this discussion; a bilateral process cannot privilege one side.)

I want to argue that it is both difficult and unnecessary to include social policy considerations within ‘Indigenous rights’. In my ‘reconciliation’ of the apparent contradiction between the Behrendt and Dodson positions, it is not necessarily relevant that Indigenous Australians, on average, are worse off than non-Indigenous Australians according to nearly all indices of welfare. The argument that ‘social justice’ obliges Australians to strive for ‘equality’ between Indigenous and non-Indigenous people in respect of these indicators could be based on a principle that is more familiar and less contentious than ‘Indigenous rights’. That is, familiar liberal principles of ‘equal opportunity’ compel governments to ensure that no category (ethnic, sex, region) of citizen suffers worse life chances than other categories. Indigenous Australians, as a category, do suffer worse average life chances, so public policy must respond. Another familiar principle of liberal government is that no category of citizen should suffer compromising of its property rights. Legislative, administrative and judicial action in Australia has begun to honour systematically the much-abused property rights of Indigenous Australians since South Australian land legislation in 1966, though the process of redress continues to be compromised by hesitations and reversals on the part of State and Federal governments. Crucial to those compromises have been efforts to circumscribe the Racial Discrimination Act 1975, a legislative expression of the robust liberalism of a common citizenship.

So it is possible to uphold some Indigenous demands (for statistical equality in indices ‘welfare’, for property rights) using no stronger argument than the assertion of Indigenous Australians’ rights as citizens.

However, the other notable Indigenous demand – that their sovereignty, never validly extinguished by the colonial process that resulted in the federal compact, be acknowledged and actualised in institutions of ‘self-determination’ – is a clear departure from what we normally understand to be rights of Australian citizenship. It requires an historical critique of the federal compact – a critique showing how the process of making the federal compact honoured settlers’ sovereignty at the expense of Indigenous sovereignty. As Geoff Clark put it in a seminar paper for AIATSIS on 2 April 2001, ‘At the time of federation, Aboriginal people were excluded from the process of nation-building. We did not give our informed consent. We were not even asked.’

I like to make this distinction (between Indigenous demands that can be and can’t be expressed within the widely accepted terms of Australian liberalism) because I prefer a parsimonious approach to ‘rights’ discourse. That is, I prefer to appeal to specifically Indigenous rights only when our concepts of citizenship rights prove themselves complicit with settler colonial liberalism by their failure to honour Indigenous sovereignty. For me, ‘Indigenous rights’ and ‘citizenship rights’ are significantly different ways to formulate the ‘human rights’ of Indigenous Australians. Indigenous Australians can avail themselves of both ‘rights’ approaches, but I do not think that they should conflate them.

Here I differ from some Indigenous intellectuals who seem to me to use the term ‘rights’ in ways that blur the distinction between their standing as ‘citizens’ and as First People. Thus Pat Dodson’s list of rights in his Lingiari Lecture moved from ‘the right to determine priorities and strategies for economic and social development’ (which I take to be a specification of the right of Indigenous self-determination) to ‘the right to special measures to improve our economic and social conditions’ (surely a citizenship right, based on comparisons of social indicators). He continues with ‘the right to all forms and levels of public education and training’ – another ‘citizenship’ right. Larissa Behrendt repeats Dodson’s practice of not distinguishing ‘rights’ according to their historical and political derivation when, in a recent critique of ‘practical reconciliation’, she seeks to derive all the ‘rights’ that she claims for Indigenous Australians from the concept of Indigenous ‘self-determination’. The phrases I have italicised formulate ‘rights’ that are not dependent on that concept and that can be derived from a principled approach to ‘citizenship’.

