Why Whites also need an Aboriginal Treaty

Roberta Sykes

Dr Roberta Sykes, a Harvard Graduate, is executive officer of Black Women's Action.

This article is, in part, a response to Geoffrey Blainey's.  Dr Sykes believes that much of the debate about justice for Aborigines has been distorted by misinformation, driven by sectional interests, and that if the majority of Australians understood the issues better they would support a treaty, not on grounds of altruism, but on those of self-interest.

THE recent and periodic immigration debate, with its focus on race, seems somehow to be an emotional partner to the occasional anti-Aboriginal outbursts we endure.  The year which held so much promise of hope for a reconciliation between white and black Australians, and for a treaty to safeguard that reconciliation into the future, seems to be running out of time.

At bottom, dissent regarding a treaty stems from a very vocal and sophisticated group of whites, among them mining magnates and investors, and rogue academics.  The vested interests of the former are obvious, although they are persuasive with their ''give Aborigines land rights and everyone will lose their jobs!'' approach.  These are the same people who alarmed white Australia with their dire predictions that the country would go to rack and ruin if Uluru (Ayers Rock) was returned to the traditional owners.

Since the hand-over, more tourists than ever have visited and enjoyed the area, under the watchful and protective eyes of the local elders.  Aboriginal control of the area will ensure its maintenance and continuity for perhaps another 40,000 years, a benefit for ''all'' Australians.  During this same period, white systems and culture seem destined to destroy much of the rest of the planet.

The understanding that large numbers of white Australians have of the historic conflict between Aborigines and whites is mostly superficial, minimal and abstract.  Estimates of black fatalities now number in the hundreds of thousands.  And, as with all other wars, it was and is a war over land.  It matters little whether the blacks were shot down, passively ate poisoned food left out for them, or died of syphilis after having been raped by whites.

Rogue historians would argue that invasion by outside forces was inevitable, that if the British had not expropriated the Aboriginal birthright, some other nation would have.  In terms of justice, however, this defence in a court of law would have us believe that rapists and murderers are justified, because if they hadn't committed the act someone else would have.

A flimsy argument is often postulated that Aborigines themselves arrived from elsewhere, and this, too, is supposed to justify the white invasion of 1788.  There is not one shred of evidence to support a theory of Aboriginal migration, and a great deal of evidence to the contrary.  All Aboriginal oral history and mythology point to the evolution of Aborigines right here.  Anthropological finds keep pushing back the date at which the alleged migration could have occurred -- it is now in excess of 50,000 years ago.

UNINFORMED MIDDLE GROUND

There are three main camps of whites -- those with understanding, empathy and support for the black position, those who oppose that position, and a large group on middle ground who struggle with the questions, many of whom as yet hold no firm opinion.  Successive governments have failed to provide this middle group with sufficient information to solve their dilemma.

Unbelievable though it may sound, many worry that government recognition of prior Aboriginal ownership would force them to return home.  They see their own position as invidious because many have been here so long and have such diverse ancestry that they really have no ''home'' apart from their security here.  For them, this makes recognition of the rights of Aborigines untenable.  This large group of people usually do not know any Aborigines personally.  If concern for their own welfare could be alleviated, they would be free to weigh up the moral question of justice for Aborigines.

These people are alert to the vested interests of mining and rural investors, but more susceptible to others who may appear to be on the middle ground.  Culture brokers, often xenophobes and academics, step in and, claiming to be unbiased, offer these people guidance in how to think, feel and act in this difficult situation.

The compensatory aspect of an Aboriginal treaty is often denounced as being discriminatory.  The principle of compensation for crime, car and industrial accidents, etc, is to assist victims, replace lost goods and try to recover their former lifestyles.  It was not established just for blacks, but in recognition of the right all people have to go about their lives unmolested.  Failure to redress this issue is discrimination.

WIDENING GAP

Meanwhile the social and economic gap between blacks and whites continues to widen.  Black poverty is a well-known fact.  Collective white Australian wealth was founded in 1788 through the expropriation of the continent, and built upon since by the import of animals which graze upon the land, and technology to exploit the resources of the land.

The source of contemporary white wealth is the land, and the land and its ensuing wealth has been handed down from generation to generation among the whites.  Blacks, due to this colonisation, have had only dispossession and poverty to hand down to each successive generation.

A treaty may or may not be the answer to this conflict.  Professor Blainey thinks that because a treaty may have been worth little 200 years ago, it won't work today.  If white commitment and dedication to justice, reconciliation and reparation can be measured by Blainey's, he may be right.

At best, Australia could negotiate a treaty that acknowledged former Aboriginal ownership, and the historic past, and sought an equitable solution based on justice.  Australia is being nudged in this direction by the Pope, the United Nations and many other organisations.  At worst, an excuse for a treaty, based on principles of more welfare and ''grants'', may mean a continuance of policies of the past which failed to bring dignity to either party.

Any treaty needs to make explicit where the national resources originally came from which enable such ''generosity''.  Ironically, blacks are the most intense critics of the white hand-out mentality.  Many governments have deluded themselves and voters by reasoning that increasing hand-outs should satisfy the Aboriginal passion for justice.

In either case, there is always a concern -- by the detractors -- about who is an Aborigine.  It's like saying there should not be equal employment strategies to end sexual discrimination against women -- because some men might dress up as women and capitalise upon it.

It is important now to move steadily ahead with a treaty, and sort out the peripheral concerns later.  The black community, operating from a position of power, could effectively deal with Aboriginal or non-Aboriginal individuals who might seek to seize personal advantage by exploiting newly negotiated resources.

There is no doubt in my mind where ''no treaty'' would lead us.  Even moderate blacks who publicly denounce Aboriginal-Libyan overtures, privately lament that a constant stream of new and assertive measures appears to be the only way Aborigines stay on the agenda.

An informed public would be more likely to support a treaty, not for any altruistic notions, but because it serves their own self-interest.  Scaremongers push the public to believe that land or funds flowing from a treaty will be shipped away to where no white can every gain access to it.  Such a view would be laughable if it weren't so widespread.

The truth is that the acknowledgment and restoration of Aboriginal rights would enable white society to work towards its own sense of dignity.  Of slavery it as said that ''the master can't dehumanise another human being without, in the process, dehumanising himself''.

