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TREATY - Background Discussion Paper

 

Background - What is a Treaty?

In recent times a call has come from many prominent Indigenous people in Australia for a treaty between the Australian Government and the Indigenous peoples of this land. For example, NAIDOC Week this year had its theme as: Treaty Now: Let's Get it Right. This is a very complex issue and it is important that as many people as possible have a good understanding of what is being discussed. In this context, this paper explores some of the key dimensions of what is meant by 'a treaty'.

Having an understanding of the word, treaty, itself, can be a beginning. The word can be used as a term to cover all kinds of documents that are agreed upon between parties and which cover a wide range of issues. Treaties of one kind or another influence many of life's experiences - for example, workplace relations, marriage, government policies like mutual obligation. These all involve some participation in agreements that require certain undertakings and agreed behaviour. Treaties require both parties to accept the terms and conditions of an agreement.

In today's world at an international level when governments are dealing with one another, treaties are agreements which establish ground rules through which sovereign nations relate to each other. Quite often, an outsider will be invited to try to broker a treaty so that all parties receive a fair hearing and to ensure that the agreement reflects the demands of all who are involved. The various Middle East accords are a good contemporary example.

What then of the present discussion regarding the call by Indigenous peoples for a treaty in Australia?

The story of Australia's colonization is the place to begin. By 1788, Great Britain had a history as a colonizing nation. British records show that they were in the habit of forming treaties with other nations from a very early period. In 1217, Henry III entered a treaty with the Dauphin of France. Later, when the

British and other European countries entered the so-called 'New World', treaties and agreements with indigenous people ensued. However, Australia was the exception. It was the only country colonized by the British in which there was no attempt to form some type of treaty with the Indigenous peoples. The British dealt quite differently with the Indigenous peoples of the present United States, Canada and New Zealand. A brief look at their colonizing stories will demonstrate the differences and give some insights into why the Indigenous peoples of Australia are now seeking serious discussion regarding an offical treaty.

United States of America

In North America from the time of first settlement, in the years 1533-1789, that is, prior to Independence, the administrators of British colonies treated the Native Americans or Indian nations as sovereign entities. That is, as peoples having their own systems of laws, traditions and understandings about land tenure. These treaties were relationships between sovereign nations. These were based on the recognition that Native American tribal groups had the equivalent status to that of the colonisers. The British Imperial Government instructed colonial administrators that land could only be acquired by purchase from the Native Americans/Indians. This policy was formalized, and applied uniformly to all the North American colonies in the Royal Proclamation of 1763. After Independence, from 1789 to 1871, the United States Government assumed the role of the British and Spanish governments and continued the earlier British policy entering into treaties. However, in 1871, treaty making with the Indian tribes was discontinued as it was seen as an impediment to the assimilation of Native Americans into white society.

Thereafter, agreements rather than treaties were to be used for negotiations. Today, negotiated settlements are used to deal with disputes between Native American peoples and the United States Government.

Canada

Prior to Confederation in Canada, almost forties treaties, mostly peace treaties, were negotiated between First Nations and the British Crown. However, Native peoples in Canada were not considered as sovereign powers as they were in the United States. Canadian treaties tended to follow a pattern of surrender of lands in return for particular rights, for example continued hunting and fishing rights or supplies of monetary payments.

After Confederation, the Canadian Federal Government still maintained the treaty making process, although the process changed. These later treaties, called numbered treaties, because that is how they were named, contain the same core provisions: in exchange for surrendering all their rights and title to their lands, the Native peoples were to receive monetary annuities in perpetuity and reserves.

These later treaties are not treaties created in accordance with international law. They do not create new rights, but recognize pre-existing rights. Treaties in Canada do not have primacy over federal law. However, they are supreme in relation to Provincial law. The treaty making process continues in Canada up till the present time.

New Zealand/Aotearoa

The Treaty of Waitangi, signed in 1840, is recognised as the founding document of New Zealand/Aotearoa. The treaty established the right of the Crown to govern in NZ/Aotearoa and it established the terms of a peaceful settlement. In exchange Maori rights to their lands and resources were affirmed and Maori were granted the rights and privileges of British citizenship. When NZ/Aotearoa became constitutionally independent from Britain, the Treaty obligations of the British Crown were transferred to the Crown in NZ/Aotearoa.