The rights enmeshed in the concept of ‘self-determination’ include, I would argue, everything from the right not to be discriminated against, to the rights to enjoy language, culture and heritage, our rights to land, seas, waters and natural resources, the right to be educated and to work, the right to be economically self-sufficient, the right to be involved in decision-making processes that impact upon our lives and the right to govern and manage our own affairs and our own communities. These rights that can be unpacked from the concept of ‘self-determination’ point to a vision that has been described as ‘internal self-determination’. It is a vision of increased Indigenous autonomy within the structures of the Australian state. (Arena 58,26)

Why do I think that it is not useful to make ‘self-determination’ the master concept from which a medley of ‘rights’ can be derived? Is my wish to make distinctions between citizenship rights and Indigenous rights anything more than academic pedantry? These doubts were in my mind when I embarked on a short winter journey through three conferences in which the idea of an Australian treaty was on the agenda:

‘Unfinished Business Conference’ 3-5 June, Melbourne (available as “Unfinished Business” Text and addresses from the Unfinished Business Conference including the inaugural Eddie Mabo Memorial Lecture, Editors – John Rickard and Vince Ross, Publisher – DesBooks)

‘Treaty – advancing reconcilitation’ 26-28 June, Perth

‘National Treaty Conference’ 27-29 August, Canberra.

 

Indigenous sceptics.

ATSIC does not assume that Indigenous Australians are in favour of a treaty process. ATSIC was co-sponsor of each conference, pursuing its strategy of ‘informing the Aboriginal and Torres Strait Islander community about the treaty concept’, in Geoff Clark’s words at AIATSIS in April 2001, and perhaps ‘seeking their support for progressing the matter through a plebiscite or some similar mechanism’. He reported the ATSIC Board’s resolve to establish ‘broad Aboriginal support and endorsement for the treaty before formal negotiations can occur.’

Here and there at these conferences, reservations were sounded by Indigenous speakers. In Perth Michael Mansell, himself a firm treaty advocate, acknowledged that Indigenous Australians might choose what he called ‘assimilation’ – that is, they might be content to claim only the same citizen entitlements that other Australians enjoy. The Indigenous leaders who advocate a treaty process and who believe that Indigenous Australians have distinct ‘inherent’ rights do not assume that they yet have a popular mandate to act on their own positive assessment of a treaty.

Each of the conferences listened respectfully to Indigenous treaty-sceptics. In Melbourne, Audrey Kinnear Ngingali, co-chair of the National Sorry Day Committee, argued that the treaty process was a distraction, using up resources required in other endeavours. Terry Waia, elected Chairperson of the Torres Strait Regional Authority (TSRA) since April 2001, told the Canberra conference that the priority issues for his people were their excessive mortality rates, the survival of their language and their welfare dependency. He implied a distinction between the TSRA’s aspiration to define a ‘realistic’ degree of Islander sovereignty, and the Indigenous concern with ‘sovereignty’ in other parts of Australia. Perhaps the sovereignty issue was, for some, a ‘luxury’ that they enjoyed because they did not have issues of health, culture and economic development to worry about, he ventured.

In Perth, we listened to Eddie Mabo junior after he was introduced with some reverence by the Reverend Cedric Jacobs. (Veneration of Mabo family members was also a feature of the Melbourne conference, though on that occasion they were silent icons, not speakers.) Eddie Mabo described as ‘problematic’ ATSIC’s promotion of a treaty ‘How can we explore a treaty when our communities are themselves not able to govern themselves efficiently, economically, and politically?’ Citing Noel Pearson on ‘passive welfare’, he warned against a ‘passive treaty’. It was up to Indigenous Australians to develop their many ‘jurisdictions’ and to win acknowledgment for them. His rhetoric was hostile to ‘elitists…advocating on our behalf in national forums’. He identified with the ‘grassroots people’, contrasting them with those ‘working inside the bowels of government’. His priority was to develop ‘appropriate Indigenous governance structures at the grass roots’…’our own system of democracy and representation as colonised people…Only through this will we develop Indigenous jurisdictions that are worthy of negotiating a treaty.’

