A Treaty for Land Justice and Self-Determination

Janine Haines

Senator Janine Haines is Leader of the Australian Democrats.

The Australian Democrats hold the balance of power in the Senate, so the fate of any attempt to legislate for a treat will be very much in their hands.  The Leader of the Democrats sees the negotiation of a treaty as an important step toward the achievement of land rights justice, self-determination and self-management for Aborigines.

SINCE 1979 when the National Aboriginal Conference called for a treaty to be negotiated between the Aboriginal people and the Commonwealth Government, much has been spoken and written about the proposal of a treaty, there being considerable diversity of opinion among both Aboriginal and non-Aboriginal Australians with regards to such a proposal.

At one end of the spectrum we have some people claiming that a treaty will divide the nation and lead to a form of apartheid.  At the other end we have the view, held by my party, espousing total commitment to the negotiation of a compact or treaty which will be of major significance in bringing Aboriginal and Torres Strait Islander people closer to their goals of self-determination and self-management.  In the middle we have "enlightened" opinions such as the one proclaiming, "If history has shown anything, it is that it is often better to muddle along with ameliorative measures than to attempt sweeping and definitive solutions to problems that are in their nature not susceptible to neat resolution". ⁽¹⁾  Aboriginal and Islander people, too, are divided over the benefits to be gained from such a move and/ or the principles to be included in a treaty should one be negotiated.

I believe we have reached an opportune time in our history for Aboriginal and non-Aboriginal Australians to begin, together, to shape a better future for our descendants.

Following the release in August this year of a report by the United Nations Working Group on Indigenous Populations, Australia is once again condemned in the eyes of the world for violating its international human rights obligations relating to non-discrimination and un-equal treatment of its indigenous people.

A Treaty of Commitment between Aboriginal and non-Aboriginal Australians will open the way for Aborigines to take their rightful place beside the rest of Australia, with all of the obligations, opportunities and responsibilities that implies.  The central aims of such a treaty should be:

• to acknowledge the justice of Aboriginal land rights;
• to compensate Aborigines for the loss of those traditional lands which cannot now be restored to them;  and
• to provide for Aboriginal self-management and self-determination.

LAND RIGHTS

Australia is the only former British colony not to recognise native title to land, ⁽²⁾ but most Australians would be unaware that during the 1830s various attempts were made on behalf of the British Government to secure land rights for the Aborigines. ⁽³⁾  Unfortunately, those efforts were resisted by individuals who let greed and self-interest overrule any consideration of what was right and just, thereby cementing the place of Aboriginal and Torres Strait Islander people on the lowest rung of Australian colonial society.

TREATY COMMITMENTS ELSEWHERE

Although it is true that the treaty commitments made in New Zealand, Papua New Guinea, Canada and the United States were broken with appalling regularity by Europeans, the fact remains that the inherent land rights of the indigenous people were formally acknowledged.  As a consequence, the nation-to-nation encounters which followed European occupation in these countries, while often marred by European arrogance, demanded a respect for the rights of indigenous peoples which was conspicuously lacking throughout the European "settlement" of Australia.  Both the Australian Government and the Aboriginal people are watching with interest the developments taking place in New Zealand at the present time with an increasing number of land claims being approved by the Waitangi Tribunal.

THE RELEVANCE OF NORTH AMERICAN MODELS

The Australian Democrats are in favour of land rights legislation modelled on North American land claims legislation, which would be implemented by a National Aboriginal Land Claims Commission.  Land rights legislation will enable tribal and semi-tribal people to establish their chosen life-styles, and so regain their dignity.  However, such legislation may not be practicable to those people who are completely alienated from their land.  Where traditional lands cannot be restored, compensation is necessary for dispossession and for the damage to the alienated people's way of life.  Claims to this compensation fund would be made through an all-Aboriginal and Torres Strait Islander Claims Commission, similar to the North American Indian Claims Commission.  In the United States, the Indian Tribes not only have control over the land but also the right to levy their own taxes on anybody who comes on that land, because they have domestic sovereignty.

The Australian Democrats support the formation of a National Aboriginal Mining and Industrial Council which will negotiate, as a party principal, with any company planning mining or other industrial development on Aboriginal lands.  We believe that occupants of tribal lands should have the power to refuse to permit mining after being presented with the full facts, including the economic, social and ecological effects of building towns near mines on Aboriginal land.  At the present time the Northern Territory has the only land rights legislation giving Aborigines the power to veto mining and other development.  Aboriginal people in Victoria and South Australia do have some power, albeit limited, to refuse to allow mining on their land, but have no power of veto as such.

It is hoped that the Democrats' specific objectives set out above could be implemented within the framework of a treaty.  However, the Australian Democrats favour the enactment of these legislative proposals as soon as possible, while the precise terms of the treaty are negotiated and finalised.  Once the treaty is adopted, legislation affecting Aborigines and Torres Strait Islanders must be revised, as necessary, so as to be consistent with its overriding requirements.

PROBLEMS

Negotiating the terms of a treaty or compact will not be easy.  Careful consideration will need to be given to a number of sensitive issues;  the major one, of course, relating to the question of whether Aborigines hold inalienable title to the land.

The structure of European occupation in Australia rests upon the invalid foundation of "settlement of an ownerless land" -- the legal falsity of terra nullius.  The taking of Aboriginal land by conquest over the past 200 years makes a mockery of s.51(xxxi) of the Australian Constitution, which mandates the "acquisition of property" on "just terms".