As well, Australia can only be stimulated by and benefit from initiatives which would be undertaken by blacks in their new role of equal participants moving towards the shared challenge of the future.  A dream, perhaps, but with a treaty there is a chance.

Fallacies Weaken the Case for a Treaty

Geoffrey Blainey

Geoffrey Blainey, A.O., is Ernest Scott Professor of History at the University of Melbourne.

The debate over the proposed treaty exemplifies the tension between the competing goals of national unity and minority rights which is a central feature of contemporary Australian politics.  Mr Hawke will find it difficult to deliver a document which can satisfy the conflicting demands upon it, argues Geoffrey Blainey.

RELATIONS between Aborigines and other Australians are likely to remain a hot potato of Australian politics for the next 30 years, and the evidence suggests that Mr Hawke's offer to sign a treaty or grand document will make the potato hotter, rather than cooler.

In theory it is easy to bring together Aboriginal representatives and Commonwealth ministers, but it is not easy for the Aborigines to speak with one voice, and the Labor Party will certainly not speak with one voice once the negotiations for the treaty begin.  The Labor Party in each State differs strongly on the ideal treaty.  The powerful movement for Aboriginal land rights, after remarkable success, began to stumble in the mid-1980s simply because the Labor Government in Western Australia, along with Queensland and the Northern Territory, decided that it should not bear the burden of the promises made in the 1970s, mainly by people in the cities of the south-east corner.

It was Mr Hawke, who, feeling the political pressures from WA, did more than anybody to derail the hitherto strong movement for granting lands and other concessions to Aborigines.  Under pressure from his own Left he is returning again to this delicate issue.  Once negotiations on the treaty come down to the question of land rather than words, he will again feel the pressures from the big outer States which do not see why they should pay the price for the accusatory wave of guilt felt so strongly in distant cities.

CONTRASTING DEMANDS

To Mr Hawke and a wide range of black and white Australians, an Aboriginal treaty is seen as a healing medicine.  But an equally legitimate school of thought sees it as potentially a step toward converting Australia, both in the outback and the ethnic suburbs, into a nation of tribes.

The contrasting demands of national unity and minority rights and privileges are becoming the great umbrella issue of Australian politics.  In the emotional winds now blowing, it is a hard umbrella to unfurl, let alone hold.  In the end, Mr Hawke could be left with only the handle of the umbrella.  Given the expectations he has aroused amongst Aborigines, perhaps the handle is all that he himself can expect to hold.

Even if Mr Hawke triumphs, and finally signs a treaty that pleases him and most Aborigines, will the treaty last?  The Liberals have announced that they will tear it up.  If it's a treaty consisting of honeyed words and happy wishes, they will surely not tear it up.  If the treaty is wide in its repercussions, even the Labor Party in the year 2000 may decide to cancel it or revise it.  No government in a democracy can sign a treaty binding future generations of voters.  If the Aboriginal leaders of today are succeeded by a more militant group, the treaty will not survive.  The very concept of a treaty between a nation and a racial fragment of that nation is hazardous.

Once the Aborigines have been assumed to be a mini-nation for the purposes of negotiating a treaty they could well see themselves as entitled henceforth to view themselves as a continuing mini-nation with rights to call for periodic revisions to the treaty.

While the pitfalls of the proposed treaty are deep, powerful forces are pushing the Labor Government toward this experiment.

A special climate favours Aborigines in those educational circles central to and sympathetic to Labor.  We have gained a long overdue appreciation of the achievements and ingenuity of Aborigines when they occupied this continent.  We have a heightened awareness of racial politics.

Australia is also urged by the Third World and by the United Nations to give special aid to Aborigines -- a pressure increased by the Pope and the leaders of most of the mainstream churches in Australia.  Similar pressure comes from scores of Aboriginal leaders who are forceful and fluent on radio and television.  In the space of 15 years the Aboriginal crusade has gained political punch.  The conditions under which so many Aborigines live will, in effect, harden that punch.

The force of the arguments in favour of a treaty, land rights and special concessions for people of Aboriginal descent has been aided by a reluctance to oppose these claims.  The reluctance is aided legitimately by the view that the Aborigines have been shabbily treated in the past.  It is aided less legitimately by the widespread use of the ''racist'' tag against those who criticise the extent of grants to Aborigines.

The case for a treaty rests partly on the picture of Aborigines deliberately wiped out by the white man's guns and poisons.  True, they were often hunted.  True, the reprisals against them when they killed shepherds and draymen were ruthless.  Those episodes remain a scar on Australian history.  But the main cause of Aboriginal death after 1788 was smallpox, measles, influenza and diseases to which they had no immunity.  This tends to be overlooked.

ABORIGINES NOT UNIQUE

Likewise, the case for a treaty rests on the argument that Aborigines were almost alone among the people of the world in that they were conquered without the benefit of a peace treaty.  And yet conquest without the palliative of a treaty is not uncommon.  Even Aborigines themselves presumably conquered other tribes or annexed lands without signing some kind of treaty.

Again and again, in the dealings of Europeans with Europeans, the losers of a war have been forced to sign treaties in which they had scant say, except to provide a signature.  At the end of each world war, Germany accepted defeat but had no influence whatever in deciding the terms imposed on her, nor on the huge territory confiscated.

I do not dismiss the idea of canvassing an Aboriginal treaty.  But I doubt the wisdom of most reasons offered today in support of such a treaty.

Even if the British Government had tried to transact treaties with each Aboriginal tribe in, say, the period 1788 to 1858, the treaties would have been worth little.  The difficulties of language, let alone of understanding each other's organisation and culture, would have been acute.  And who could have enforced a treaty when the Government itself had little control over the outback and when Australia was still divided into hundreds of self-contained tribal areas?

The confrontation on Australian soil between whites and blacks was one of the most baffling in modern history.  Again and again representatives of the nation which had just invented the steam engine met people who could not boil water.  There was a deep gulf, not only in technology but in ways of viewing the natural world and organising and harnessing it.  Race relations are still suffering from the vastness of that original gulf.

The treaty also demands discussion of that long-evaded question:  who is an Aborigine?  There can be no treaty without defining whether a fraction of Aboriginal ancestry is sufficient to entitle people to special rights and compensation.  To define an Aborigine is to unlock a hidden cupboard of cant.  The present definition is primarily racial.  Future generations may well see an Aboriginal treaty, if based on the present definition, as a venture in racial discrimination by a politician who currently claims to detest such discrimination.