One way to hear Eddie Mabo’s point is to note its resonance with doubts about ‘Indigenous capacity’. He cited Noel Pearson in blaming ‘passive welfare’ for undermining ‘self-sufficiency and cultural traditions.’ Without mentioning Pearson, Senator Aden Ridgway suggested at the Melbourne conference that since 1967 there has been a ‘complete breakdown of culture and values in communities’. Malcolm Fraser, speaking at the Canberra conference, asserted that some Aboriginal and Torres Strait Islander communities are ‘getting close to the point of non-recovery.’ Dean Collard, Noongar Director of the Manguir Corporation, told us in Perth that when the Whitlam government introduced self-determination, it had overlooked ‘capacity development’. I heard no-one dispute these gloomy assertions. From that we cannot infer consensus, but it is clear that many Indigenous and non-Indigenous participants and onlookers have concluded that ‘self-determination’ makes demands that some Indigenous Australians are not yet able to meet. Larissa Behrendt felt obliged to address this perception in her recent (Arena 58) article: ‘Not all Indigenous communities are incapacitated or dysfunctional.’ Bill Jonas, speaking at the Canberra conference, argued that a treaty process would build much-needed governmental capacity among Indigenous Australians. For such capacities to grow, it would be important for all concerned to work with a dynamic concept of Indigenous tradition, he added.

Social policy in the treaty

The view that parts of Indigenous Australia are without basic capacities for self-determination, that they are more socially-stressed than ever in their colonial history, is just what gives point and urgency to the Treaty, as far as some of its advocates are concerned. In the selection of speakers for the Canberra conference there was evidently a desire to exhibit a coalition of progressive forces in favour of a Treaty. Under the heading ‘Social impacts of a treaty’ we heard from Kerryn Phelps (Australian Medical Association Federal President). The treaty is AMA policy; the AMA believes that the physical and mental condition of Indigenous Australians is a ‘blot on our human rights record’. Access to adequate health services is a human right, effectively denied Indigenous Australians through underfunding – and not just in remote areas, she was at pains to point out. Economists such as John Deeble and Gavin Mooney have even quantified the dollar gap that governments must make up. The AMA’s interest in the Treaty, in short, is that its terms would include guarantees of adequate funding of health services for Indigenous Australians.

Phelps conveyed the urgency of the Treaty process. Yet some of its advocates are prepared to take a long time. To persuade Australians that ‘Indigenous sovereignty’ can be given a practical form that is not threatening to Australian sovereignty will not happen overnight, they argue. For them a treaty that would be adequate to its basic concept – Indigenous sovereignty – is not to be rushed. Phelps’ paper thus raised a problem of political strategy: short term or long term? Behind this dilemma lies the conceptual problem that I raised earlier: can the treaty be the expression both of Indigenous Australians’ entitlements as citizens (to essential services such as water, housing, schools and health care), and of Indigenous Australians’ unique entitlements as First Peoples, their sovereignty never validly extinguished?

In the last three years, it has been tempting for ATSIC and its allies in the field of social policy to speak as if the treaty could and should be given a ‘social policy’ content and rationale. There is a precedent for this mistake in the advocacy of ‘land rights’ in the 1960s and 1970s. It was the hope and the claim of some proponents of land rights that granting Indigenous land title was the key to advances in economic prosperity and in health. We now know that this argument claims far too much for land and sea rights. Their social utility is various, depending on circumstances, and in many parts of Australia entitlement to land has not proved to be the answer to poverty. Now we are tempted by the rhetoric that the Treaty is the key – the essential basis for Indigenous advancement in health, education and prosperity, the closure of all the ‘unfinished business’. We are seduced by a kind of ‘holistic’ thinking in which the resolution of an issue of principle is the ‘key’ to the solution of many practical problems of living. We should be sceptical of such holism.

The Canberra conference nurtured my scepticism. In the assembly of Michael Horsburgh (National Council of Churches), Megan Mitchell (ACOSS), Deryck Schreuder (Australian Vice Chancellor’s Committee), Lester Irabinna Rigney (Flinders University) and Lynne Rolley (Independent Education Union of Australia) under the theme ‘social impacts of a treaty’ I could find no intellectual framework that linked their myriad policy concerns to the terms, timetable or rationale of a Treaty. Here I saw the point of the treaty sceptics. They see a series of relatively discrete policy problems and failures of public provision, each of which requires its own intellectual and political effort. The ‘sceptics’, as I understand them, are not dismissing the assertion of Indigenous sovereignty; they simply do not see (as I do not see) how recognition of Indigenous sovereignty through a Treaty process should be seen as a necessary (or even helpful) step in the development of better (and better funded) policies on education, health, housing, and so on.

