July 2016


Seeking a settlement

By Megan Davis
How does the reinvigorated treaty movement fit with recognition?

“Is that something you might move towards in government – a treaty?” asked Q&A’s Tony Jones.

By mid June, the crisis in indigenous affairs had barely rated a mention in the marathon 54-day election campaign. Issues such as child removal, land rights, health and unemployment were all but ignored, as was the whole-of-sector clarion call, the Redfern Statement. Now, on live national television – on a program that only infrequently engages with indigenous policy matters, and faced with a question more or less ignored in federal politics for two decades – Opposition Leader Bill Shorten was apparently snookered. He answered Jones by accusing him of trying to manufacture a “gotcha’’ moment. Damned if you do, damned if you don’t.

The question came about because Shorten had just told Jones that he believed a post-constitutional recognition settlement with indigenous people could take the form of a treaty. Cut to Prime Minister Malcolm Turnbull’s curt rebuke the next day, that Shorten was putting bipartisanship on constitutional recognition at risk, and suddenly treaty and invasion were the issues du jour.

The politicisation of the constitutional recognition process is unfortunate but inevitable. Recognition is political. Australia has spent the past decade valiantly avoiding the messiness that comes with true reconciliation movements. Now there is a dawning realisation among the political elites that “recognition” – a word deliberately chosen to avoid the messiness of substantive reform – is, in fact, a vexed concept, and there is no clean way out of it.

Although some in the media and in politics have presumptuously declared recognition of Aboriginal and Torres Strait Islanders a “symbolic” gesture – an acknowledgement of fact or a statement in the preamble to the Constitution or the deletion of a dead letter provision misleadingly claimed to ban Aboriginal people from voting – it remains an inchoate Australian project. Recognition was initially shaped by the 2011 Expert Panel, and tentatively modified by a parliamentary joint select committee. But the constitutional conservatives reject the one substantive proposal that even the taxpayer-funded campaign Recognise promotes as recognition: a constitutional commitment to racial non-discrimination. Thus the canvas is yet to be filled in, at least to the satisfaction of the to-be-recognised. Last July, during their meeting at Kirribilli House with Shorten and the then prime minister, Tony Abbott, indigenous representatives deemed the aforementioned symbolic amendments, and the moderation or deletion of the Constitution’s “races power”, too minimal and therefore not meaningful recognition. This is why a Referendum Council was established at the end of last year.

The reinvigorated treaty movement underscores the contested nature of recognition and the rejection of minimalist recognition. In the most obvious example, the state of Victoria has become the first Crown entity since 1788 willing to enter into a treaty process with Aboriginal people. According to Emeritus Professor Cheryl Saunders, a world-renowned expert in constitutional reform and design, “the idea of a state-based treaty bubbling up from the grassroots” is a good one, in part because it “probably puts a bit of a break on the idea that national constitutional recognition can be purely symbolic”.

The week prior to the prime minister’s rejection of treaty talk, his own minister for indigenous affairs and others, including the government’s Recognise campaign, responded to the growing calls for a treaty by saying that constitutional recognition and treaty are not “either/or” and not a “binary” choice, that indigenous peoples can indeed “have both”. Now, following the prime minister’s comments, woolly exhortations that a treaty is the next step after recognition or, conversely, that recognition is the requisite precursor to a treaty must be confusing to the Australian public, not the least to Aboriginal and Torres Strait Islander peoples. Of course the two are not “binary”. Treaty is recognition. Whereas recognition, undefined, is a ghost of a concept.

To make pronouncements about recognition and treaty when there has been no robust public debate accompanied by detailed proposals is problematic. Remember when Turnbull suggested a “once in several generations” reform to enable the state and territory governments to set their own rate of income tax? A policy suggestion motivated by a “failure at the heart of the Federation” but retracted within days? Law reform without detail. Similar dynamics are at play here. It is grossly unfair to make mischief with Aboriginal debate around treaty and recognition – oh those blacks won’t be able to get their act together – when the nation itself does not tolerate vagueness in proposals for constitutional reform.

For many blackfellas, to blindly accept that recognition comes first and a treaty will unquestionably follow, without explicit and formal state commitment or even a vague informal nod to a settlement, is to ignore the Commonwealth’s track record. The reconciliation movement (today a shadow of its former self) was created in 1991 as a political contrivance, to soften the blow when Prime Minister Bob Hawke reneged on his promise, made upon receiving the Barunga Statement in 1988, to deliver a treaty by 1990. But promises can disappear, just like writing in the sand.

The realpolitik is this: a referendum would exhaust the already limited political currency of indigenous Australia. Constitutional reform will not seamlessly transition into state willingness for a treaty. It didn’t when the Council for Aboriginal Reconciliation recommended a treaty after ten years of reconciliation slog, even though a 2000 poll found 53% of Australians in favour of one. It didn’t after the High Court’s decision in Mabo. Mind you, in Australia, progress on indigenous rights has never originated in the parliament. Indigenous rights, land rights, native title rights have come from indigenous activism – tents on the lawn – and the courts. Parliament is always playing catch-up. The unwavering aspiration of indigenous people for decades has been a settlement between Aboriginal polities and the state.