It is understandable that a generous treaty has become the great goal of Aboriginal politicians.  And yet there seems little hope of Mr Hawke delivering either the kind of treaty they want, or the kind which he seemed to promise when earlier this year he made his gracious but astonishing speech to the ranks of tribal elders.

Aborigines are Australian, too

Bob Liddle

Bob Liddle is a Northern Territory businessman who runs
his own resource consulting firm, R. Liddle & Associates.

Aborigines, themselves, are divided on the desirability of a treaty.  Bob Liddle sees it as indicative of the unproductive paternalism which pervades Aboriginal affairs and as depriving Aborigines of the right to full Australian citizenship.

AS Australia ends its Bicentennial year amid protests by some of its Aboriginal population, one proposal that has cropped up has been for a treaty or compact between the Government and its Aboriginal citizens that would recognise the Aborigines' prior ownership of the land.  Such a treaty, however, is inherently divisive and would undoubtedly create more problems than it should.  In particular it would perpetuate differences and increase resentment at a time when we should be seeking to weld a strong nation out of Australia's many ethnic and cultural components.

When it comes to policy, regret is pointless and atonement gives satisfaction only to the atoner -- not the one who may have been offended.  Similarly, a treaty with the Aboriginal people would be an example of the worst form of emotional paternalism, an attempt to turn back the clock, a desire to recognise in 1988 a wrong that was not perceived as a wrong in 1788.  This is not likely to serve Aboriginal interests.

The present national ferment about Aborigines and other minority groups seems to derive from two sources:  first, general Australian ignorance about history and the rest of the world;  second, an exaggerated paternalistic wish to ensure that every possible contingency is tied into some piece of legislation.  Thus we have today reached a point in Australia where it is not a joke to say that every committee is looking for its ideal member:  a black, handicapped, Greek-speaking, anti-nuclear, refugee lesbian from a single-parent family dedicated to preventing the logging of whales in rain forests.

Indeed, there is a cultural tendency in Australia to believe that nothing comparable has ever happened anywhere else.  Yet the history of the world is full of incidents that compare with Australia's treatment of Aborigines.  I believe that the current urgent desire to atone for European occupation of this country and the treatment of Aboriginal people is totally misguided.  The landing of the British on this soil 200 years ago this 18 January and their subsequent actions were in accord with international law and the accepted attitudes and practices of the time.  Indeed, in the context of the times, Captain Arthur Phillip's treatment of the Aborigines around the Botany Bay area was remarkable for its leniency and benevolence.

OFFENSIVE TO OTHERS

Apart from the dubious assumption that Aborigines can be addressed en masse -- anyone who understands Aborigines knows that Aborigines have a host of tribal and other associations that would have to be dealt with -- a treaty between the Government and Aborigines would be offensive and totally irrelevant to the millions of Australians whose families played no part in the European settlement.  I am not sure, for example, that Australians of Chinese, Greek, Italian, Vietnamese and dozens of other ethnic backgrounds would appreciate being included in the mass apology of a treaty.  Perhaps the Australian Government will then counter with a treaty between the Aborigines and only those Australians who feel guilty.

FULL CITIZENS

The point is that since 1967 we Aborigines have all been full Australians under the Constitution, and that is the way we should be regarded.  To single out Aborigines as a race apart by means of a treaty or compact is reminiscent of Fiji, South Africa, Malaysia, or any other country where measures have been taken to protect permanently the interests of one particular group.  The end result is smouldering resentment, which ultimately finds expression in incidents of racial conflagration, as the world's headlines all too sadly demonstrate day after day.

Of course, there is much that can be done to help Aborigines improve their lot.  Some Aboriginal values, attitudes and physical locations stand in the way of their success in the world;  the Pintupi people on the Northern Territory/ Western Australian border, for example, suffer from their total isolation from the education that might help raise their standard of living.  Other Aboriginal groups lack English skills or are hurt by plain poverty.  Any responsible government will take steps to relieve distress and assist people to play their full part in the affairs of the nation.  The way to do that, however, is by treating everyone as a full Australian -- not separating them into ethnic and racial categories.  We should be building on what we have in common, not emphasising our differences.

An example of a program that has backfired is the Land Rights Act in the Northern Territory, designed to improved relations between Aborigines and the rest of the community.  This woolley-minded paternalism has much to answer for.  Land is granted to appease the non-Aboriginal conscience in the large cities, but Aborigines are not allowed to use it freely because paternalists do not think the black man is sufficiently mature to behave responsibly.  For example, Aborigines are prohibited from selling, leasing or trading their land -- thus shut out from most of the activities that would make their land an economic asset.

On top of this, some Aborigines have used land rights as a lever in their effort to carve out an Aboriginal nation -- something that has never existed.  Land Rights and a treaty simply cannot create a nation out of a people who constitute but one per cent of Australia's population and are scattered about its vast continent.  From the other side, some non-Aborigines have used the record of land rights to suggest that avarice, bad faith and gullibility are the hallmarks of agreements with Aborigines and their advisers.  In the eyes of many Australians, therefore, as Aborigines have won more land, they have lost much good will.  It would be a tragedy were this source of racial disharmony to be enshrined and perpetuated by any sort of treaty.  Most likely, such a treaty would be used as the thin edge of the wedge to push for the forming of an Aboriginal nation.  If successful, any number of new issues would arise:

• Would the Aboriginal nation, with its capacity to act in relation to the Commonwealth, be able to act in relation to other states as well -- Libya for example?  Would it have rights and obligations under international law?
• Would it have standing in international organisations, the Warsaw Pact for example?
• What would the government of the Aboriginal nation be?
• What would happen to Australia's position of Australian sovereignty in matters such as resources, transport, communications and trade?

Despite these misgivings about a treaty, I am optimistic that the future of Aborigines will be bright once the taint of paternalism can be eradicated.  Some months ago the Economist described US policy toward its native peoples as ''helping those who want to join the mainstream society and building wigwams for those who don't''.  In Australia, younger people especially are drifting away from the wigwams, looking for a place in Australia's contemporary society.  They must be allowed to change and grow over time, just like any other people, so that they are not condemned to permanent dependence.  Many Aborigines are making a go of it in mainstream Australia.  They don't parade their Aboriginality, they just get on with living as Australians in today's world.