Practicalities and principles are much more coherently combined when Treaty advocates set their sights on constitutional reform. George Williams (a Professor of Law at the University of New South Wales) reminded us in Canberra that the Constitution is defective in that it gives the Commonwealth powers in relation to Aborigines that the Howard government has recently chosen to exercise against their interests – in legislation on heritage protection (the Hindmarsh Island issue) and in hostile amendments to the Native Title Act in 1998. The immediate utility of a Treaty could be, at minimum, defensive. It could inscribe within the Constitution certain ‘rights’ – whether they be specifically Indigenous or citizenship rights – and thus give a basis for litigation against obnoxious governmental actions. Larissa Behrendt made this point in Arena Magazine 45: ‘What the experience in the Kruger case and the overriding of the Racial Discrimination Act 1975 provisions in the Native Title Amendment Act 1999 show is that legislative whims to infringe Indigenous rights need to be tempered. The best way to do this is with a specific constitutional protection like the one provided in the Canadian Constitution Act 1985.’

Native Title – a Treaty stimulus?

Among the many impulses to revive the idea of a Treaty is disillusion with ‘native title’. On the one hand, the Mabo judgment seemed to promise a new spirit of recognition. Indeed, on one plausible reading of the judgment, it implied unextinguished Indigenous sovereignty and thus a jurisprudential basis for Treaty talks. On the other hand, the legislative ‘native title’ regime has produced mixed results. The denial of the Yorta Yorta claim by Justice Olney weighed heavy on our minds at the Melbourne conference, particularly when we listened to Monica Morgan (Yorta Yorta Nation Aboriginal Corporation) and to Wayne Atkinson (political scientist, University Of Melbourne and a Yorta Yorta man). Many people are also disappointed at the slow nature of legal proceedings and negotiations, and at the privileging of ‘suits’ over ‘ordinary people’ in native title processes. It was easy to get a laugh at these conferences by lampooning a lawyer, a bureaucrat or a politician. Churches were the main co-sponsors of the Melbourne conference, and people whose involvement in Indigenous affairs is mediated largely through their membership of a congregation were numerous. Among such people of good will and high principle tolerance of political and legal process is low. At times, when the anti-political rhetoric was in full flood beneath the chandeliers and plush curtains of Melbourne’s Carlton Crest, I closed my eyes and imagined I was at a One Nation meeting.

Fred Chaney (Deputy President of the National Native title Tribunal and Co-Chair of Reconciliation Australia) and Graham Neate (President of the Native Title Tribunal) confronted this populist ennui. Both argued that the Native Title Act has stimulated a ‘culture of negotiation’. In many regions of Australia, the assertion of native title is being taken seriously by other parties; in very many cases they are negotiating land-sharing arrangements with putative native title holders. Neate explained why such negotiations take time. They are multipartisan (Telstra was always involved, he noted); the parties were previously strangers to one another with little or no common knowledge or background. Yes, native title mediation was slow, Neate conceded, but from that carefully deliberated process would flow outcomes that were secure. He warned that ‘speed’ was not necessarily a virtue. Chaney has been tireless in promoting the emergence in Australia of a ‘culture of negotiation’; so seriously are native title assertions taken, he has sometimes argued, that the myriad negotiations amount to an untheorised concession of many local sovereignties, a de facto and regionalised Treaty process. With 30 determinations of native title and nearly 600 native title applications still to be dealt with, we are at the beginning of a transformative process. Australians are pragmatists, Chaney explained in Perth, innovative in practice but slow to theorise what they are achieving. His phrase ‘culture of negotiation’ is his attempt to give a name to a new social reality. Chaney and Neate are both talking up native title and attempting to lower people’s expectations of it.

In one of the more important research projects current in Indigenous Studies, Marcia Langton and her colleagues at Melbourne University are attempting to document the culture of negotiation, to identify its achievements and processes. She calls it an ‘audit of agreement-making’, and her concerns range far beyond native title. As she explained in Arena 50 (p.34),

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 proponents, local governments, state governments, farming and grazing representative bodies, universities, and many other institutions and agencies.