The Treaty of Waitangi must be seen in the context of events that preceded it. One of the major events was the signing of the Declaration of Independence in 1835. This was arranged by the British Resident, the King's representative in NZ/Aotearoa. It was an attempt to bring about a Maori Government. There was great concern among the Maori and the missionaries about the lawlessness of the white (Pakeha) whalers and traders. It was hoped that the signing of the Declaration would lead to establishing a body to prepare legislation for the administration of a new nation. Members of the Maori society had been abroad and they had learned about setting up legislative procedures required for the governing of a nation. At this time, Britain was reluctant to intervene in the affairs of NZ/Aotearoa. However, when fighting among Maori tribes began there was an appeal by the whalers and traders for Britain to take some control. This had the support of the missionaries. There were also rumors that the French were about to undertake large interests in NZ/Aotearoa. The Maori, if they were to be colonised by anybody, wanted it to be by the British. Eventually, Britain conceded and the signing of the Treaty of Waitangi was the result. The treaty was written in Maori and in English. However, there were some nuances in the Maori language that were lost when translated into English. This was not appreciated until some time later. So although, it looks as if the treaty was a wonderful way of respecting the Maori nations, it has had some serious misgivings over time, in terms of true recognition of Maori sovereignty.

However, it is obvious that the colonisation of NZ/Aotearoa was a very different process from the colonization of Australia. For one thing there was a long history of representatives of the British Crown dealing with Maori chiefs. Therefore, there was an understanding by the British that the Maori did have a system of Government whereas this was not evident to those who took possession of Australia.

Australia

No treaties or agreements were formally entered into and enacted with the Indigenous peoples of Australia despite the instruction issued to James Cook to "Take possession of the continent with the consent of the natives".

This instruction was ignored as Cook took possession of all that he saw in the name of His Majesty, George III. The British became owners of land where no inhabitants were held to have rights, acting on the principle of terra nullius, an empty, uninhabited country. There was little acknowledgment of the possibility that Indigenous sovereignty, land tenure systems or systems of law and governance might survive colonisation. There was no recognition that any such systems existed. Part of the problem was that there had been no formal meeting with any Indigenous "chiefs". It is interesting to note that the Indigenous peoples of Australia had a non-hierarchical system of social organisation. There are no "chiefs" who govern territories. Rather, the social organisation Indigenous culture is one that acts from a communal/clan stance rather than a strictly hierarchical one. The colonisers would not have seen this as representing an organized society and this could possibly have had some influence on the lack of recognition of sovereignty in this new British colony.

Whatever, there was a complete denial of the sovereignty of Indigenous peoples in this country. Only with the Mabo High Court decision of 1992 did the legal system in Australia take the first step in redressing this.

An Historical Perspective - a Treaty for Australia

While there has been no formal treaty in Australia between the British Crown and Indigenous peoples, some attempts made in some places:

  • in the early days of settlement in Tasmania; and
  • two treaties were negotiated on the sites of Melbourne and Geelong in Victoria.

However, these were not significant enough to make a wider impression and to lead to a recognition of Indigenous sovereignty across the whole country.

The most significant negotiations between Indigenous peoples and the Australian Government have occurred in the Northern Territory and these have been in recent times:

  • in 1963 in protest at bauxite mining at Gove, the Yolngu clan leaders prepared a petition on bark paintings. It was the first traditional document recognized by the then Commonwealth Government. The petition proclaimed Yolngu law, depicting traditional relations to land and was presented in English and Gumatj the language of the people. It was printed on bark. Although unsuccessful, the petition has significance in that it recognized that there was such a thing as Yolngu law. This petition remains displayed in Parliament House.
  • in 1972 the Larrakia people whose territory covered the area on which Darwin is situated, sent a petition to the Prime Minister, Mr McMahon, requesting that a treaty process be established. In this process, all the clan/language groups in the area were to be interviewed and all had to agree to the deeds of the treaty. The Prime Minister eventually replied that it was not appropriate to negotiate with British subjects as though they were foreign powers. The reason that treaties had never been negotiated was partly that of the difficulty of identifying the people and groups with whom negotiations could be conducted.
  • in April 1979 there was a call by the National Aboriginal Conference (NAC) for the Federal Government to negotiate a 'treaty of commitment' between representatives of Aboriginal Australians and the Commonwealth. The Conference began speaking of a makarrata, a term taken from a north-eastern Arnhem Land language, where it means the end of a conflict and the resumption of normal relations between communities. The Federal Government was prepared to discuss the concept of an agreement, but ruled out a treaty because of its connotations of separate nations within Australia. There may also have been concern that a treaty implied massive group compensation.

