Indigenous treaties worth all the problems
29 June 2022
Legislation will need to spell out the terms of Indigenous Treaties to ensure consistency with Australia's constitution and laws relating to land and access rights. This is not impossible but is bound to be complex and contentious
ADELAIDE - The history of Australian governments in dealing with Australia’s Indigenous peoples is very dismal indeed.
The now departed and unlamented Liberal-National Party government continued this tradition whereby weasel words were deemed an adequate substitute for meaningful action.
This lamentable domestic history tends to throw a flattering light upon the work of Sir Hubert Murray and his successors in Papua New Guinea, who assiduously protected and preserved the land rights of the Indigenous people, even in the face often concerted attempts to overturn that policy.
When those rights were overridden, as was the case in Bougainville, the appalling results served to highlight the wisdom of Murray's approach to matters of social equity.
Alas for Indigenous Australians there was no equivalent to Sir Hubert Murray with the humanity and foresight to implement similar policy.
The last 20 years or so have seen important changes, such as the Mabo and Wik decisions of the High Court, that have somewhat restored the ancient rights and liberties of Indigenous Australians.
Despite this, there is still work to be done and the Uluru Statement from the Heart has outlined some of those tasks.
I think there is sufficient goodwill in the wider Australian community to enable a constitutional change to create an Indigenous Voice to Parliament to succeed.
As usual, the reactionary right will be opposed but, as the outcome of the plebiscite on gay marriage suggests, these disgruntled conservatives no longer hold sway in the way they once did.
The negotiation and implementation of treaties relating to hundreds of notional indigenous 'nations' seems a much more problematic issue to me.
Even if you assume that what were once called 'tribes' may legitimately be conceived as 'nations', which is not a given, then the legal intricacies inherent in the process seem to me to verge upon the insurmountable.
I might be wrong, but I’m sceptical that the current body of common and statute law is able to encompass such treaties.
To make this aspiration a reality, I believe the federal parliament will need to pass enabling legislation to allow such treaties to be written.
This legislation very probably will need to spell out some of the basic terms and conditions of the treaties to ensure, at a minimum, consistency with the prevailing constitutional arrangements relating to states, territories and the commonwealth, as well as other laws relating to such matters as property and access rights.
This is not impossible but it is bound to be complex, difficult and contentious.
So, it may well prove that embedding a Voice to Parliament in the constitution will be a relatively easy task compared to other proposals mentioned in the Uluru Statement.
I guess time will tell.
In his article, ‘The unvirtuous circle of SA's Blackfella affairs’, Phil references a need to recognise that Indigenous Australians never ceded sovereignty over their lands.
It is undeniably true that the Indigenous peoples fought to retain sovereignty over their lands. This is an important historic truth that needs to be acknowledged in any reconciliation process.
However, it is important to understand that doing this will not undo or render invalid constitutional arrangements which apply in Australia today.
The lesson of history is that sovereignty is almost without exception never ceded other than through force of arms.
This depressing reality has been a feature of human societies almost from the very moment civilisations began to arise.
Thus, some 4,000 years ago, the Babylonians seized lands that belonged to others in order to create their short lived empire before that fell under the control of yet another emergent power.
Similarly, the ancient Gauls who lived in modern France and Belgium, did not willingly cede their sovereignty to the Romans.
Instead, they were ruthlessly crushed by the Roman legions and forced to submit to the rule of Rome. The same fate befell the ancient Britons.
More recently, after World War II, large swathes of Eastern Europe unwillingly fell under the control of the USSR and that control was maintained by force until the eventual collapse of the Soviet empire in 1991.
Now, we see Vladimir Putin unapologetically seeking to reinstate 'Greater Russia', his first step being to use military force to annex Ukraine or large parts of it.
The only situation I am aware of where sovereignty was ceded voluntarily was in Fiji.
In that case the indigenous ruling elite of the Fijian islands had attempted to establish an independent kingdom but found the task of controlling it beyond their capacity.
They eventually felt compelled to invite the British to take over governance of the islands rather than fall victim to the depredations of the several other European powers which were jostling to exert control over them.
In a sense, they concluded that British rule was a lesser evil than foreign induced anarchy.
By happy chance the Fijians fell under the control of a British colonial power that was happy to agree to protect their basic rights, notably their ownership and control of traditional lands.
By even happier chance, this same policy was introduced in Papua New Guinea about 20 years later.
In a somewhat similar way, the Maori ceded their sovereignty over what is now New Zealand to the British through the Treaty of Waitangi.
In this case, the fierce armed resistance of the Maori during the so-called Maori Wars allowed them sufficient leverage to extract a number of concessions from the British even though the treaty itself for a long time was honoured more in the breach than the observance.
So, even if there is some official concession that Indigenous Australians did not voluntarily cede sovereignty of their lands, the material impact of a treaty upon how modern Australia is governed seems destined to be slight.
Specifically, notions that ownership of traditional lands might be recovered unconditionally are completely unrealistic.
The current arrangements in relation to land rights, with all their complexities and ambiguities, seem likely to remain in place largely unchanged.
To do otherwise would be to invite much strife and contention that would likely to hinder the achievement of other objectives in the Uluru Statement.
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