Not all share the optimism of Chaney and Neate that ‘native title’ can contribute to the culture of negotiation. One Western Australian ‘consent determination’ – Nganawongka Wadjari and Ngarla – is becoming infamous for having resulted in fewer rights than the native title holders enjoyed before they began to negotiate. (Yet as lawyer David Ritter pointed out in Perth, this outcome is being touted in some non-Indigenous circles as exemplary of the maturity of Indigenous negotiators.) At the Perth conference Aboriginal and Torres Strait Islander Social Justice Commissioner Bill Jonas argued that negotiations under the Native Title Act should not be hailed as a de facto Treaty process because the native title regime is not a respectful relationship between equals. The Commonwealth and State laws and negotiating stances were framed in a spirit of restricting Indigenous rights, he argued, and the Commonwealth had never funded adequately the Native Title Representative Bodies.

An organic process?

Whether we judge native title to be a disappointment or to be good work slowly performed, it is possible to consider the Treaty process as having already begun in the molecular processes of ‘self-determination’. That is, every time an organised Indigenous interest makes an agreement (about land use or about service delivery) with a non-Indigenous interest (whether government or private), something small but important is added to a growing edifice of Indigenous self-determination. Self-determination is arguably analogous to the growth of a coral reef. This is so even if the Howard government in 1998 disavowed ‘self-determination’ as a policy rubric, because the governmental practices of devolution (of service delivery) and recognition (of land ownership) have become a normal and growing feature of Australian life since the 1970s. The process can be slowed and its vicissitudes can be discouraging in the short term, but there is an impressive continuity in public sector practice since the 1970s. An Indigenous institutional order (I call it the Indigenous Sector) and an Indigenous land base are growing year by year.

Converging with this process of incremental recognition and devolution is the emerging flexibility in Treaty proponents’ use of the term ‘sovereignty’. That is, ‘sovereignty’ is being imagined in such a way that Australian practices are incrementally realising it. At the Melbourne conference, University of Melbourne law teacher Maureen Tehan asked that we not prejudge the meaning of that word. ‘Sovereignty’ refers to negotiated domains of legitimate power. We face the task of defining Indigenous sovereignty, she argued, and of building upon what is already taking place – agreement making in many contexts. Constitutional entrenchment would eventually be essential to secure certain standards and principles of agreements. Mick Dodson has also been pointing to a decentred process of agreement-making. A single national treaty is not possible, he argued at the Canberra conference. Rather we should aim for regional agreements varying within a national template whose features might include: non-discrimination, access to education and employment, heritage issues and the many recommendations – from years of official inquiries – that have not yet been implemented. He appealed to us to rediscover the policy wisdoms in these many reports, particularly those that could be subject to local agreement and implementation.

The import of this way of seeing ‘sovereignty’ is to bring closer together the two principles that I was at pains to distinguish in my introduction: citizenship rights and Indigenous rights. That is, if Indigenous Australians advance their access to basic services through service agreements (and even shared public revenue agreements) between their organisations and all three levels of government, then the resulting edifice (the coral reef, or ‘Indigenous Sector’) begins to approximate to a decentred Indigenous polity. The point of asserting Indigenous rights could then be as much retrospective as prospective. That is, the content of ‘Indigenous rights’ would be the securing of these evolved ways of actualising Indigenous Australians’ citizenship rights. I acknowledge that this notion of Indigenous rights is radically different, in principle, from the idea that ‘Indigenous rights’ give expression to evolved Indigenous custom. In that view, the original sources of ‘Indigenous rights’ (and this would be the point of naming them as distinct rights) are to be found in the pre-colonial Indigenous way of life. However, the difference in principle between these two ways of thinking about Indigenous rights need not obscure their practical convergence in the recognition of evolved Indigenous ways of doing political business.

