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A Treaty Between Our Nations?

Inaugural Professorial Lecture
By Professor Marcia Langton,
Inaugural Chair of Australian Indigenous Studies,
University Of Melbourne,
Melbourne, Australia

Professor Marcia Langton addressing a reconciliation conference, Birmingham, September 1998 (conference organised by ANTaR and 8020 Educating and Working for a Better World). ENIAR representatives were invited guests.

Introduction

11 July 2000 - At the end of the Twentieth Century, the public culture of Australia remains, as it has for the previous two centuries, riven by disputes as to the status of indigenous people in Australian civil society. I argue here that it remains the case that the Australia polity is devoid of a clear and just status for indigenous people within its ambit. Further, this continuing dispute is a loose hanging thread in the web of our civil society.

The modern nation constituted at Federation in 1901 excluded indigenous people from the State, and such exclusion continued until the 1960s. In the twentieth century the problem became more acute: Aborigines having been dispossessed, the new state then excluded them from the status of citizen, and Aborigines inhabited a political no-man's land for nearly seventy years, from 1901 to 1967. The public debates about the place of Aboriginal people in the nation have focussed on the problem of how to incorporate Aboriginal people into the ambit of the nation state by various means: assimilation, integration, self-management, self-determination, reconciliation, and throughout years, the call for a treaty could also be heard.

Following legislative reforms in the 1970s, Aboriginal land rights were recognised in statutes. Whereas the lands returned under these statutes were acts of grace by the Crown, the common law recognition of native title by the High Court of Australia in 1992 found customary rights to land that had pre-existed and, under certain conditions, survived British sovereignty. The subsequent codification of native title in theNative Title Act of 1994 aimed, amongst other things, to resolve the retrospective effects of this discovery at law of an underlying title which had the potential to cause the invalidity of titles issued since annexation. The High Court decision in the Wik case found that native title and pastoral leases could coexist, with some qualification, and this finding was the grounds for amendments to the Native Title Act. In breach of international law on acts of racism these amendments substantially stripped Aboriginal people of their customary property rights. It is this sequence of events in the deterioration of Aboriginal rights that has caused Aboriginal people to consider the legacy of the frontier in Australia as a continuing and profoundly racist exclusion of Aboriginal people from the Australian polity.

The doctrine of terra nullius as argued by Blackburn J. was found by the Mabo High Court to be inconsistent with modern standards of human rights. That judgement relied on the proposition that "not only did the civilized nations acquire sovereignty by their 'discovery' of lands but the right of inhabitants to continue to possession must receive executive or legislative recognition before it can be admitted to exist."

However the High Court's judgment in Mabo and others v The State of Queensland unanimously confirmed that the validity of the acquisition of sovereignty by the Crown is not justiciable in municipal courts. The acquisition of sovereignty is an Act of State which cannot be reviewed. The decision in Mabo confirmed the position in Coe v The Commonwealth, and it is now settled law that no challenges to the validity of Australian sovereignty will be entertained before an Australian court. Further, as Noel Pearson observed in his 1993 Evatt Foundation Lecture, "as a matter of international legal theory, the validity of the acquisition of sovereignty over Australia by the British Crown is a moot point."

Even so, it is generally agreed in the literature on this problem that "there is no way that the issue will ever be entertained at the international level." Further, he explains

As a matter of law the decision of the High Court in Mabo has established that the conflation of sovereignty with land ownership . . . the law now recognises Aboriginal law as a source of law and as the basis for the indigenous right to land.

Pearson's lucid refutation of arguments within the Aboriginal community on issues of sovereignty as a useless diversion was accompanied by his eloquent demand in that lecture for fruitful alternatives to the concept of sovereignty as then argued by the Aboriginal Provisional Government. He conceded, however, that

a concept of sovereignty inhered in Aboriginal groups prior to European invasion insofar as people have concepts of having laws, land and institutions without interference from outside of their society. This must be a necessary implication of the decision in Mabo against terra nullius.

Justice Blackburn in Milirrpum v Nabalco had ruminated on the question of the existence of Aboriginal government, laws, and perhaps, as had Chief Justice Marshall in 1832, the sovereignty of those who occupied the land before British sovereignty when he said:

The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called 'a government of laws, and not of men', it is that shown in the evidence before me.

In accordance with the Mabo finding on native title arising from particular 'traditional laws and customs', Pearson suggested that, with the development of standards of human rights relating to Aboriginal people at international law, "Recognition of . . .'local indigenous sovereignty' could exist internally within a nation-state, provided that the fullest rights of self-determination are accorded."

He also noted that the Australian state

has consistently failed to understand and to accept the right of its indigenous peoples to be allowed the fullest rights of self-determination. It is little wonder that calls for a separate nation find ready adherents in the Aboriginal community.