WELFARE SCRAP-HEAP

Yet they often come up against unnecessary obstacles.  Government policies over the past 20 years have priced Aborigines out of the job market.  The 1967 Aboriginal stockman's case that required equal pay for Aborigines ultimately made their employment unprofitable.  While this may have been a historic court event it left thousands of Aborigines out of work and placed them on the welfare scrap-heap.

Indeed, $2 billion has been spent on Aboriginal welfare over the past 10 years.  Much of it has been wasted on an unnecessary bureaucracy and projects that were doomed to fail from the outset.  The Department of Aboriginal Affairs, to name but one, should be abolished and direct funding provided to local Aboriginal Councils in rural communities.  Greater opportunities should be made for Aborigines to enter the private sector, and the disincentives for them to make their own way must be removed.  In this way Aborigines would not only benefit themselves, but their participation in the economy would make for a more productive Australia.

Aborigines played a part in developing Australia Aboriginal troopers and soldiers defended it.  They want to share in Australia's future -- not contest it.

Why a Treaty?

Galarrwuy Yunupingu

Galarrwuy Yunupingu, AM, is Chairman of the Northern Lands Council.

It was Galarrwuy Yunupingu who presented Prime Minister Hawke with the Barunga Statement of Aboriginal claims in June 1988.  He is Northern Australia's most prominent Aborigine and will almost certainly be one of the main architects of the treaty promised by the Federal Government.

ABORIGINAL people are estimated by non-Aboriginal scientists to have lived in this country for up to 50,000 years.  That makes us now the oldest living culture in the world, and without question, the original owners and occupiers of Australia.

It also gives us title to land, which by our definition means responsibilities which confer rights over our country.  Those responsibilities, and those rights, have never been legally extinguished.

Many of our people have been dispossessed, to be sure.  But that alienation of land has never had any legal basis.  It is outright theft, whichever way you look at it.

The supposed basis of non-Aboriginal occupation of our lands is the doctrine of terra nullius, which holds that the whole of Australia was, in 1788, vacant land.  Since it had already been occupied for hundreds of generations by people like my ancestors -- and there is archaeological proof of that, if it is needed -- the argument that it was ''vacant'' is plainly nonsense.

According to world legal opinion, terra nullius, too, is nonsense.  That means that the non-Aboriginal occupation of Australia remains illegal.  And that is something we need to set right, as Australians together, which is what a treaty is partly about.  But to do that, any treaty must also recognise that Aboriginal and Islander people, as the prior owners and occupiers of this country, have rights.  These rights are supported by international covenants and conventions, to which Australia is both a contributor and a signatory.  Yet nowhere in Australia's Constitution do we rate a mention.  Nowhere in the body of Australian law is there any appropriate recognition of us and our long association with the land.

ALIENATION

As a former British colony, Australia is in a unique position.  It is the only former colony which has neither made a treaty with the sovereign owners of the country nor granted them independence.  It is as if legally we did not exist.  The occupation of our lands and our alienation from it has caused great suffering.  Many of our people have been cut off from their land and their responsibilities.  Languages and cultures have been wiped out as the fences went up around land and our people were killed or herded into resettlement camps and communities.  Across Australia today, Aboriginal people are suffering the consequences of this alienation.

And there has been no real attempt at redress for what they have lost, for what we collectively have lost.  There has only been limited recognition of our relationship with the land.

RESPONSIBILITY

While I would in no way suggest that today's Australians are responsible for the sins of the past, I would state strongly that they have a responsibility to do something about today's injustices.  Australia's non-Aboriginal citizens have inherited the benefits of genocide, of alienation and appropriation of land.

There has been a total failure to recognise that we are unlike the other peoples who have come to live in Australia as willing or unwilling migrants bringing their own cultures and ways.  Our culture and our ways have always been here, in this land, our mother.  Australia can no longer afford to ignore this reality and pretend it is otherwise.

The problems that have arisen are largely due to the fact that we have not been involved in making decisions about where we fit in this new Australia.  We have no status;  other people have always felt free to make decisions about our present and our future without consulting us.  We feel there is no respect for who we are and a conscious evasion of what has happened to us over the past 200 years and is still happening to some of us today.

This has created tensions and division.  We don't like that any more than anyone else does.  We believe that if justice is done, we can all remove this tension and division.

This places a heavy responsibility on us, to be sure.  We have to talk within our communities and organisations to make sure that what goes into any treaty is what everyone, every Aboriginal person, can agree with.  That means we all have to be thinking about it and talking about it.

But, after all, consultation and consensus decision-making is a process we invented, so it's not as if this is going to be a new process for us.  Every issue we face is discussed exhaustively until we come to a consensus about our position.

But it places responsibilities on non-Aboriginal Australia, too.  If Australia is ready to talk about a treaty or an agreement, it has to be also ready to talk on our terms and to understand that we need to talk about it in our own way.  None of us can afford a repeat of the sorry history of the past 200 years.

If people can accept this, we will already be well on the way to achieving the kind of good-will any treaty or agreement should be about.

What we want from a treaty is the creation of a just and mature society which black and white Australians can enjoy together.  A treaty which recognises our rights and our status will provide the basis for building a society in which people live in mutual respect.  To those people who say they support the concept of one Australia, I can only say that I agree -- there should be one Australia and we should be part of it.  But our part should be on our terms.

I don't believe the creation of a united society means that everyone should be the same.  A mature, just and united society is one which recognises and celebrates cultural diversity, rather than one which forces uniformity.

A treaty will wipe out injustice and redress the wrongs of today, which can be traced to the wrongs of the past.  It will put us on the right track for the future.  It will create an Australia we can all share in pride.  It will mean, in 2088 and 2188 and all the other '88s, ALL Australians celebrating their achievement.

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⁾

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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.

Treaty is a Recipe for Separatism

John Howard

The Hon. John Howard, MP, is Leader of the Federal Opposition.

When the proposal of a treaty was put forward by the Prime Minister in June 1988, Mr Howard rejected it out of hand, arguing that a treaty could only divide, not unite, black and white Australians.

