All of a sudden [Australia’s] conservative coalition government is welcoming discussion about something we have demanded for decades, something Prime Minister Bob Hawke promised to deliver by 1990, and a proposal the current Labor opposition has labelled “stupid”.
While Herald Sun columnist Andrew Bolt claims treaties will cause “racial division”, Indigenous Affairs Minister Nigel Scullion says they are “agreements between equals” and considers this to be one of the issues Abbott’s Indigenous Advisory Council (IAC) should be looking at.
However, many would dispute whether a handpicked government advisory body has the mandate to control such a debate. The nature of any treaty process must be owned by Aboriginal people on the ground.
Before going any deeper, it’s probably a good idea to take a step back and have a look at what exactly is our status as First Nations peoples.
Kombumerri philosopher Mary Graham says Aboriginal people “are reduced to negotiating on a very unequal basis to see what concessions can be wrung from a process, the terms of which have usually been pre-determined by colonial governments”.
“We have always been treated as a client of the welfare state.”
University of South Australia academic Dr Irene Watson (Tanganekald/Meintank) believes it is imperative for us to “decolonize the way we think about who we are today”. “We’re largely dealt with as one homogenous group that is being harvested for the colonial project,” says Dr Watson, an advocate for Indigenous peoples in international law. “It’s not going to work if we continue along that line, because it very much goes against who we are as First Nations peoples.”
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly in 2007.
Although the UNDRIP is not a legally binding agreement under international law, the Declaration is an indication of accepted international norms in terms of the rights and status of Indigenous peoples. Article three of the Declaration states that we have the right to determine our own political status.
According to the Unrepresented Nations and Peoples Organization (UNPO), this means Indigenous peoples have a choice “ranging from political independence through to full integration within a state”. Does this mean each Aboriginal nation can decide to establish themselves as states? When it comes to qualifying as states in international law, contenders must fulfil the following criteria:
• A permanent population;
• A defined territory;
• Government; and
• Capacity to enter into relations with other states
Perhaps the notion of measuring ourselves as First Nations peoples up against states may seem rather abstract. But disputes over this question are becoming increasingly relevant in the international arena. Threats of a major boycott by Indigenous delegates have emerged in the run up to the 2014 UN World Conference on Indigenous Peoples. Representatives from the International Indian Treaty Council, the Continental Network of Indigenous Women in the Americas and the National Congress of American Indians are insisting that Indigenous peoples should be permitted to participate on a full and equal basis with states.
Those in opposition to this proposal including China, Russia and India, argue that the conference should be run by UN state members alone. Mohawk man Kenneth Deer, representing the Oneida Nation Council of Chiefs, claims that these states “view this as an incursion of nongovernmental organizations into the UN” but that many Indigenous representatives themselves “are heads of governments of Indigenous nations”.
It would be quite easy to argue that prior to colonisation our nations satisfied all four criteria with regards to whether we qualified as states. Hundreds of autonomous and interdependent nations covered the continent now known as ‘Australia’. Due to the destructive process of colonisation, the sovereignty of our nations was ignored and denied, and our governance structures undermined. The British Empire did not enter into treaties with the first peoples of this continent. Australia remains the only former British colony yet to do so.
Our nations still have defined territories and permanent populations. However, as a result of genocide, dispossession and assimilation, our systems of governance have been dismantled while our capacities to enter into relations with other states have been left in tatters. These are factors that must be taken into account. Reconstruction and decolonisation are routes that Indigenous peoples across the globe have had to take post-invasion. It seems rebuilding our governance structures would be vital to any kind of treaty settlement process.
Although far from perfect, dealings between other Indigenous peoples and the colonial powers occupying their lands are largely based on nation to nation, government to government relationships. Native American academic Dr Shaawano Uran defines sovereignty as “a type of political power, and it is exercised through some form of government”.
“American Indian treaties are important to understanding sovereignty. Treaties are agreements made between sovereign entities – usually called nations. The US has signed several hundred treaties with Indigenous nations and other nations around the world. International relations occur through, and are often defined by, international treaties. Therefore, by signing a treaty, both sides are showing that they recognise the sovereignty of the other, and the treaty spells out how each nation will relate to the other.