Australian judicial decisions on these issues make interesting reading. In the end, it must be concluded that the denial of the existence of Aboriginal nations in Australia by this case law accords our nation the status of an anomaly among the settler colonial states. No treaties or agreements were concluded with Aboriginal people. The monstrous injustice of the seizure and dominion involved, and the lack of consent and treaties, remains a stain on Australian history and the chief obstacle to constructing an honourable place for indigenous Australians in the modern state. That place must be found beyond the limits of the legal discursive framework that dehumanises and dehistorises Aboriginal people rendering us as the mere wandering brutes of Hobbesian and Rousseauian fame.

In a protracted public debate during the year 2000, following national consultations over a ten-year period, the Council of Aboriginal Reconciliation presented to the Prime Minister the Rt Hon. John Howard the Draft Document of Reconciliation.

His rejection of this document on the spurious grounds that only 'practical reconciliation' can ameliorate the 'problems of the Aborigines' has been interpreted as his rigid refusal to recognise indigenous societies as pre-existing entities with rights and entitlements. His rejection of this innocuous document was followed by a counterproposal from Aboriginal leaders for a renewed treaty commitment. The idea of a treaty between our nations thus requires to be explained, as I hope to do here.

In Australia, there has been an almost comprehensive rejection of the idea that Aboriginal peoples might be self-governing within the limits of Australian law. The exceptions are minor such as the right to practise narrowly interpreted 'traditions and customs' on Aboriginal land in some demarcated areas, some limited rights under local governance statutes, and the narrow recognition of native title under 'traditional laws and customs' as pertaining only to the internal incidents of native title in the Native Title Act of 1994. The Australian Law Reform Commission recommended a limited means of recognition by amending some statutes, but the recommendations have largely been ignored. In a limited way, the judiciary has adopted its advice on the relevance of customary law in evidence and sentencing.

So, how can it be explained that native title to land that pre-existed sovereignty and survived it, as the High Court of Australia has explained, has been recognised, and yet the full body of ancestral indigenous Australian laws and jurisdiction are deemed by a narrow, historically distorted notion of sovereignty to be incapable of recognition.

In this lecture, it is possible only to touch on some of these issues. In setting out some of the evidence here, I provide an interpretation that shows that it was the failure of colonial governments to make treaties with our ancestors and the subsequent body of justification for that failure, both judicial and political, that deprive Australian indigenous peoples today of the dignity of exercising fully the body of ancestral law in coexistence with the sovereign state. The idea of sovereignty on which this exclusion lies is a fictive account of settlement, a fictive account of dominion and a distortion of more than four centuries of the exercise of sovereignty by the British Crown in the New World.

Of the terra nullius proposition, it was said in Mabo [No 2][469]:

The facts as we know them today do not fit the 'absence of law' or 'barbarian' theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands.

Thus, I argue that, just as British sovereignty did not wipe away aboriginal title, neither did it wipe away aboriginal jurisdiction. Aboriginal government under the full body of Aboriginal customary laws, must by the same logic as the discovery of native title at common law, survive annexation of Australia by the Crown, even if in some qualified way.

The plain denial of justice in the suppression of Aboriginal customary laws and jurisdiction results from the one-dimensional notion of sovereignty that has developed as a defence of the indefensible.

Let me explain what I see as the relevance of treaties to this continuing dispute in Australian society about indigenous people. I will first consider the nature of treaties, second, the historical uses and characteristics of treaties; third, the history of agreement making between indigenous and non-indigenous Australians, fourth, the debates about a treaty in Australia, and finally, the issues of relevance to our society in this account of treaty making.

Treaties in historical perspective

According to the records, the British have used treaties for the settlement of disputes since the Thirteenth Century. Elsewhere as well, they have been common practice between nations and states, either in the form we now know them at international law or in different forms which stem from past customary law practices.

In the entry on "treaty" in the Oxford Historical Dictionary, we find the claim made by Haydn that the first formal and written treaty made in England was made on 11 September, 1217, between Henry III and the Dauphin of France:

HAYDN Dict. Dates s.v., The first formal and written treaty made in England with Henry III and the dauphin of France . . . II Sept. 1217. 1874 BANCROFT Footpr. Time viii. 195 A treaty of alliance with France. . . .

The Treaty Rolls preserved in the Public Record Office in London commence at February 27, 1235, during the reign of Henry III. The catalogue of the British Library lists boxes of material relating to treaties dating from 1131 in the case of Papal Bulls (1131 to 1533).

There is an abundance of treaties and treaty documents in the records of the Public Records Office in London covering a period of several centuries. They can be divided into two distinct types: formal documents (protocols and ratifications), and administrative papers. Treaties in the Public Record Office concern matters as diverse as defence, border disputes, trade, marriage, environmental issues, etc.