THE Liberal and National Parties remain committed to achieving policies which bring Aboriginal people into the mainstream of Australian society and give them equal opportunity to share fully in a common future with all other Australians.

Consequently, we are utterly opposed to the idea of an Aboriginal treaty, partly because it will do nothing to assist in these aims.  It is an absurd proposition that a nation should make a treaty with some of its own citizens.  It also denies the fact that Aboriginal people have full citizenship rights now.

The whole idea of a treaty makes nonsense of the statement made by the Prime Minister on Australia Day that there can be no hierarchy of descent in Australia and that commitment to Australia is everything.  The Prime Minister at that time rejected any policy based on racial difference, and we do the same.

In proposing a treaty the Hawke Government has set itself on a path of creating expectations amongst Aborigines that such a treaty would facilitate the provision of national land rights and enable claims to be made for monetary compensation based on prior ownership of land and past injustices.

This has certainly been the experience overseas.

NEW ZEALAND

In New Zealand enormous repercussions are now being discovered in relation to the Treaty of Waitangi signed between representatives of the Maori peoples and Queen Victoria in 1840.  Because of a 1987 Act by the New Zealand Parliament, the Treaty has become a part of the New Zealand legal framework.  The Waitangi Tribunal, which advises the New Zealand Government on land claims made by Maori groups, recently approved and recommended to the Government a claim by the Mariwhenua people, a group of five Maori tribes, for all the fishing rights in Northland on the North Island of New Zealand.  Further Maori claims for land and compensation are currently being considered by the Government.

The New Zealand Government has also been prevented from transferring Crown land to its new State-owned enterprises under the State-owned Enterprises Act.  The Maori Council brought an action in the New Zealand Court of Appeal to prevent Crown land being transferred to the new enterprises on the grounds that it would no longer be subject to claim by Maori groups.  The action was upheld and the implications for the rest of New Zealand law are likely to be great.  Do we really need such problems in Australia?

COMPENSATION AND LAND RIGHTS

A treaty between Australian Aborigines and other Australians must inevitably lead to claims for national land rights and massive compensation.  Otherwise, what is the point of such a divisive document?  In the past few months a number of Aboriginal groups have done preliminary work on what they think a treaty should contain and they now have high expectations that they will be given enormous chunks of Australia.

A draft treaty has been prepared for the National Coalition of Aboriginal Organisations which makes outrageous claims concerning the need for annual compensation for loss of Aboriginal lands to the tune of $1 billion, initially.

Another group of Aborigines who met the Prime Minister at Barunga in June this year asked for "compensation for the loss of use of our lands" and "a national system of land rights".  This is the basis of the treaty that these people want.

But what will be the basis of other treaties?  Any group may come up with a treaty and raise their own agenda of issues.  It is a recipe for disaster.  The treaty requested for consideration by the National Coalition of Aboriginal Organisations was commented on favourably by a person who is now an advisor to Mr Hand.  He said the treaty was "philosophically spot on".  But where will other treaty documents come from?  Indeed there are already indications that Aboriginal people themselves have doubts about the whole concept of a treaty.

Which group of Aborigines will want the treaty to be negotiated next and who will they wish it to be negotiated with?  For example, I recently received an invitation to attend a meeting that was designed to be the first stage of a proposed treaty between the Torres Strait Islanders Corporation and the Aboriginal people of South-East Queensland.  Are there to be further treaties between the Torres Strait Islanders and other Aboriginal groups or are there to be treaties between the Aborigines of the North and the Aborigines of the South?  We are all Australians and there can be no thought given to dividing the nation in this way.

AREAS OF REAL NEED

Aboriginal people already have the right to manage much of their own land and programs.  They have already indicated that this is where priority should be.  These priorities will not be met by the devotion of time and effort to such treaties.

The breaking-away from dependence can only come from closer co-operation with other Australians and by Aboriginal people taking responsibility themselves, not by creating a new growth industry for the Aboriginal bureaucracy.

Protracted negotiations over a treaty will only divert attention from the real issues and problems faced by Aboriginal people.  These areas of need are clearly and demonstrably expressed by Aboriginal people themselves whenever I meet with them.  They are also communicated clearly to my Shadow Minister for Aboriginal Affairs, Chris Miles.  These areas are housing, health and welfare and the provision of assistance in maintaining cultural and religious life.

Funds should not be wasted on treaty negotiations when these pressing social and economic problems must be addressed.  Our policies will address these matters, especially through the removal of the duplication of services that has bedevilled Aboriginal programs.

We will move the responsibility for programs closer to the Aboriginal people themselves by giving self-management and self-control over expenditure wherever possible and where control is exercised by Canberra, where appropriate moving it to the State or local level.

We will create more jobs in Aboriginal communities by assisting the development of Aboriginal enterprises and investment.  We will do this by supporting the Aboriginal Employment Development Policy and create employment opportunities in national parks and by revitalising the Aboriginal Development Commission or its equivalent.  We welcome the increased expenditure on Aboriginal employment in the last budget but we believe that better targeting and administration is necessary to make this employment expenditure more effective.

We will encourage post-school job training through a variety of means including the Community Development Employment Program which has proved so successful in Aboriginal communities.  Effective programs and policies are the way to improve the situation of Aborigines, not the useless and divisive notion of a treaty.

ONE AUSTRALIA

While a treaty may give some people a warm inner glow of satisfaction, it cannot and will not result in the development of compassionate and sensible policies so desperately needed to overcome the situation faced by many Aboriginal people.  On a recent visit to Alice Springs I met the Chairman of the Central Lands Council, Wenten Rabuntja.  In the course of our conversation he said that "we are all one mob but some of us have bigger problems than others".  This, to me, epitomises my ideal of One Australia and the way that we should work together to overcome areas of real disadvantage and not focus on the things that divide us, separate us and lead to a lack of understanding.

I regard a treaty as a recipe for separatism.  I believe that those Aboriginal people who have served in the Australian Armed forces are proud of their achievements and would be insulted by the notion of having to turn around, like an alien people, and sign a treaty with their former comrades.

As I do not believe that a treaty is something that would be widely accepted I have no great fears that it will continue to be an issue of debate unless the Hawke Government decides for political reasons to continue with it.  I hope this will not be the case as it can be to no Australian's advantage.