The present Labor Government, encouraged by church leaders, adopted a resolution on 23 August 1988, which was supported by my party, acknowledging the prior occupation and settlement of Australia by the Aborigines and Torres Strait Islanders;  their dispossession and dispersal following acquisition of their lands by the British Crown;  and the denial of full citizenship rights prior to the 1967 referendum.

The Government remains firm, however, on the question of sovereignty.  The former Minister for Aboriginal Affairs, the Hon. Clyde Holding, said in 1983:

"... neither the grant of land rights, nor the recognition of Aboriginal prior occupation and ownership, in any way puts Australian sovereignty in question ... Sovereignty is vested in the Crown and Parliaments for a single people united in the Commonwealth." ⁽⁴⁾

The Australian Democrats support the notion that a treaty or compact negotiated with Aboriginal people shall have Constitutional authority in order that the principles agreed to are enshrined in the Australian Constitution so that future governments cannot repeal legislation resulting from the negotiation of a treaty without holding a referendum.

In speaking to the Report of the Standing Committee on Constitutional and Legal Affairs in 1983, however, my colleague, Senator Michael Macklin, Australian Democrat spokesperson on Aboriginal Affairs at that time, had this to say about the legal and constitutional problems presented by the signing of a treaty:

"The difficulty with which we are confronted, of course, is essentially the notion of sovereignty and a sovereign nation ... The application of a law within a territorial framework, as is applicable in the American situation, seems ... not to be beyond the possibilities in Australia.  Certainly we will have to change the structure of our law and our Constitution to be able to accommodate that ... The Australian Democrats believe that the Commonwealth has to accept the inalienable right of the Aboriginal people not only to maintain their traditional cultures, customs and life-style but also to govern, manage and determine their own lives in the future.  Essentially that might be seen as a definition in any reasonable sense of what sovereignty means in domestic law ... I believe we ought to establish within our own framework, traditions and history some way of dealing with this matter.  But I would lend my strong support to the notion of a compact between ourselves and the Aboriginal people so that we can put down for negotiation all those very large and complex problems that still remain between us as peoples.  If we are to do this I believe we have to acknowledge that the Aboriginal people never surrendered this land to the Europeans and the invasion that started in 1788 has not taken away the sovereignty of the Aboriginal people in relation to their own land". ⁽⁵⁾

An important question to be addressed is who will sign the treaty on behalf of the Aboriginal people.  When the proposed Aboriginal and Torres Strait Islander Commission comes into operation in 1989, one option would be for signatories to be chosen from the 12 commissioners who will be elected by councillors sitting on the 60 regional councils to be spread throughout Australia.  Each of these councils will comprise up to 20 councillors elected by members of their communities within their respective regions on the basis of one vote, one value.

An equally important factor which must be considered is the feeling within the community towards the treaty proposal.  A lot of fear and ignorance exists among non-Aboriginal Australians concerning precisely what the completion of such an agreement would mean for them.  Many people have the absurd notion that the government is planning to return the whole of Australia to the Aborigines.  However, as Charles Perkins assures us, Aboriginal people are not interested in laying claim to St. Paul's Cathedral or the MCG! ⁽⁶⁾  This is why the Democrats fully support the Government in its national media campaign to educate the community about Aboriginal issues, including the treaty proposal, in order to improve the attitude towards Aborigines of non-Aboriginal Australians.  I agree with the conclusion reached by the Senate Standing Committee on Legal and Constitutional Affairs and quoted by Judith Wright in her book, We Call for a Treaty. ⁽⁷⁾

"The attitudes of non-Aboriginal Australians towards Aboriginal and Torres Strait Islander people and vice versa lie at the heart of the situation and until they can be properly oriented a compact no matter what its form and content will at best only create superficial improvement".

CONCLUSION

Those in our society who are opposed to the signing of a treaty or compact between the Commonwealth Government and the Aboriginal people would do well to note the words of His Holiness Pope John Paul II in his address to Aboriginal and Torres Strait Islander people at Alice Springs during the Papal visit of 1986:

"Let it not be said that the fair and equitable recognition of Aboriginal rights to land is discrimination.  To call for the acknowledgement of the land rights of people who have never surrendered those rights is not discrimination.  Certainly what has been done cannot be undone.  But what cannot be done to remedy the deeds of yesterday must not be put off till tomorrow.

"The establishment of a new society for Aboriginal people cannot go forward without just and mutually recognised agreements with regard to these human problems, even though their causes lie in the past.  The greatest value to be achieved by such agreements, which must be implemented without causing new injustices, is respect for the dignity and growth of the human person ..." ⁽⁸⁾

---

NOTES

1.  McGuinness, P., The Australian Financial Review, 21 June 1988.

2.  See Harris, Stewart, It's Coming Yet ...:  an Aboriginal Treaty Within Australia Between Australians, Canberra, 1979.

3.  See Reynolds, Henry, The Law of the Land, Penguin, Ringwood, 1987.

4.  Holding, Clyde, Commonwealth of Australia Parliamentary Debates (Hansard), House of Representatives, 8 December 1983, pp. 3485-3490.

5.  Macklin, Michael, Commonwealth of Australia Parliamentary Debates (Hansard), Senate, 14 September 1983, pp. 691-693.

6.  Perkins, Charles, "Land Rights, Uluru (Ayers Rock) and the MCG", in Richard J. Wood (ed.), The Land Rights Debate:  selected documents, Policy Issues No. 1, Toowoomba, pp. 9-14.

7.  Wright, Judith, We Call for a Treaty, Collins/Fontana, Sydney, 1985, p. 287.

8.  His Holiness Pope John Paul II, address given at the meeting with Aboriginal and Torres Strait Islander people at Alice Springs on 29 November 1986.