Around this time, the work of publicising and promoting the concept of a treaty was taken on by the Aboriginal Treaty Committee, a non-Aboriginal organisation of prominent citizens including Dr H C Coombs and the poet Judith Wright. This committee was convinced that without a treaty or similar instrument, Acts of Parliament would be too subject to the winds of political change. It proposed that the treaty, covenant or convention include provisions relating to:

  1. the protection of Aboriginal identity, languages, law and culture;
  2. the recognition and restoration of rights to land;
  3. the conditions governing mining and exploitation of other natural resources on Aboriginal land;
  4. compensation to Aboriginal Australians for the loss of and damage to traditional lands and to their traditional way of life;
  5. the right of Aboriginal Australians to control their own affairs and to establish their own associations for this purpose.

The Aboriginal Treaty Committee succeeded in having the treaty question referred to the Senate Standing Committee on Constitutional and Legal Affairs and the Senate Committee Report was published in 1983. The Senate Committee advised that its preferred method of legal implementation of a compact between the Aboriginal population and the Commonwealth would be a referendum to amend the Constitution. The Senate Committee Report did not immediately lead to any new treaty initiatives and the Aboriginal Treaty Committee, finding a lack of political will to implement a treaty, ceased its activities in February 1984.

1993 Aboriginal leaders presented the Prime Minister with a Peace Plan in response to the High Court's Mabo decision. The plan called on the government to negotiate "constitutional acknowledgment of Aboriginal and Torres Strait Islander rights".

In 1994 the Federal Labor Government asked the Council for Aboriginal Reconciliation whether there should be a place in the reconciliation process for a formal document or documents of reconciliation. Both the Council and ATSIC advocated a formal document of reconciliation, with ATSIC calling for a treaty which "must forge the ground rules for relationships between indigenous and non-indigenous Australians based on justice and equity and the proper recognition of indigenous rights".

Elected in 1996, the Howard government rejected the possibility of a treaty with indigenous Australians and instead coined the phrase "practical reconciliation" to describe its policy focus.

After the success of the Reconciliation Walks at the time of Corroboree 2000 and the following months, the call for a treaty has once more been heard from Aboriginal leaders. In January 2001, ATSIC commissioner Steve Gordon, stated that a move towards a treaty was essential in guaranteeing equality for the Indigenous people of Australia. He stated that the failure of all governments to enter into a treaty has led to a history of dispersal, removal and dispossession of Aboriginal and Torres Strait Islanders.

Current Issues on the Agenda

It has been stated by a number of people, including the Prime Minister, John Howard, that a treaty would cause division in the country because it would set up a separate nation for the Indigenous people. The Prime Minister and the Liberal Party have said that they believe that practical reconciliation is more important, that is the provision of health, housing, education. Access to these are certainly important for Indigenous peoples. However, access to these are rights of all Australian citizens. The treaty process is saying that there are distinct rights that the Indigenous peoples have, because they are the first peoples of this land with which they have a spiritual relationship and their own systems of law and their own languages. A treaty is a way of recognizing their unique place in this country and sovereignty.

In the Barton Lecture, Diversity and Unity in Modern Australia, broadcast on Sunday 18 February 2001, John Hirst, Reader in History at La Trobe University in Melbourne, identified the difficulties he sees with treaties. He believes that the setting up of ATSIC recognises the special position that Indigenous peoples hold in the country. He questions with whom the treaty would be made because there is not one traditional group of Indigenous people, but many clans/language groups. He considers that Mabo and the agreements over Native Title that have followed are, in fact, treaties that recognise traditional rights to land. However, there are many who see that the Wik amendments to Mabo take away the basic right of recognition of first ownership of the land. Mabo was indeed a landmark, but it was about Native Title to land. Advocates of a treaty are seeking a recognition of indigenous spirituality, and of systems of laws, and not just original ownership of land.