Clearly the word 'treaty' is a catch-all term for a variety of types of documents that are agreed between parties for a wide range of purposes.

When the British and other European imperial powers entered the New World, treaties and agreements with indigenous people ensued.

Following the War of Independence in the United States of America, Chief Justice Marshall of the US Supreme Court was explored the dilemma of the conflicting rights of settlers and indigenous people and adopted the compromise known as native title at common law. The Chief Justice reviewed the practice of Europe which developed after the 1537 Papal Bull, and declared that the

. . . rights of the original inhabitants were, in no instance entirely disregarded . . . They were admitted to be the rightful occupants of the soil, with legal as well as just claims to retain possession of it'.

The fundamental rationale was equality as a principle of the rule of law, as Richard Bartlett has noted. This is a celebrated but not unusual instance of the recognition of indigenous peoples as the rightful occupants of the soil. As we shall see, the history of treaty making in the New World extended over four hundred years for the British and French and over five hundred for the Spanish, Dutch and Portuguese with divergent outcomes throughout the colonies.

Imperial powers found it necessary in various situations to justify acts of domination for juridical purposes. The reasoning of Blackstone in relation to terra nullius, that is, wasteland or uninhabited lands, is famously such a case of justification of domination for juridical purposes. Fisch noted that for practical purposes, the assumption of "might makes right" prevailed otherwise. Historians are turning in larger numbers to analysing the various ideas that sustained the colonisers' beliefs in the righteousness of their dominion over others, and in Australia the extraordinary array of evolutionary theories about Aborigines come to mind in that regard.

The starting point for European expansion in the fifteenth century was the nearly total absence of relations with extra-European peoples. Thus, after initial contact had been established, the potential approaches of the imperial entities to regulate relations included all of those from unilateralism to reciprocity. Between these two extremes it was possible to develop variants that expressed relations equality and inequality.

'rightful occupants of the soil'

In 1823, in the United States Of America, a decision recognising the 'rightful occupants of the soil' and 'domestic dependent nations' was delivered by Chief Justice Marshall in Johnson v McIntosh 8 Wheat 543 (1823).

Professor Richard Bartlett, in Native Title in Australia says of Johnson v McIntosh:

However, the equality declared by Chief Justice Marshall was tempered by a regard for pragmatic considerations. In Johnson, the United States Supreme Court upheld a grant by the United States over claims of private purchase from Indian tribes of the same lands. Marshall CJ declared that 'discovery gave title' to the 'discovering' nation and rejected the application of the 'law which regulates . . . the relations between the conqueror and the conquered'. The court declared that the circumstances required 'resort to some new and different rule, better adapted to the actual state of things': 8 Wheat 543 at 591, 599; 5 L Ed 681 at 693, 695 (1823). The Indians were recognised as the 'rightful occupants of the soil', but their title was 'necessarily, to considerable extent, impaired': (1823) 8 Wheat 543 at 574; 5 L Ed 681 at 688. The impairment the Chief Justice referred to was the denial of power to alienate upon vesting of the underlying title in the 'discovering' nation. The denial of the power to alienate affirmed the validity of grants made to settlers, 'subject only to the Indian right of occupancy': 8 Wheat 543 at 574, 591; 5 Led 681 at 689, 693 1823).

The Chief Justice thereby recognised but also diminished indigenous rights to traditional land in the course of reconciling indigenous rights with title in the Crown. . . .The court did not suggest that such a diminished recognition of indigenous rights was just. Rather, it opined that it was the only possible accommodation the interests of settlers and of the indigenous people." (p.6)

Bartlett further notes that: .

Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States. . . .

This policy was first recognised in Johnson v McIntosh and has been repeatedly reaffirmed . . . Indian right of occupancy is considered as sacred as the fee simple of whites."

The Supreme Court emphatically denied 'that a tribal claim to any particular lands must be based upon a treaty, statute or other formal government action': 314 US 339 at 347 (1941).

Martinez notes of the extraordinary contradiction in the findings of President Judge Marshall in the famous Worcester v. Georgia case of 1932,

Nothing better illustrates what is at stake than the inherent contradiction in the reasoning behind the famous sentence handed down by the United States Supreme Court - in the words of its President, Judge Marshall in the famous WORCESTER V. GEORGIA case of 1932. On the one hand, Marshall reasons as follows: "America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors." On the other hand, he advanced the thesis that the United States of America possessed rights over those very same nations, on the basis of their "discovery" by Great Britain, and by virtue of its status as political and territorial successor of the British.