Sovereignty – a hot potato

For Malcolm Fraser, speaking at the Canberra conference, the notions of ‘sovereignty’ and ‘treaty’ had to be softened. Attuned to conservative opinion, Fraser warned of the extreme sensitivity of the Australian electorate to any suggestion that Indigenous Australians considered themselves a people apart from the Australian people. ‘Agreement’ was a better word that ‘Treaty’, he suggested, because ‘Treaty’ had a ‘two nations’ connotation that Australians generally would not accept. This is exactly what he and Fred Chaney argued in the early 1980s, when persuading the National Aboriginal Conference (NAC) to drop ‘treaty’ and say ‘makarrata’. The opinion of such conservatives meets much respect among advocates of the Treaty. At the Canberra conference, Jackie Huggins (Chaney’s co-chair at Reconciliation Australia) paid Fraser the compliment of wishing that he was still Australia’s Prime Minister! (Et tu Jackie? I can hear Gough plead.) The question that such conservative counsel raises is whether Australia’s emerging ‘culture of negotiation’ – a political system abounding in local and regional agreements such as Langton is documenting – could ever tolerate a nation-wide ‘framework agreement’ that might be called a Treaty and that would recognise Indigenous sovereignty. Would that be the gradual end-product of the piecemeal progress I sketched above – or is there a qualitative gulf separating all those little agreements and the one big one at the end called the Treaty?

It has been good to listen to Bill Jonas and Michael Mansell with that question in mind. In Perth, Mansell argued that Indigenous Australians should assert what they think are their rights, and put the onus on others to say why that isn’t so. Indigenous Australians should assume their unextinguished sovereignty and then question the logic of those who deny it. Sovereignty must be on the table, for a political settlement that articulates a broad vision for Indigenous futures. I suggested at the Perth conference that ‘putting sovereignty on the table’ should include considering negotiating the valid extinguishment of Indigenous sovereignty (presumably in exchange for significant concessions, a point that I pick up from H.C.Coombs and the Aboriginal Treaty Committee of 1979-83). Mansell responded that no Indigenous leader would entertain sovereignty’s extinguishment. Yet, at the same conference he considered the possibility of Indigenous sovereignty being ‘suspended’; and in Canberra eight weeks later he said that a Treaty did not have to make any definitive comment on the issue of Indigenous sovereignty.

Bill Jonas argued in Canberra that Indigenous people, not governments, must define the practical meanings of their ‘sovereignty’. In presenting his suggested meaning, Jonas emphasised the complementarity of Australian with Indigenous sovereignty. Australia’s recognition of Indigenous sovereignty would not be an act of weakness but of strength, because Australia would henceforth be judged as honouring more conscientiously the doctrine of popular sovereignty.

In short, both Mansell and Jonas exemplify the Indigenous willingness to evoke ‘Treaty’ and ‘sovereignty’ in terms that connect the two concepts with the more progressive doctrines and tendencies of government extant in Australia.

The three practices of recognition

As a speaker at two of the three conferences covered by this essay, I became preoccupied with the historical and practical question of: how would we get there from here? The hardest part of that question is to describe ‘here’. I’ll conclude my impression of the Winter 2002 Treaty debate with some observations about the Australian approach to Indigenous self-determination. I draw on some ideas expressed in my recent book Indigenous futures: choice and development for Aboriginal and Islander Australia.

Insofar as Australian governments have pursued a policy of Indigenous self-determination, that policy has had three elements:

First, We have a series of legislations creating land title, each with its own version of Indigenous property rights.

Second, We have a tradition of encouraging the formation of publicly-funded Indigenous organisations. Some of these organisations are necessitated by the new land title regimes. Many others have been set up in order to place Indigenous Australians in charge of the delivery of essential services, and a few – notably ATSIC – have been created to give Indigenous Australians political representation within the government itself.

And third we have a regime for the definition and recognition of the Indigenous population. This demographic regime was created in the early 1970s, when the Australian Bureau of Census and Statistics decided to let individuals and household heads decide for themselves whether or not they were ‘Aboriginal’ or ‘Torres Strait Islander’. It is easy to overlook the significance of this third ‘recognition’, since it is easy (but false) to think of the ‘Indigenous population’ as a kind of ‘natural’ phenomenon whose existence is independent of any process of recognition. In fact, the phenomenon ‘the Indigenous population’ does not exist unless governments go to the trouble to enumerate it.