A Time for Reconciliation

Bob Hawke

The Hon. R.J.L. Hawke, AC, MP is Prime Minister of Australia.

The Prime Minister here sets out the thinking that underlies his support for a treaty or compact with Aboriginal Australians, outlines the broad scope of issues a treaty will address and responds to some of the criticisms made of the proposal.

IN 1988 Australians celebrated the 200th anniversary of European settlement of this continent.  As well as building our pride in the achievements of the last two centuries, those celebrations have made us keenly aware of the Aboriginal people, who had settled this land for more than 40,000 years before the arrival of the First Fleet.

Now is an appropriate time to consider how we can enter our third century with a fairer basis for the relationship between Aboriginal and non-Aboriginal Australians.

It is not too broad a generalisation to say that up until relatively recently, many of those concerned with Aboriginal issues believed in what might be called "technical" remedies to alleviate the manifest disadvantage of Aborigines in Australia.  That is, it was believed Aboriginal needs could be met through physical improvements such as housing, sanitation and health services.  Such measures remain essential;  my Government is proud of its record of increasing real funding for Aboriginal advancement programs by more than 80 per cent since we came to office.

RECOGNITION OF ABORIGINAL CULTURE

But physical remedies for the physical needs of the Aboriginal people should also be accompanied by proper recognition of the Aboriginal cultural tradition and history.  There is developing a broader acceptance of the need to address the facts of the prior Aboriginal occupation of Australia and the destructive effects of European settlement on Aboriginal society, customs and dignity.

The Government believes it is not sufficient only to provide equal opportunity and access to comparable physical facilities.

The harsh truth of European settlement in Australia is that it took place despite Aboriginal uprisings and bloody repressions, that Aboriginal culture was deliberately destroyed and the Aboriginal identity subjugated, that Aborigines were subject to apartheid-like pass-laws.  With the publication of works by Aboriginal authors, such as Sally Morgan's My Place, we are vividly reminded of that which some would gladly, but which we must never, forget -- that until very recent times it was common practice forcibly to separate Aboriginal children from their parents.

Aboriginal and Torres Strait Islander Australians have suffered, and continue to suffer, injustice, and in the Australian experience it is injustice of a unique sort.  It demands a unique remedy.

RECONCILIATION

The Government, as the elected representatives of the Australian people, must express its utmost determination to promote reconciliation within our community.  The Government is committed to a real and lasting reconciliation, achieved through full consultation and honest negotiation between Aboriginal and non-Aboriginal citizens of this nation, leading to an agreement with the Aboriginal people -- a treaty, a compact, call it what you will.  Without this overall approach, without a proper settlement and proper recognition, there can be no real lasting improvement for the Aboriginal and Islander people.

A treaty between the Aboriginal people, as owners of this land for tens of thousands of years, and the Australian Government, could address the fundamental issues and be an umbrella document providing direction and perspective to all areas of policy, including land rights, self-management, customary laws and recognition of Aboriginal culture and religion.  Programs to meet the physical needs of the Aboriginal people, to which I referred earlier, would not lose their priority;  nor would the objectives of accountability and efficiency be reduced in importance.

As long ago as 1975 the Senate adopted a motion which recognised that Aborigines and Torres Strait Islanders were in possession of Australia before 1788 and urged the Australian Government to compensate Aborigines for the dispossession.  In 1979 the Aboriginal Treaty Committee, chaired by Dr H.C. Coombs, was formed to promote public support for a treaty which might be included in the Australian Constitution.

So the idea of a treaty or compact is not new.  When I met in June with Aboriginal leaders at Barunga in Central Australia we agreed to negotiate a treaty through a process of consultation.

TIMETABLE

We laid down at Barunga a timetable for this negotiation.  First, the Aboriginal people are to decide what it is that they wish to see in the treaty.  To this end a great deal of consultation will be required which is to be the responsibility of a group of seven representative Aboriginal leaders and which could culminate in an Australia-wide convention.  In the second stage the Government will consider the outcome of these consultations and any necessary negotiation would follow.  Finally, we set ourselves the target of concluding these processes within the life of the current Parliament.

Since Barunga, the Government has provided assistance for initial Aboriginal consultations to take place, and the Minister for Aboriginal Affairs, Mr Hand, and I have held a number of fruitful discussions with Aboriginal communities and organisations.

Given the history of the concept, a treaty must contain these main elements:  an acknowledgement of the historical facts of European occupation of Australia including the fact of prior ownership by Aboriginal people;  an affirmation of the value of Aboriginal culture and customs and a commitment to their protection;  and, perhaps most difficult to resolve, it must take us further in reconciling the special relationship of Aborigines to their land with the reality of European settlement in Australia for 200 years.

At the end of the process of negotiation the treaty must be accepted as a valued and significant statement by all Australians.  It must be, and it must be seen to be, a reciprocal statement of obligation and reconciliation between the first occupants of Australia and those who have arrived since 1788.  On this basis, Aboriginal people must be sure that they can sign the treaty and accept and live with its contents -- that they will at its conclusion, have at last a secure foundation for living in modern Australia in peace and with equal standing.

Even though these treaty consultations are in their infancy, there have been those who refuse even to contemplate such an idea.  It has been written off as a means of entrenching division in the community -- of creating a nation within a nation.  That is nonsense.  The treaty will be negotiated by people who share the one nation and the one future -- it will be a treaty between Australians and for Australians.  It will be a joint document, a national declaration of shared principles and common commitments.  The treaty is to end division, not create it.  It can never be divisive to end injustice.

A treaty would not, as some at one extreme fear, sign away the Government's responsibilities, nor, at the other extreme, be an empty exercise and an excuse for inaction.  It could be, rather, a formal recognition of the facts of human settlement of this continent so as to safeguard the dignity and position of Aboriginal people as the first settlers of Australia.

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

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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.

Protection racket lingers on

Those arguing for strategic trade theory are -- like all protectionists simply seeking to avoid competition, writes Richard Wood.

BILL WEEKES was correct when he wrote in The Age on Monday that "the protection debate is not over".  But the reason that protectionist pressures will continue derives not from any new trade theory but from the inescapable fact that there will always be some who seek to avoid competition rather than to meet it.