This case led Fisch to argue that when, in practice, one party establishes its supremacy over the other, or seeks to achieve hegemony, it becomes necessary - for a variety of reasons - for it to seek legal justifications, particularly to uphold claims against other contending parties or to counter domestic criticism.

General justifications played a crucial role in European overseas expansion. They had inherent universal applicability and included such well-known terms as 'the right of conquest', and 'humanitarian (or civilizing) intervention'. Significantly, moreover, such justifications referred to rights that were specifically claimed by the European powers, such as the right to propagate the faith unhindered. Formally established juridical relations coexisted alongside claims to rights which the European powers never succeeded in securing in practice or which could only be secured at a much later stage.

It is thus not possible to reduce the international relations between the Europeans and indigenous peoples as a whole to a single pattern. For a long period, a number of variants of international law coexisted, and were employed by the Europeans depending on the various circumstances and their diverse interests. Those relations never existed within a legal vacuum either in theory or practice - and during the whole era of European expansion - international law was taken to be universal and its norms were considered to be applicable to the whole world. The bone of contention was determining who were subjects of such a universal system of norms.

Special Rapporteur Martinez submits, that, contrary to 'conventional wisdom', 'from the very beginnings of that relationship, the indigenous nations were considered as capable of preserving peaceful or warlike relations and of entering into treaties with the European Powers.'

Further, he emphasises that the heart of the problem is that international law currently constitutes a system encompassing entities that are juridically equal, but which must at the same time face considerablede facto inequalities, which cannot be done away with merely by proclaiming equality. He argues, therefore, that the international juridical order is compelled to take those inequalities into account by granting them special rights to guarantee minimum applicable standards. Scholars of legal history are more and more coming to similar conclusions.

Richard Falk refers to the problem as one of entrapped nations, entrapped within the structure and framework of the sovereign state.

We need to understand the extent to which there exists in all parts of the world now, an awareness that one of the great current problems of world order, is the plight of what I would call entrapped nations, nations that are entrapped within the structure and framework of the sovereign state. An enormous juristic fraud has been perpetrated on modern political consciousness by confusing national identity with the power political reality of state sovereignty.

Writing on the manner in which courts, when dealing with issues of sovereignty, hide behind the act of state doctrine, Brian Slattery argues:

Whatever the merits of this argument in other contexts, it is doubtful whether it should induce modern Canadian or American courts to accept fictitious accounts of the manner in which their countries came into being, accounts that accept even the most extravagant imperial claims at face value and ignore the historical presence and view points of Indigenous peoples.

Despite the findings at law as to indigenous nations being the 'rightful occupants of the soil', the doctrine of discovery was interpreted as an exercise of dominion that impaired the status of these indigenous nations. Nevertheless, such domestic dependent nations continue to exist in North America within the dominion of the United States of America.

Globally, Indigenous peoples have brought to international attention the monstrous injustice of these self-justifying claims to dominion and developed various models for the negotiated settlement of rights in their ancestral property and jurisdiction. Legal scholars have supported their rejection of the fantastic nature of settler states' claims to legitimacy and the alternative arrangements developed. In some parts of the world, such arrangements have removed the cloud on the encapsulating settler states and the titles issued by their governments.

Treaties and Agreements in common law settler states: United States of America, Canada, and New Zealand

The United States of America

In North America from the time of first settlement, in the years 1533 to 1789, that is, prior to Independence and the Marshall cases, the administrators of British colonies treated with Indian nations as equal sovereigns. They were relationships 'between sovereign nations' that 'accorded tribes an equivalent status to that of the colonial governments.'

For pre-Independent English-speaking North America, Dorsett and Godden describe the situation as follows:

in many cases the British Imperial Government instructed colonial administrators that land could only be acquired by purchase from the Indians. This policy was formalised, and applied uniformly to all the North American colonies in the Royal Proclamation of 1763. The Royal Proclamation prohibited all private purchases of lands covered by the Proclamation. This gave the Crown the sole right to purchase Indian lands.

After independence, from 1789 to 1871, the United States government assumed the role of the British and Spanish governments and continued the earlier British policy of treating with the Indians as members of sovereign nations.

These treaties were made under the authority of the federal treaty making power. United States Constitution, Art. II(2) provides, inter alia, that the President: ' . . . shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur'. Treaties provided not only guarantees that the government would protect traditional lands, but also for the provision of specific services to the Indian nations, which can be analogised today to provision of social welfare services.

It was during this period that the 'Marshal Trilogy' of cases were decided: Johnson and Graham's Lessee v. M'Intosh, 8 Wheat. 543, 21 U.S. 543 91823) and Worcester v. Georgia, 31 U.S. (6 pet.) 515 (1832), already discussed; and,Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). These early decisions determined both the relationship of the United States Government to the Indian nations, and the parameters of subsequent judicial developments. 'The two latter cases established the status of the Indian Nations as domestic independent nations and the resulting Federal-Indian trust relationship.'