It is an important feature of the Australian path towards Indigenous self-determination that these three recognitions – land title, Indigenous Sector, and population – are not governed by the one policy philosophy. The three recognitions have grown largely independent of one another. They interact and they intersect, to be sure, but they do so in different ways in different parts of Australia, and the relationship between them is not the effect of anyone’s larger integrative design.

Here are some examples of the ‘loose fit’ between these three dimensions of Indigenous self-determination. On many portions of Indigenous land, the traditional owners find themselves having to forge relationships with Indigenous organisations in which they may or may not be involved, such as CDEPs, community councils, funded medical services. This is not necessarily a problem, but it is a significant feature of Indigenous political life that the presence of many Indigenous Sector institutions on Indigenous land need not have much to do with the customary authority of the traditional owners themselves. Many government agencies have an interest in servicing the local population through subsidised organisations, and the staff and the clientele of these organisations form a political constituency that possibly overlaps with the land-owning families but is not identical to those owning families. Much of the expertise that is embodied in the Indigenous Sector is devoted to managing these local relationships between co-existing clusters of resources and authority.

My second example concerns the relative autonomy of the Indigenous Sector and the Indigenous population. When ATSIC was designed, two important decisions were made that have not generated much debate. The architects declined to declare a separate Indigenous roll and they declined to make voting in ATSIC elections compulsory. One result of these decisions is that the ATSIC voter turn out is very low when compared with the compulsory votes in State and Federal elections. That is, the number of people voting is only a fraction of the number of people of voting age who answer the Census question that they are Indigenous. One way to interpret this low proportion of voters is to say that ATSIC does not command the interest or respect of most Indigenous adults. I offer another interpretation. The actions of government offer a number of different ways of being ‘Indigenous’. One of the easiest is to tick the box in the Census that declares you to be an Aboriginal or Torres Strait Islander person. It is possible to make that identity choice in the Census every five years and to have no other involvement with the Indigenous Sector nor with Indigenous land. I am not suggesting that this act of identity choice is superficial or insincere; it may well be deeply felt. However, there is no doubt that the Australian system for enumerating the Indigenous population is very permissive. To be counted as part of the Indigenous population in the Census, you don’t have to do anything but tick that box. So there is no necessary correspondence or connection between being a member of the Indigenous population and being involved in some way with the Indigenous Sector.

The Indigenous land base, the Indigenous Sector and the Indigenous population sit alongside each other as three distinct and relatively autonomous forms of recognition of Australia’s Indigenous people. That has been characteristic of the Australian way of moving towards Indigenous self-determination. That Indigenous ‘self’ is realised in acts of choice at both the individual and collective levels. In the recognition of the Indigenous population, individual choice plays an essential part. In the recognition of the Indigenous Sector and in the legal securing of communal Indigenous land tenure, Indigenous people acquire or enhance their capacities for collective decision-making.

One of the implications of a Treaty process would probably be to tighten up the relationship between the three dimensions of Indigenous recognition. For example, the security of Indigenous land tenure and the property rights associated with land tenure could both be brought up to standards acceptable to Indigenous Australians. This would have implications for the Indigenous Sector. Indigenous Sector institutions with land ownership and land management functions might become more important relative to Indigenous organisations whose concern is the delivery of services that are citizenship entitlements.

What would a Treaty do to Australia’s permissive demographic regime? That is, if a treaty process gives rise to substantial, well-defined and specifically Indigenous rights, will it be necessary to have a clearer and more rigorous way to specify who is an Indigenous person?

In Tasmania in 2002 we have seen a trial of this more rigorous definition of the entitled population. The specific Indigenous entitlement that is in question is the entitlement to stand as an ATSIC Regional Councillor. Hearing complaints that some candidates in the past have not been verifiably of Indigenous descent, ATSIC established a mechanism for the challenging and the proving of one’s Indigenous status. The process was in turn subject to the Administrative Appeals Tribunal, and a number of individuals found reason to be appellants. The existence of a specifically Indigenous entitlement since the 1989 ATSIC Act made it necessary to go beyond the permissive approach to identity that has characterised the Australian recognition of the Indigenous population since the 1970s. From press coverage of the Tasmanian scene it is clear that there have been two competing descriptions of this process of authentication. From one point of view, it is dividing the Indigenous community. From another point of view it is strengthening the Indigenous community by establishing its true boundaries. In a recent Four Corners program on the Tasmanian situation, a number of speakers suggested that this process of dividing/refining could and should be conducted in other regions of Australia.