Fortunately for the consumer and for employment, in Australia most old protectionists are now acknowledging the bipartisan acceptance that protection is not the way to go.  This was vividly illustrated when the new president of the Textile, Clothing and Footwear Council made it clear on Sunday that the future of the industry now lies in the development of exports.

The new trade theory -- the so-called strategic trade theory -- is based on the notion that government intervention in the operation of markets may produce benefits for the community which would more than outweigh the costs of such intervention, both to industries that are not assisted and to consumers.  Its basis is that some industries can earn higher than normal returns because economies of scale exist when they increase production.  In such circumstances, if government were to assist such industries to increase their output, the country could benefit through the establishment of a monopolistic position in the market for the industries' products.

There is, however, nothing particularly novel about trying to establish a monopoly position where economies of scale exist.  The problem is that there are severe limits to the application of the theory on a country basis.  Australia is a relatively small player in international trade and it would be a very risky undertaking to try to expand manufacturing, to the point of trying to establish a dominant position in international markets, in the sort of industries usually nominated for government assistance.  We would be competing against the same industries in other countries that would also have the benefit of economies of scale.

The main populariser of strategic trade theory, Dr Paul Krugman, has readily acknowledged the practical problems with it.  In a 1987 article he stated:  "It is possible, then, both to believe that comparative advantage is an incomplete model of trade and to believe that free trade is nevertheless the right policy.  In fact this is the position taken by most of the new trade theorists themselves."

Contrary to the suggestion by Mr Weekes, there is no contradiction between obtaining increasing returns to scale and the "law" of diminishing returns.  In fact, the two principles deal with fundamentally different issues.  Thus, the law of diminishing returns simply states that, if you increase the quantity of one input of production but hold all other input quantities constant, the quantity of additional output will progressively diminish.  The principle of economies of scale, on the other hand, refers to the situation where all inputs are increased simultaneously by the same percentage but the quantity of output increases by more.

Finally, it is, of course, erroneous to suggest that the major reason for high unemployment is "the erosion of our domestic industrial base by imports, reflecting government policies over the past 20 years".

The reduction in protection has been more than offset by the depreciation in the (real) exchange rate.  As a result, the capacity of manufacturers to compete has actually been increasing.  The decline in manufacturing employment reflects structural changes in consumer spending and in the efficiency of manufacturing industry.  In developed economies the main source of jobs growth now comes from the service industries, not from manufacturing.

The old protectionists will need to do a lot better if they are to reverse the tide which is now running fast against them in Australia.

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Australia's Heavy Capital Gains and Wealth Taxes

by Terry McCrann

Responding to criticism by the Minister for Finance, Senator Walsh, Terry McCrann sets out his reasoning and evidence for the claim that Australia's capital gains and wealth taxes are among the most severe in the industrialised world.  This article is based on two columns which appeared in the Melbourne Age on June 19 and June 20 (1986).

SENATOR Walsh took me to task, uncharacteristically gently, for referring to the Government's capital gains tax as the most punitive in the world.  While I concede this was a touch exaggerated, Australia certainly has one of the most punitive taxes.  Further, we appear to have among the highest levels of "wealth" taxes among developed industrial countries, with many ordinary wage and salary earners each year having to pay $1,000 or more -- and rising rapidly -- hi these forms of tax.

According to Senator Walsh, the key point is that whereas most OECD countries levied capital gains taxes at a rate around 30 per cent, they did so on nominal gains (with the exception of Britain).  Thus, while our all-new local capital gains tax would be levied at the taxpayers' normal marginal income tax rate -- which in most cases would be either 47 per cent or 61 per cent, maybe dropping back to a maximum 50 per cent next year -- only real gains were to be taxed down under.  Obviously, if a realised capital "gain" was entirely due to inflation, no tax would be payable in Australia in contrast to some tax paid in most of those other OECD countries.  Conclusion:  our tax was less punitive.

Senator Walsh makes this point as follows:  if an asset was bought for $100,000 and both "the market price of the asset (sic:  I suggest he meant to say, the annual increase in the market price of the asset) and the inflation rate remained constant at five per cent for 14 years and the asset was then sold," the tax levied in Australia would be zero as against perhaps $30,000 under the common OECD-type tax.

The good Senator was kind enough to concede that if one made different assumptions, such as the particular asset's value rising at a faster pace than inflation, then the numbers would not be so dramatically favourable to the Australian tax.

So the same $100,000 asset held for 14 years with five per cent annual inflation but a 10 per cent compound increase in its value -- assumptions he stressed were "highly unlikely" -- the typical OECD capital gains tax would take just under $90,000 with the down-under model claiming just under $80,000.

His bottom line was that "with any ratio of inflation to asset value increase less than the 1:2 ratio which is cited in that hypothetical example, the Australian tax would be lower than under the common type of capital gains taxes which prevail in the OECD."

Unfortunately, this is barely half the story.

There are less salubrious features of our new tax.  Two in particular.  The first is that our tax bears far more harshly than the common OECD tax on short-term capital gains, where inflation is irrelevant.  A common example is where an investor buys $100,000 worth of shares, the market booms, and he sells them for $200,000 one year and one day later.  Assume a 10 per cent inflation rate and the investor having other income amounting to the mammoth sum of $35,000.  That investor will pay tax of 61 per cent (maybe 50 per cent after next year) of $90,000.  That is equal to $54,900 (maybe $45,000 if the rates are cut) compared with $30,000 under those far tougher common OECD capital gains taxes.

And why did I say he sold the shares one year and one day after acquiring them?  Because that got him into the "softer" version of Senator Walsh's range of capital gains taxes.  The Government plans to leave in place the existing provisions of the Income Tax Act which tax as ordinary income any gains, indeed any nominal gains, on the sale of an asset within 12 months of acquisition.

Now Senator Walsh might argue that this is an income tax and not a capital gains tax.  Others might take a different view and even chance their arm that this is the most punitive capital gains tax in the world -- without fully knowing the tax systems of Gabon, Gambia, Guinea et al.

If my mythical investor had sold after 364 days, he would not have even picked up Senator Walsh's "generous" allowance for inflation.  He would have paid 61 per cent of the full $100,000 (ditto as before, maybe 50 per cent sometime in the future) -- or just about exactly double the amount levied under those terribly harsh taxes common in most other OECD countries.