So where to now? First, let’s avoid the routine histrionics over the word “treaty”. Simply because an Aboriginal person advocates a treaty does not mean they are advocating transplantation of New Zealand’s Treaty of Waitangi or a first contact agreement, as was the arriviste custom of Empire. This is not a post-Mabo “Aborigines will take your backyard” situation. A treaty is not intended to create two nations or violate formal notions of equality. Globally it is common practice for states with indigenous populations to enter into such agreements on a variety of matters, from land use to management of national parks to service delivery. These modern-day instruments are internationally referred to as “treaties, agreements and other constructive arrangements”. Most liberal democracies with indigenous populations do it because it increases the democratic participation of indigenous peoples and improves democratic governance. Such an agreement or constructive arrangement can be as simple as mapping a path forwards based on agreed principles of engagement and mutual respect. Such an agreement could agree to disagree on some things and settle on others.

Anyone who knows the indigenous legal domain in Australia accepts that this continent is littered with agreements and constructive arrangements. This began with the Aboriginal Land Rights Act (Northern Territory) in 1976 and continued through to 1993’s Native Title Act, from which we have a proliferation of indigenous land use agreements along with settlements such as the Noongar agreement in Western Australia. It is true, however, that we do not have a national agreement or a settlement signed by the first nations of the country with the Australian state. In the ’80s, the movement towards achieving this eschewed the incendiary term “treaty” in favour of makarrata. The Yolngu word means “resumption of peaceful relations after hostilities” or “the coming together after a struggle and living again in peace”. An agreement to disagree. A practical decision to work together. Such an agreement does not need to be in the written Constitution nor does it need to be enshrined in legislation. For now, though, to adopt prime ministerial parlance, there is no agility in the process. There is a curious devotion to the written Constitution as the epitome of recognition, even though statute is the workhorse of Aboriginal affairs and meaningful recognition already exists through the common law, statutory land rights and native title.

One thing complicating this debate is the question of sovereignty. “Sovereignty” is a Western concept. Aboriginal people, however, use it to describe law and custom, and the ongoing responsibility for country. Many Aboriginal scholars suggest that we find another way to capture the essence of this. Early in her career, Marcia Langton coined the term “ancient jurisdictions”, and argued that to truly understand how sovereignty relates to agreements one has to grapple with competing notions of property and ownership: “the practice of Aboriginal governance is … indistinguishable from the practices of ownership”. The notion of a settlement between the state and our ancient polities is inextricably linked to the proposal for symbolic acknowledgement in the Constitution. This raises a crucial question: does a voluntary request that the state recognise you in the Constitution in fact mean you are agreeing to something about sovereignty?

The complexities inherent in answering such a question explain a growing preference for recognition in an agreement outside the written Constitution.

The retiring chief justice of the High Court of Australia, Robert French, wrote extra-curially in 2009 that “such an agreement could recognise and acknowledge traditional law and custom of indigenous communities across Australia” and that “this is a cultural reality which can be accepted without compromising, symbolically or otherwise, Australia’s identity as a nation”.

Former Aboriginal affairs minister Fred Chaney wrote earlier this year that “pursuing agreements that acknowledge Aboriginal identities as tribes or first nations and which deal with the issues they wish to have addressed is an attractive option. They are not subject to the tyranny of a referendum and the danger posed by the double majority requirement. First nations come to the table as stakeholders, not as supplicants.”

It is not insignificant, then, that the indigenous members of the Referendum Council will first meet with the representatives of these ancient jurisdictions, traditional owners from some of the first nations.

I have written in the past of the disastrous indigenous policy settings that are the most significant barrier to constitutional recognition. In early June, the annual National Native Title Conference in Darwin saw the heavyweights of the land sector – traditional owners as well as sector leaders such as the Northern Land Council’s Joe Morrison – excoriate the Commonwealth for its neglect, its tin ear and its indifference to Aboriginal people’s aspirations. Speaking on a panel about dangerous ideas, Mick Gooda, the Australian Human Rights Commission’s Aboriginal and Torres Strait Islander social justice commissioner, said that his was very simple: that government would talk to Aboriginal polities without everything being filtered through bureaucrats. As Chaney has written, “it is suggested that these are the worst of times” to be considering recognition given the policy environment. The ideas and experience of indigenous Australians “are subservient to the superior knowledge of politicians and bureaucrats”, and “despite valiant efforts by Aboriginal leaders, policy and administration are more centralised than ever before”. The message is clear: the control from Canberra is oppressive.

It was apparent in Darwin that this demoralised sector would trade all the genteel recognition in the world for the right to freely determine their political affairs and pursue their economic, social and cultural development – decentralised arrangements that put power back into the hands of communities. There can be no economic development without freedom.

Melissa George, the chief executive officer of the North Australian Indigenous Land and Sea Management Alliance Ltd and a Wulgurukaba traditional owner, delivered a mighty Mabo Oration at the conference. She argued that a settlement and recognition should be combined. The Referendum Council, of which I am a member, is about to undertake dialogues with first nations across the country on reform proposals. Maybe mob will ask to combine the two. Maybe on the 50th anniversary of the 1967 referendum we will be contemplating the recognition of something no Aboriginal and Torres Strait Islander person alive in 1967 imagined we would still be asking for half a century later: freedom.

Megan Davis

Megan Davis is a Cobble Cobble woman from Queensland, a pro vice-chancellor and professor of law at UNSW, and a member of the Referendum Council.

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