ATSIC chairman Geoff Clarke has nominated the theme for NAIDOC Week this year as TREATY - let's get it right. ATSIC is convinced that this year, the Centenary of Federation, is the right time to formally start this debate regarding a treaty. He believe that an overwhelming majority of Australians want black and white Australians to walk together and to be proud of the fact that Australia has one of the most flourishing and vibrant Indigenous cultures in the world. ATSIC would be a key player in the development of a treaty.

However, there are some within the Indigenous community who have misgivings about this approach to a treaty. They see ATSIC as a Government controlled organisation and fear that this may indicate that someone is telling them that they must have a treaty. This leads to a fear that a treaty may be developed by a small group and not the whole population of Indigenous peoples. Such an unequal way of establishing a treaty is unacceptable to some. If there is to be a treaty, it is preferred that it be worked out according to the Indigenous people and on their terms.

In a paper presented to the regional gathering in preparation for the World Conference Against Racism to be held in South Africa in September, Mary Graham from FAIRA Aboriginal Corporation in Brisbane, suggested that there be an accord rather than a treaty . This accord is to be based on a negotiating process called the Oslo Accord established by a Norwegian sociologist to broker a peace accord between Israel and Palestine. Mary is advocating that a process such as this be involved to arrive at an accord between the Indigenous peoples and the Australian Government. In such a process, the Indigenous peoples would be recognized as having sovereignty. Thus, they would be accorded equal status as the Australian Government who would be the other member of the negotiating process. An accord gives priority to the Indigenous peoples as having much to offer to the process. Essentially, an accord process is about establishing peace . The proponents of this approach believe that there is, at present, no real peace between the Indigenous cultures of this country and those who live according to a Western style of culture. For an accord to become a reality, there would need to be an independent broker to bring it about. The broker could be a country within the region., or it could be one person or it could be a specialist group with expertise in the area of negotiation. Mary Graham says that: "the Accord process entered into contains a very broad agenda. That is, instead of Indigenous people engaging in a fractured system of consulting and negotiation an alarming array of issues with a confusing array of outcomes, a clear integrated assessment of the situation and status of Indigenous people can be achieved."

What a Treaty Would Achieve

Whether it be through a process of consultation with Indigenous and non-Indigenous groups within Australia or whether it be through a peace accord process, it is important for the discussion on the treaty to go ahead in this year of the Centenary of Federation. One hundred years ago, there was no recognition of the special place that Indigenous peoples have in this nation.

So, what will such a treaty achieve?

  • A treaty will not lead to a separate nation;
  • A treaty will acknowledge the truth of Australia's history;
  • A treaty will enshrine the rights of Australia's Indigenous peoples within the limits of the Australian nation;
  • A treaty will enshrine the rights of Indigenous people to their culture, land, spirituality, languages and the rights to raise their own children.

It has been claimed that the lack of a treaty has kept the Indigenous people of Australia as second class citizens, denied their own spirituality and culture. However, it is recognized that achieving a treaty will not come easily. It must only come after long and well organized negotiations with the Indigenous peoples themselves. At the launch of the ATSIC Treaty documents in Melbourne in May 2001, Geoff Clarke said "we need to continue talking amongst ourselves about a treaty. We need to decide is this the right way for us to go forward. What kind of treaty model should be adopted? What would we like to see included in the treaty ? What should a treaty mean for sovereignty and self-determination?"

Unless these questions are answered correctly by Indigenous people themselves, a treaty may do nothing that it sets out to achieve. In the end, it must be a formal and binding recognition of the sovereignty of the Indigenous peoples over this land and the rights they hold as the first peoples of this land.

References

Clarke, G
ATSIC Speech - Treaty Document Launch, 8 May 2001

Dillon, C
Speech at the Sardinian Club National Conference, 10 March 2001

Hirst, J
Diversity and Unity in Modern Australia. The Barton Lectures (Part 2), 18 February 2001

Graham, M
Application of the Oslo Model for Relations Between States and Indigenous Peoples. Land Rights, March 2001

Langton, M A
Treaty Between Our Nations? Indigenous Studies, University of Melbourne

Reconciliation - Where To From Here? The Case for a Treaty in Polliewatch No. 42, July 2000

Orange, C
The Treaty of Waitangi. Allen and Unwin.

Oliver, W H
Claims to the Waitangi Tribunal. Waitangi Tribunal Division, Department of Justice, NZ

 

Social Action Office - CLRIQ
July 2001

 

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