Introudction

CONTENTS

Introduction
Richard J. Wood

A Time for Reconciliation
Bob Hawke

Treaty is a Recipe for Separatism
John Howard

A Treaty for Land Justice and Self-Determination
Janine Haines

Why a Treaty?
Galarrwuy Yunupingu

Aborigines are Australian, too
Bob Liddle

Fallacies Weaken the Case for a Treaty
Geoffrey Blainey

Why Whites also Need an Aboriginal Treaty
Roberta Sykes

The Quest for Aboriginal Sovereignty
Hugh Morgan

Legal and Constitutional Considerations
Mark Cooray

Australia as Terra Nullius
Peter van Hattem

Canada:  Towards Aboriginal Self-Government?
Jean Chretien

American Indian Treaties:  Historic Relics
Peter Samuel

The Long Aftermath of Waitangi
Antony C. Turner

Appendix 1:  The Barunga Statement

Appendix 2:  Preamble to the ATSIC Bill

Appendix 3:  Press Attitudes to a Treaty

Appendix 4:  Aboriginal Population and Land

---

INTRODUCTION

Richard J. Wood

Should the Australian Government sign a treaty (or compact?) with the Aborigines?  If so, what should it involve?  Should it be merely symbolic or should it involve substantial reparations, including land?  Is a treaty legally and politically feasible?  What will the effects of it be?  Will it divide or will it unite Australians?

These are some of the questions which this booklet addresses.  Its aim is not to present a consensus of views but to provide the reader with the main arguments and questions surrounding the idea of a treaty.  It contains articles by some of the people who will be main players in the debate:  the leaders of the Government, the Opposition and the Australian Democrats, a prominent Aboriginal leader supporting the treaty and a successful Aboriginal businessman opposing the treaty, assessments of the legal and constitutional possibilities and obstacles and of the potential economic and social impact, international comparisons with former British colonies which have enacted treaties with their indigenous populations, and the stances taken by Australia's main newspapers.

The context of the recent re-emergence of the treaty issue is Australia's Bicentenary, but the issue predates that.  In April 1979 the National Aboriginal Conference (since disbanded) called unanimously for a treaty with Aboriginal Australians.  In June 1979 Dr H.C. Coombs, former Governor of the Reserve Bank and between 1967 and 1977 Chairman of the Council for Aboriginal Affairs, made a broadcast on ABC Radio calling for a treaty involving land justice for Aborigines in which he said, in part:

"It is not only security for Aboriginal occupation of these lands which is necessary to give legitimacy and some colour of justice to our sovereignty over this continent.  I believe that it is necessary for the Commonwealth Government on our behalf to enter into negotiations with the freely chosen representatives of Aboriginal Australians to conclude a treaty which will bring to an end the long period of hostilities between black and white Australians, enable them to compose their differences and to embark together on a future of peace and friendship.  Such a treaty will need to establish a kind of constitutional basis for the relationship of Aboriginal Australians to Australian society generally, a basis which is founded on mutual respect and on recognition of the rights of Aborigines to a distinctive identity within that society.  Land rights will, of course, form an essential component of such a treaty".

That same year the Aboriginal Treaty Committee, chaired by Dr H.C. Coombs, and composed entirely and deliberately of non-Aborigines, was formed to lobby government and persuade the public of the need for a treaty.  A book called Its Coming Yet, arguing the case for a treaty and authored by Committee member Stewart Harris, was published.

The Fraser Government declared itself willing in principle to consider the idea of a treaty or Makaratta.  In 1982 the Senate Select Committee on Legal and Constitutional Affairs set about examining the possibilities.  The Senate Committee's report was issued the following year under the title Two Hundred Years Later.  It recommended that the Government consider the insertion into the Constitution of a provision that would give the Commonwealth powers to enter into a compact (not a treaty) with representatives of the Aboriginal people.  The Fraser Government did not act on this recommendation.  Associate Professor Mark Cooray reviews the findings of this report later in this collection.

In November 1983 the Aboriginal Treaty Committee disbanded but its final message promised that members would continue to "press the Commonwealth Government to take the steps necessary to a binding, negotiated treaty" and to support Aboriginal campaigns for "material, social and spiritual independence".  A survey of the Committee's work was published in 1985 by one of its members, Judith Wright, under the title We Call for a Treaty.