In 1871 treaty making with the Indian tribes was discontinued as it was seen as an impediment to the assimilation of Indians into white society. In that year, in a rider to the Appropriations Act, Congress declared that no more treaties could be made with the Indian nations. Thereafter, 'agreements' rather than 'treaties' were made with Indian peoples. Between 1911 and the 1970s, Congressional practice was to obtain some kind of consent from the Indians for any action it was considering which might affect them. Current practice is to use negotiated settlements as a means of dealing with complex issues.

Canada

Treaties in Canada proceeded from a different basis from those in the United States of America. Prior to Confederation, almost 40 treaties, the majority being peace treaties, were negotiated between First Nations and the British Crown during the period 1693 to 1862. In Canada, however, Indian peoples were not considered sovereign powers as determined byR v. Bob and White (1964) 50 D.L.R. (2d) 613. 'Later treaties tended to follow a pattern of surrender of lands in return for particular rights, for example continued hunting and fishing rights, supplies of monetary payments'.

After Confederation the Canadian Federal Government still maintained the treaty making process, although it changed significantly. These later treaties are known as the 'numbered treaties' as they are consecutively numbered Treaty 1 (1871) to Treaty 11 (1921). All of the numbered treaties contain the same core provisions and thus, in exchange for surrendering 'all their right and title to their lands, the Indian peoples were to receive monetary annuities in perpetuity and reserves.

These treaties are known as sui generis in nature.They 'are not the same as a treaty created in accordance with international law.' They 'do create enforceable obligations', however. Further, they 'do not create new rights. Rather they "recognise pre-existing rights". While treaties in Canada do not have primacy over federal law, they are supreme in relation to provincial laws under the provisions of S. 88 of the Indian Act.

Section 35 was inserted into the Constitution Act in 1982 at the time of the patriation of the Constitution. It stands outside theCanadian Charter of Rights and Freedoms, and provides that 'The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.' Further, at subsection 3, it includes land agreements as 'treaty rights' in order to achieve 'greater certainty'. In addition, Section 25 provides that:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights of freedoms that pertain to the aboriginal peoples of Canada including:

• . . . any rights or freedoms that have been recognised by the Royal Proclamation of October 7, 1763; and
• . . . any rights or freedoms that now exist by way of lands claims agreements or may be so acquired.

Section 35 is designed to protect aboriginal rights and treaty rights that had not been extinguished in 1982 at the time of the insertion of this section into the Constitution. (p.24) Under Sparrow it was held that Section 35 provides constitutional protection to those aboriginal rights which were not extinguished prior to the coming into force of the Constitution Act, 1982.

New Zealand

The Treaty of Waitangi, signed in 1840, between the Maori and the British colonial government, is recognised as the founding document of New Zealand and 'resides in the constitutional field' of its system of government. The treaty is in two versions. English and Maori. Because they vary in meaning quite substantially, there were problems of interpretation such that the English version had been privileged over the Maori. Only recently, legislation has been enacted providing that the Maori version is to be used when dealing with interpretation. The authors explain that,

. . . according to the English text version, sovereignty passed to the British Crown and then subsequently to the New Zealand government. However the Maori text speaks of granting a right of governance rather than sovereignty. Under the principles of international law operative at that time, the British Crown acquired sovereignty over New Zealand by way of cession.

The Treaty established the right of the Crown to govern in New Zealand and the terms of a peaceful settlement. In exchange Maori rights to their lands, resources and taonga were affirmed and Maori were granted the rights and privileges of 'British citizenship'. When New Zealand became constitutionally independent from Britain the Treaty obligations of the British Crown were transferred to the Crown in New Zealand. Unlike Australia New Zealand has a unitary rather than federal structure of government, and while it is a constitutional monarchy it does not have a written constitution. The government's power to deal with Maori affairs derives not from a nominated head of power as under the Australian Commonwealth Constitution, but from the inherent plenary power arising from sovereignty itself.

However, the Treaty can only give rise to legally enforceable rights when incorporated into domestic New Zealand law. Many Maori want to see the Treaty incorporated into law as a fundamental constitutional document to strengthen claims to greater control over their own affairs, and to obtain protection of Maori culture and compensation for Treaty breaches.

The Treaty provided that the Crown's right to govern was dependent upon it meeting its obligations to Maori people under Articles of the Treaty. Recently the Treaty has been considered in a number of land mark cases dealing with Maori rights.