The second point is that the Government in its generosity will allow realised capital losses to be offset against capital gains to reduce any tax liability.  This, of course, applies to most capital gains taxes in the OECD and, with a moment's thought, is self-evidently the only equitable thing to do.

But, in the case of our overly-generous tax, only realised nominal losses will be allowed to be offset, not as one might have expected realised real losses.  Assuming continuing inflation it will be almost impossible for investors to incur nominal losses -- except on assets held for short periods where inflation has not had a chance to work its miracles.  Whoopee!

Consider an example where an investor buys one parcel of shares for $100,000 and an investment house also for $100,000.  Over 10 years (with aggregate 100 per cent inflation) the house appreciates in value to $300,000 while the shares languish at that original $100,000 -- a not unlikely prospect to anyone who lived through the early 1970s.  Under Senator Walsh's tax the after-inflation profit on the house is $100,000 and thus $61,000 of tax is payable.  No offset is allowed for the real loss on the other parcel because there is no actual nominal dollar loss.

But consider what happened to that investor's investment portfolio -- the combination of the house and the shares.  The investor started with a $200,000 investment portfolio.  After 10 years the inflated value of his portfolio was then $400,000 which is exactly what he realised on sale.  He may have made a real profit of $100,000 on the house, but in real terms he lost $100,000 on the shares.  In short, he did not make a penny of real profit on the portfolio taken as a whole.  Yet he is still up for $61,000 tax.

Wealth Taxes

The lunatic, and not-so-lunatic, left -- and various economists, academic and otherwise -- clamour for a wealth tax in this country on the grounds of tax "rationality", economic "efficiency" and "equity".

It is undeniably true that one would search in vain through the tax laws for any imposition of a "wealth tax", or even its less emotive title, "net worth tax".  But that, of course, proves nothing, as a thorn by any other name would still cause pain.  In truth, we do have "wealth taxes" -- at least three that I can think of without too much effort.  And, what is more, they are unfair in their impact as they are levied on gross assets without any deduction for liabilities as against the conventional wealth or net worth tax, which is levied on net assets -- the total value of the taxpayer's assets at a particular point of time less liabilities outstanding.

Furthermore, the down-under wealth taxes are levied almost exclusively on one particular form of asset or wealth which, to use one of those awful phrases I detest from the tax "reformers", renders them horizontally inequitable.  That asset is property.

Various disguised wealth taxes are state property taxes, council rates and Melbourne Metropolitan Board of Works or other water rates.  My comments apply to the Victorian situation and especially to the people who live in the Melbourne metropolitan area, but I presume the position is not significantly different elsewhere in Australia.  Thus, just about anyone who owns a house in Australia -- even just the one family home -- is paying at least one, most likely two and possibly three of these disguised wealth taxes.

And in the main they are paying those wealth taxes out of after-tax income as -- income-earning properties aside -- they are not deductible against federal income tax.  Indeed, they might be paying those wealth taxes even though in the strict sense they don't actually own any property at all, if they have just started paying off their house bought with borrowed money.

Before explaining this, it is worth emphasising that rates and state land taxes are very definitely a form of "wealth tax" -- or worth, or asset, or capital tax, whatever particular name is used.  They are levied either entirely or almost entirely on the value of the asset, in this case property or land.  They are not levied on income or capital gain or the like, simply on the value of assets.  The fact that it is only one asset -- land -- is, apart from the tax equity questions, simply irrelevant.

It might be argued that water and council rates are not really a tax but a fee for service -- garbage collection, provision of water, etc -- and therefore equivalent to any other expenditures people make, such as for petrol or food.

One response to this is that all taxation is one way or another a "fee for service" -- the services being defence, schools, hospitals and so on to even include social welfare which, it might be argued, makes for a less unpleasant environment.

More importantly, though, these rates are less and less related to the cost of provision of the service -- and are more and more simply a means of raising revenue.  The added costs of collecting one garbage can from a house on a hectare in Toorak compared to a small weatherboard in Williamstown does not justify the Toorak resident paying several thousand dollars for the "service" as against a few hundred for the Williamstowner.

Even accepting in part the fee-for-service argument, one might note that the taxes are levied only on people owning an asset, to wit, the land.  They are not levied on users who do not own land.  Quite clearly, the money raised by council and water rates is nothing less than a direct tax on "wealth".

And we now find that even people with just one piece of land -- the family home -- in suburbs a long way from a hectare in Toorak are paying the state land tax.  Under the previous Liberal Government (and still so in most other States) the family home was generally exempted from land tax and you had to own at least two properties to be assessed for the tax.  This is no longer so and, although there is an initial exemption threshold, people owning quite modest homes which are their only property asset are paying $60 to $100 a year in property tax.  And that is the amount this year.  The way the tax is structured it will almost certainly rise exponentially as the land value increases at a faster pace than the exemption threshold.

Unless significantly amended, it will mean that ordinary one-home-owning wage and salary earners (and those not even earning) could be paying $500 or more in this disguised but very real wealth tax hi the not-too-distant future.

On rates, it is not uncommon for people with ordinary blocks to be paying $600 or more to both the local council and the Board of Works.  Add in the land tax and many ordinary Victorians are now paying $1,200 to $1,500 in these disguised wealth taxes.

And they have to find that money out of after-tax income.  If their wage/salary is around $20,000 they have to apportion around $2,500 for their "wealth" tax.  If they are really rich and earning about $35,000, they have to set aside $3,000 or more.

To emphasise, for many Victorians 10 per cent or more of their pre-tax income is now being paid in these disguised wealth taxes.  Those "wealthy" citizens have to pay those taxes whether or not they actually "own" the family home in the true sense.  They may pay up to $1,000 a year in "wealth" taxes on an $80,000 home even though they have a $60,000 mortgage and thus only $20,000 of equity in the property.

That alone suggests that our disguised wealth taxes are among the most punitive in the world, but the international comparisons, such as they are, provide further evidence.  According to the Chart, the share of government revenue from taxes on wealth in Australia is well above the OECD average and higher than in 16 of the 22 OECD member countries.

Wealth Taxes

Relative size of taxes on wealth in OECD countries (1982)

Source:  Reform of the Australian Tax System, draft white paper, AGPS, June 1985