The election of the Hawke Government in 1983 revived hopes of national land rights legislation involving Aboriginal control of mining, inalienable freehold title, protection of sacred sites and compensation, all principles espoused by the new Minister of Aboriginal Affairs, Clyde Holding.  As a consequence, the idea of a treaty was temporarily pushed into the background.  It was the Prime Minister himself who, in mid- 1987, revived it by talk of the need for a compact to be negotiated in the context of Australia's Bicentenary.  In June 1988 at a meeting of the National Coalition of Aboriginal Organisations at Barunga in the Northern Territory, Mr Hawke reiterated his Government's commitment to a treaty or compact (the distinction between the two concepts was blurred) to be concluded before the end of the current Parliament (that is, 1990).  A treaty, he said at the lime, "would ensure a proper and lasting reconciliation" between Aborigines and other Australians, and he repeats those sentiments in this booklet.

The treaty's exact content, the process of negotiation it will involve, and questions such as who will sign it on behalf of the Aboriginal population, are matters yet to be determined.  The Government has said it will pay for seven Aboriginal elders to organise consultations on the concept which would then culminate in a convention.  It is in the Aborigines' court to come up with a proposal for the content of the treaty, but it is already clear that many Aboriginal activists see it as a means of reviving national land rights legislation.  The NCAO issued a statement following its meeting with the Prime Minister in June, known as the Barunga Statement (republished in this booklet).  It contains calls for "self-determination and self-management" and "a national system of land rights".  It is likely to serve as an ambit claim, and is yet to be endorsed by the Government.

At about the same time as the Barunga meeting, the Federal Government proposed a statement to be read at the opening of the New Parliament House which was to acknowledge the occupation of Australia by the Aboriginal people prior to the arrival of Europeans.  The proposal failed to gain the support of the Federal Opposition.  The sentiments contained in that statement, however, are reiterated in the preamble to the Aboriginal and Torres Strait Islander Commission Bill which, at the time of writing, is before the Senate.  The implications of this preamble are discussed by Peter van Hattem in his contribution to this booklet.

RESPONSES

The proposal of a treaty by the Prime Minister has elicited strong but conflicting reactions from different sections of Australian society.  The Leader of the Federal Opposition, John Howard, has promised to tear up any treaty signed by the Hawke Government with the Aborigines.  Mr Howard states his reasons in his article in this collection.  The Australian Democrats, in contrast (see the article by Janine Haines), are promising support for a treaty that guarantees Aborigines national land rights, self-determination and self-management.  The quality press, also have generally endorsed the idea.  The general public, on the other hand, seems less enthusiastic.  A Newspoll survey published in the Melbourne Herald (20 June 1988) found that while a majority of people (53 per cent) felt that we have mistreated the Aborigines, only a minority (41 per cent) favour the signing of a treaty.  It is likely that the public would be more sympathetic to the idea of a treaty or a compact, if it did not imply extensive land rights.  Eighty per cent disagreed with the proposition that Aboriginal people should receive more government benefits and compensation than other Australians.

Aborigines, like non-Aboriginal Australians, appear divided on the question of a treaty.  Some Aborigines fear that it will be symbolic rather than offer substantive gains.  Meeting in Cairns in October 1988,  the NCAO warned that a treaty must not be seen as a substitute for land justice.  For quite different reasons Aboriginal businessman, Bob Liddle, writing in this booklet, is even more sceptical of the benefits of a treaty.  Chairman of the Northern Land Council, Galarrwuy Yunupingu, however, is just one of many prominent Aborigines who have endorsed the proposal.

It is as yet unclear what effect, if any, the controversy surrounding the administration of Aboriginal affairs and over the Aboriginal and Torres Strait Islander Commission Bill will have on the progress of the treaty, other than (temporarily) to overshadow it.

THE ARGUMENTS

It is for the other contributors to this booklet to put the various arguments for and against an Aboriginal treaty.  However, it is possible here to touch on some of the issues which are addressed.  The arguments raised by the various contributors to this collection fall roughly into three main areas:

• the moral and historical basis of a treaty or a compact;
• its probable effects;
• its political and legal feasibility.

MORAL AND HISTORICAL BASIS

The re-emergence of the treaty issue during Australia's Bicentennial year is no coincidence.  The Bicentenary has inevitably brought attention to bear on Australia's foundations -- although perhaps not as much as it should -- evoking feelings of pride or regret or a mixture of the two.  At stake to some extent in the proposal of a treaty, both supporters and critics would agree, is the legitimacy of institutions of British origin in Australia.

Supporters of a treaty argue that Australia is unique among former British colonies in not recognising the sovereign ownership of the country by its indigenous population prior to the British arrival.  Aboriginal sovereignty was never voluntarily ceded, but was usurped in what since 1788 is depicted as an on-going conflict between blacks and whites.  In support of these claims recent historiography, such as Henry Reynold's Law of the Land, which challenges the assumption that in 1788 Australia was terra nullius (unowned land) and Grassby and Hill's Six Australian Battlefields which emphasises on-going racial conflict in Australian history, is cited.  Until a treaty acknowledges these claims and attempts to make reparations, the European presence here cannot be deemed wholly legitimate.