In interpreting the Treaty, the courts historically held the Treaty to be of no legal force, in itself, without incorporation into domestic New Zealand law. A passage frequently cited on this subject in the case of Hoani Te Heu heu v Aotea District Maori Land Board:

It is well settled that any rights purporting to be conferred by such a 'treaty of cession' . . . 'cannot be enforced in the Courts, except insofar as they have been incorporated in the municipal law'.

Dorsett and Godden explain that over the last ten years there has developed a significant body of case law which has clarified the treaty obligation of the Crown. Of particular importance in marking a change in the attitude of the Court was the above mentionedMaori Land Council Case where the Court found that the Treaty should be interpreted in a broad manner and as an evolving instrument taking account of international human rights norms. A number of treaty principles were elucidated in the course of that decision including: Sovereignty was exchanged for the protection to Rangatiratanga; the treaty established a partnership imposing on the partners a duty to act reasonably and in good faith; and, Maori are to retain Rangatiratanga over their resources and taonga.

Ideas about and attempts to negotiate treaties with indigenous people in Australia

Throughout Australian history, entrepreneurial, evangelical, and other humanitarian figures in our history have attempted by various means, including attempts at treaties, to resolve the hostile relationship between the indigenous and settler Australians.

No treaty documents or treaty proposals were officially recognised and judicial decisions declared Australia uninhabited wasteland. Consequently, the large body of law centred upon these treaties and their interpretation, which has developed in the USA and in Canada, has not developed in Australia.

In the following part of this lecture, I survey some of the attempts at settlement and offers of settlement.

Henry Reynolds examines the evidence of treaty-making in Tasmania in his book, Fate of a Free People: in the early years of the first colonial settlement in Tasmania a Treaty with the 'Chiefs' of the Aboriginal 'tribes' had often been discussed and considered. It was suggested that a treaty should have been entered into in order to restrain and prevent the extermination of the Aborigines by settlers. In Governor Arthur's correspondence, Reynolds finds explicit discussion of the need for treaties:

While reflecting on what had gone wrong in Tasmania, Arthur urged the Colonial Office's officials to negotiate treaties and arrange for the purchase of indigenous lands in all future colonizing ventures. He pushed this policy in letters written in 1832, 1835 and 1837. 'On first occupation of Tasmania', he observed in 1835, it was 'a great oversight that a treaty was not, at the time, made with the natives and such compensation given the chiefs as they would have deemed a fair equivalent for what they surrendered'. Arthur believed they would have been satisfied with 'a mere trifle'. But even a trifle would have amounted to a clear acknowledgment of prior ownership.

But significantly this process of negotiating treaties between the settlers and indigenous people was not new. As has been noted previously, treaties had been concluded elsewhere in the New World. Reynolds observes:

From an international perspective, Arthur's interest in treaties was not surprising, particularly as he had spent eight years in the Americas. Treaties had been negotiated with American Indigenous since the seventeenth century and continued to bet the normal way of arranging the relations between settles and indigenous people until the 1870s.

Arthur, as Reynolds argues, was concerned enough to communicate his desire that the Colonial office deal with negotiating a treaty of some kind with the Aborigines:

Arthur frequently referred to his desire for negotiation in dispatches to the Colonial Office and in other official documents. His proclamation of April 1828 contained references to an 'intended negotiation'; to his plan for a 'negotiation with certain chiefs of aboriginal tribes'. But how to conduct such a negotiation was another matter altogether. Neither side seemed to offer scope for conciliation. The Aborigines fled at the sight of Europeans, who in turn feared the silent spear. Enquiries made by Arthur through the magistrates in December 1827 failed to produce any one at all 'willing to incur the hazard of attempting to open a conciliatory communication with the Aborigines'. Arthur wrote to Governor Darling six months later, expressing his lack of success in the attempt to 'induce them to listen to any specific terms of accommodation'.

Secretary of State Hukisson wrote to Arthur in May 1828 approving Arthur's attempt 'to confine their limits' but warning that the 'restless character' of the Tasmanians would make it difficult to 'confine them to any particular limits within the Colony'.

Yet the idea of a treaty still preoccupied the mind of Arthur and later, George Augustus Robinson who was commissioned by Arthur to negotiate with the Aborigines:

Governor Arthur was equally concerned about his ability to control the Europeans or 'although the respectable class of settlers might be depended upon in maintaining the treaty', the servants, runaway convicts, stock-keepers and 'all that class of characters who . . . are under no special control' would continually encroach on Aboriginal land.

Reynolds concludes,

Robinson was negotiating what was, in effect, a treaty. The political reality was that the colonists had failed to impose a military solution and were forced to offer terms. After significant negotiation, during which the terms were modified and then accepted, there was then a strong obligation to meet the conditions of the treaty. This was at the very heart of the complaints made by the petitioners in 1846, who knew that what Robinson had done was to 'make for us and with the Colonel Arthur an agreement which we have not lost from our minds since and we have made our part of it good.'