“The fact that some nations lack power, or may be dependent upon other nations, does not detract from their status as sovereigns. The US Supreme Court once defined tribes as ‘domestic dependent nations’, but this does not prevent the use of the term ‘sovereignty’ to describe tribes. The treaties between tribes and the US federal government are recognised as being equal to the US Constitution as the supreme law of the land.
“So what is the defining aspect of sovereignty? It’s not independence. It’s not absolute power. The defining aspects of sovereignty are the international relationships carried out as sovereign nations. Treaties are the most obvious evidence that one nation recognises or acknowledges the sovereignty of another nation.”
So where does our own ‘sovereignty’ stand? Goenpul man and Aboriginal rights campaigner Dale Ruska acknowledges that “we can no longer enjoy full and perfect sovereignty”.
200 years of colonial development on our lands can’t be reversed. It has to be sovereignty in consideration of all that has happened. But we should still be entitled to enjoy many aspects of our nationhood.
There has already been debate over whether the process should involve a single overarching treaty or numerous treaties with individual First Nations. Why not have both? There could be some sort of structure established, similar to New Zealand’s Waitangi Tribunal, which would serve as a platform for initiating treaty negotiations between each nation and the Crown. An overarching treaty could guide and facilitate the settlement process with what Mary Graham calls a “charter of principles”.
A charter of principles would be a legal Constitutional protection for all these treaties. We could also have a standard treaty – several things that are in all of the treaties.
Signed on the May 11th 2000, the Nisga’a Final Agreement could be a model to consider regarding how treaties with individual Indigenous nations can function.
Aboriginal lawyer Michael Mansell says without legislation, a treaty “would still only be a piece of paper and wouldn’t be enforceable against anybody”.
But if the Commonwealth government passed legislation and the terms of the treaty were in that legislation, then it’s enforceable against the commonwealth, the states, the territories and anybody else.
In 1975, the New Zealand government legislated to give the Treaty of Waitangi bearing on the nation’s legal system for the first time. The Treaty of Waitangi Act paved the way for recognising Maori as an official language, continues to facilitate settlement negotiations between Maori and the Crown, and has given the Treaty substantial influence over the workings of both national and local government.
Currently there are no national Aboriginal bodies with the capacity, independence or mandate to negotiate a central treaty.
With the National Congress of Australia’s First Peoples on the chopping block, does opportunity beckon? Who could set the terms of the charter of principles? Who would develop the platform by which individual nations can begin the treaty settlement process? The idea of a national Aboriginal assembly, a Black parliament, is not something new.
Mansell says “a national Aboriginal assembly would seek to take away the authority of Australian governments to make decisions on behalf of Aboriginal people”.
We don’t need the permission of Australian governments to setup such a body. There’s no reason why in 2014, we can’t have this Aboriginal assembly up and running in its infant state.
In light of the current Constitutional review taking place in Aotearoa, there has been talk of establishing a separate Maori parliament. Co-editor of the Maori Law Review Dr Carwyn Jones has proposed “an assembly that is like the United Nations where states retain their own autonomy, but they come together to make agreements on matters that affect them all”. Could we see the same kind of system operating for us?
Seeing how treaties have worked for Indigenous peoples internationally, it can only make our own aspirations seem less and less like we’re chasing pipe dreams. In the year 2014, we have the privilege of being able to learn from the experiences of others around the globe. When we set out to draft a model that will suit our own situation, what’s stopping us adopting positive aspects of the 1840 Treaty of Waitangi, the Nisga’a Final Agreement and the USA’s treaty federalism?
Treaties are about land rights, reconstruction and power sharing. This process has the potential to shift the social fabric of the society we live in as we seek to end the domination of one people by another. Some will claim treaties are instruments of a bygone era, but does justice have an expiry date?
Callum Clayton-Dixon is Editor of Brisbane Blacks, 3rd year journalism student & co-founder of the Brisbane Treaty Collective.
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