Critics of a treaty, on the other hand, argue that by questioning the legality of Australia's foundations, underplaying the social harmony which has characterised Australia's history and providing a justification for claims to Aboriginal sovereignty a treaty will weaken the legitimacy of existing political, legal and social institutions.

There are also other arguments raised.  The validity of terra nullius is defended on the basis that economic development and organised government were apparently absent in Aboriginal Australia when Arthur Phillip arrived.  A related point rejects the assumption that there is or ever was an Aboriginal nation with which a treaty could have been negotiated.  There were, instead, hundreds of tribes and clans speaking different languages, periodically at war with one another and without any over-arching system of government.  This would not necessarily have precluded the making of a separate treaty with each tribe or clan, as each was encountered, but it would have made the treaty negotiation process difficult and today would make it unmanageable.

The point is also made that the history of every country consists, at some time or another, of one immigrant population displacing another.  Britain, itself, has fallen victim to successive waves of invaders -- Celts, Romans, Saxons and Normans.  Should the descendants of the people displaced by these invaders be entitled to a treaty and to claim land in Britain today?  Even the Australian Aborigines, as Geoffrey Blainey argues, most likely came to Australia in waves, one wave displacing another (although Roberta Sykes disputes this).  If treaties were to be negotiated and reparations made between all peoples who at some stage in their history had been involved in conquest either as colonialists or as victims of colonisation, the process would be never-ending.

EFFECTS

Opponents of a treaty claim that it will divide Australia because it assumes the separateness of Aborigines, and that it may well form the basis of claims for Aboriginal self-government, as have the treaties in Canada.

Supporters believe that a treaty will constitute an act of reconciliation, helping to unite an Australia which is already divided.  Most supporters do not envisage Aboriginal sovereignty as a realistic option;  and the Prime Minister excludes it as a goal.  However, the precise meaning of Aboriginal self-determination as advocated by supporters, including Senator Haines in this booklet, is unclear.

What does seem clear is that, should the treaty turn out to be merely a symbolic gesture without substantial gains for Aborigines, the effect of having raised expectations without satisfying them will be to exacerbate tensions rather than further the goal of reconciliation.  On the other hand, substantial land grants are sure to elicit a reaction not only from pastoralists and mining companies, but from the general public.  Negotiating a treaty will require a fine balancing act.

Central to any assessment of the effects of a treaty must be the question "Will it help Aborigines?"  This, of course, depends on what the treaty contains.  But even substantial land grants, Bob Liddle argues, only benefit a small minority.  He argues, moreover, that a treaty will divert attention away from the many areas of genuine Aboriginal need, principally the need for education and employment.  In New Zealand, Canada and the United States, where treaties do exist, the position of the indigenous peoples, as in Australia, is close to the bottom of the socio-economic scale.

Not even the supporters of a treaty or compact see it as in any way a total answer to the problems faced by Aborigines, but rather as a framework for other policies.  Underlying the debate, however, is a basic dispute on whether the best path for Aborigines lies in greater autonomy as a separate stream in Australia with their own economic base in traditional lands and their own structures of law and authority, or whether the best path lies in greater involvement in the mainstream economic and social life of Australia.  Bob Liddle and John Howard both fear that a treaty is further evidence of a move in Aboriginal affairs towards separatism.  Both believe that if Aborigines are to gain acceptance as full and equal citizens, then government policy must not treat them as different.  Antony Turner writing on New Zealand and Jean Chretien in Canada identify a trend towards separatism in those countries, albeit from different perspectives.

FEASIBILITY

Apart from the question of the desirability or not of a treaty, there is the issue of its feasibility.  In what form, if any, is it legally and politically practicable?  The 1983 Senate Committee Report, Two Hundred Years Later, concluded that a treaty is untenable because it implies international status for an Aboriginal nation, but that the Commonwealth Government does have the authority to enter into a compact.

One practical difficulty is who will sign a treaty.  The proposed Aboriginal and Torres Strait Islander Commission, which will be composed of regional councils elected by Aborigines, is at present the most likely option.

Supporters of a treaty or compact generally consider that the most desirable path would be to entrench such a document in the Constitution.  A constitutional amendment requires the approval of a majority of people in a majority of states.  Incorporating a treaty or compact in the Constitution, however, while legally feasible, may not be politically possible, particularly in light of the overwhelming rejection of the referendum proposals in September 1988.  However, this question, like the fate of the treaty proposal in general, will depend on the way in which the public debate which is ahead of us unfolds.