His evidence shows that treaty making was well understood among the Tasmanian tribes. For instance,

Kicketerpoller told Robinson about conflict between the Pardarererme people of the north-east and the Luggermairerner if Big River tribe of the central plateau. It arose because the later had broken a treaty - they had received beads as payment for red-ochre but had not delivered as promised. Such agreements were necessarily verbal. But the expectation was that they would be honoured. Robinson appreciated that the Tasmanians 'look for and expect a fulfilment of such promises as are made to them'. And this applied to white men as well as black, Robinson observing that they 'relied with implicit faith on the fulfilment of the promises I made to them on the part of the Government'.

Robinson admitted his failure to deliver one of the conditions of 'the compact made to the Aborigines', and this admission is interesting in itself, Reynolds observes that Robinson's journal entry

. . . confirms the story related to Calder that Robinson was often heard to express regret that the promises 'made them on which they surrendered their liberties, were so faithlessly kept'. In the most critical negotiating - that with Manalargenna - Robinson said nothing about permanent exile, as his own journal entry indicates:

This morning I developed my plans to the chief Manalargenna and explained to him the benevolent views of the government towards himself and people. He cordially acquiesced and expressed his entire approbation of the salutary measure, and promised his utmost aid and assistance. I informed him in the presence of Kickerterpoller that I was commissioned by the Governor to inform them that, if the natives would desist from the wonted outrages upon the whites, they would be allowed to remain in their respective districts and would have flour, tea and sugar, clothes etc. given to them; that a good white man would dwell with them who would take care of them and would not allow any bad white man to shoot them, and he would go with them about the bush like myself and they then could hunt. He was much delighted.

The conclusion can be drawn from journal entries that Robinson had been negotiating on the basis that he was authorised to make such 'promises', and that he interpreted the negotiations to be in good faith on the basis that his interlocutors placed trust in him, and in his words.

Reynold's also turns to the views of the Governor Arthur to understand the nature of these events. In correspondence, Arthur wrote:

The proposal to allow Aborigines to remain on their land was prompted by Chief Justice John Pedder in the Executive Council meeting of February 1831. He wondered whether

some treaty could not be made with these people, by which their chiefs should engage for the tribes not to pass certain lines of demarcation which might be agreed upon, and that it should be proposed to them to allow an European agent to reside with or accompany each tribe.

Governor Arthur concluded from his Tasmanian experience that there was a need for treaties when dealing with indigenous peoples. When writing to the Colonial Office in 1837, he explained that the idea had been much on his mind while he was still on the island and that he discussed the idea 'at great length with Mr. Robinson'. Both Arthur and Pedder formally raised the question of treaty at meetings of the Executive Council. Arthur's problem was not whether a treaty was appropriate, but whether either side would conform to it. The respectable settlers might be depended on, but not the riff-raff. The chiefs might be negotiated with, but they lacked influence and little dependence could be places on 'the observance of any treaty' by the Aboriginal population as a whole.

Reynolds concedes that we may never know with any certainty whether Robinson negotiated a treaty on behalf of the government. The conditions were not written down. However, he does conclude that the evidence suggests that he did reach an agreement similar to the treaties with native American tribes in North America, although the terms of the agreement were not honoured.

Batman in Victoria

The well-known but ill-fated Batman treaty concerning an area of land now encompassing Melbourne was firmly rejected by Governor Bourke in 1835. The entrepreneurial Batman negotiated and signed a Treaty with the Koori of Victoria June 6, 1835. "There were two treaties, each executed on parchment in triplicate."

The first was titled, "Grant of Territory called DUTIGALLA, with livery of Seisin endorsed, Dated 6^th June, 1835". It covered an area some forty miles in length or 500,000 acres. This was the "Melbourne" treaty. The second treaty "ceded 100,000 acres if the Geelong, Indented Head area, and is similar in all respects except for the details of the land."

Billot notes of the settler parties to these documents, Batman, Wedge and Gellibrand, that they, "believed in the value of the treaties: at least, always gave strong indications of their faith in them", even though,

'It was not, of course, expected that the treaty would be considered binding on the English government, but on previous experience, such action was considered to be proof of bona fides, and would justify approaching the home government for authorisation of settlement, thus over-riding the local Sydney authorities'.