The Tasmanian debate illustrates the tension between two developments within Indigenous self-determination. On the one hand, there is the move – associated with the Treaty process – to specify a distinct set of Indigenous rights. On the other hand, there is a permissive approach to the issue of who is an Indigenous person. Is there a way to avoid this tension, or is it an unavoidable feature of the process of recognising distinct Indigenous rights? Does our approach to defining the Indigenous population have to become less permissive?

I don’t think that it does. There is a way to minimise the tension, though not to avoid it altogether. Here I return to my earlier point that the ‘Indigenous self’ in ‘Indigenous self-determination’ can take more than one form. That ‘self’ can be an individual or it can be an organised collective, such as a Community Council. We face a choice of emphasis. If Indigenous ‘selves’ are to be recognised as having distinct entitlements by virtue of being Indigenous, then there is less need for a test of who is Indigenous if we put the emphasis on the entitlements of organisations rather than on the entitlements of individuals. I know that it would be possible to have an authenticity dispute about an organisation, just as you can have them about individuals. But I think that the tests of whether an organisation is ‘Indigenous’ can continue to be relaxed and permissive, for two reasons:

first, an Indigenous organisation is already, inevitably, a hybrid body. It is made up of Indigenous and non-Indigenous personnel. It mingles formal procedures with informal procedures (including informal procedures that we might label ‘Indigenous’).

second, any Indigenous organisation is open to another test – the test of its effective relevance to the constituency that it claims to serve. Indigenous individuals are not compelled to use the services of Indigenous organisations. In many urban and rural regions, the Indigenous households and individuals have a choice between mainstream and Indigenous services. Indigenous choice will therefore declare the relevance or otherwise of the work of an Indigenous organisation. Indigenous organisations prove themselves to be Indigenous by their success in attracting an Indigenous client base. This is true even of statutory Indigenous organisations. For example, Northern Territory Land Councils are under pressure to satisfy their client base because that client base has the option of petitioning the Minister to allow them to form ‘break away’ Land Councils.

I want to suggest that a treaty process should take seriously the distinction between the Indigenous Sector and Indigenous population. The Indigenous Sector is more rigorously defined than the Indigenous population. The Indigenous population is defined by thousands of acts of identity choice. The Indigenous Sector is defined by its receipt of money from governments and by the continuing decisions by families and individuals to be clients of the organisations of the Indigenous Sector. This distinction helps me to think more precisely about what the Treaty process (and the culture of negotiation) is. We have a loose way of talking about the Treaty as if it were a new relationship between the sovereign Indigenous people of Australia and the Australian people. While those words are good enough at a rhetorical and symbolic level, they beg the important question of who would be the actual parties of a Treaty or of many small treaties/agreements. On one side the answer is clear – the Australian government, or particular agencies of government. On the other side the answer would have to be not the ‘Indigenous people’ but Indigenous organisations.

It is not yet clear whether there is an Indigenous organisation that could conduct mandated negotiations at a national level. ATSIC is intelligently unsure of its mandate. However, there are many local and regional and functionally-specific Indigenous organisations that could do so. If we think of the parties to the Treaty process as organisations, not as ‘peoples’ then we have already the means to make many local agreements about particular issues of government in which Indigenous Australians have an interest.

 

I thank Bruce Buchan and Tony Connolly for comments on a draft of this essay.

Tim Rowse works in the History Program at ANU’s Research School of Social Science. He is the author of Indigenous Futures: Choice and Development for Aboriginal and Islander Australia and Nugget Coombs: A Reforming Life, both published in 2002.

Support Arena

Independent publications and critical thought are more important than ever. Arena has never relied on or received government funding. It has sustained its activities largely through the voluntary work and funding provided by editors and supporters. If Arena is to continue and to expand its readership, we need your support to do it.