Australian history has many gaps and work remains to be done. Whether agreements were sought in the following decades as the frontier violence raged across the continent, I do not know. Accounts by anthropologists, Donald Thomson, R.M. and C.H. Berndt, and Ian McIntosh tell of a series of events in Arnhem Land in the Northern Territory from the 1940s. Thomson was commissioned by the Australian government to investigate the situation of Aboriginal people in the north eastern part of that region after the killing several Japanese fishermen and a police constable by Aboriginal people. Thomson trekked with Riawulla north along the coastline from the Roper River to find Wonggu, whose three sons had been imprisoned in Darwin, carrying the maak, or carved message sticks that the young men had carved as a message to their father, which Thomson passed to Wonggu when he finally made contact. Thomson negotiated a peace agreement with Wonggu, Wonggu promising to desist from killing and Thomson committing himself to pursuing his case for land, peace and protection with the Australian government. The Yolngu then became engaged in various types of negotiation with the many strangers who came to their lands.

Ronald Berndt documented what he called the Arnhem Land adjustment movement that came into being late in 1957. In 1962, the clan leaders at Elcho Island prepared a demonstration in full view of all the residents of the mission, Aboriginal and mission staff alike, of sacred poles to protest to the missionaries the existence of their own religion. Such public revelation was unprecedented in Aboriginal life. He describes the events as follows:

a memorial was set up near the old mission church at Elcho Island. A small, open enclosure held a display of formerly secret-sacred religious emblems that were being made public for the first time: the central traditional post had a Christian cross at its apex. We need not go into the reasons for this movement's establishment, or its aims. It is sufficient to say that in this context it emphasised traditional religious equality with Christianity, and had wide socio-political implications. . . . the undoubted stimulus for Aborigines was to put their relations with Europeans on a new footing. . .

This was followed in 1962 by the creation of two panels of clan emblems by each of the clan leaders of northeast Arnhem Land at the mission at Yirrkala, Dhuwa and Yirritja. These were placed on either side of the altar, and again represented the most sacred and secret of the clan wangarr, or Ancestral origins and meanings, never before revealed in public. These events involved months of negotiation between the clan leaders at their respective mission settlements and represented a turning point in the relationship between Aboriginal people and the missionaries at Yirrkala. In protest at the excision of their lands for bauxite mining by the federal government, the Yolngu clan leaders prepared the famous Bark Petition in 1963, prepared in ritual fashion and signed in English fashion, and submitted to the Parliament in Canberra. The meetings of elders to prepare the petition was the precursor to their subsequent litigation in Milirrpum v Nabalco.

The parliamentary inquiry into the acquisition of the Yolngu land for mining followed in 1964. In 1973, Mr Justice Woodward was appointed to carry out a Commission of Inquiry into how Aboriginal land rights might be recognised by Australian law.

In March 1972, the Larrakia people whose traditional territories covered the coastal area in which the city of Darwin is located in the Northern Territory, sent a petition to the Prime Minister, Billy McMahon, requesting a treaty process be established.

It read in part:

When the first settlers came to the Northern Territory, the tribes fought them with wooden and stone weapons.

Hundreds of our people were shot.

The Gwalwa Daraniki is a group of proud blacks who will keep fighting for the land (as our grandparents did) until:

• The government appoints a Commission to go around to every tribe and work out a treaty to suit each tribe.
• Each tribe will have legal assistance, and help from anyone else they wish.
• All members of the tribe shall come together to vote and decide if the finished treaty is fair.
• If the treaty is rejected, than that tribe will go on fighting for their land rights.
• If the treaty is accepted, then all the tribe will sign it and make it good for all time.
• The treaties will also be signed by the Prime Minister, his Cabinet and the Governor-General.

We invite all people of Aboriginal descent to join the tribe of their ancestors.

These are the demands of the Gwalwa Daraniki, and we shall not stop until the treaties are signed.

The petition was signed by five men of the Larrakia tribe, including Bobby Secretary, and a report on it was published in the Northern Territory News on 30 March, 1972. As Judith Wright tells the story:

Little was heard of this petition in the troubled days of 1972 which followed, and it was not until June that Mr McMahon replied. It was not appropriate, he said, to negotiate with British subjects as though they were foreign powers; and the reason that treaties had never been negotiated with Aborigines was partly that of the difficulty of identifying the people and groups with whom negotiations could be conducted.

A proposal for a treaty was raised by the late Kevin Gilbert in correspondence with Prime Minister Malcolm Fraser in 1979, at which time Gilbert had established a second Aboriginal Tent Embassy in an encampment at the site of present Parliament House. Gilbert's impassioned arguments, published in several editions from 1987, set out his ideas on an Aboriginal Sovereign Position and were accompanied by a various versions of a Draft Treaty. His approach had little effect on the formulations of the problem as it was perceived by the Aboriginal Treaty Committee and The Makarrata proposal by the National Aboriginal Conference

In April 1979, the Aboriginal Treaty Committee held its first meeting. Its inaugural members were Dr Coombs, the first chairman, Dr Judith Wright-McKinney, Stewart Harris, Professor Charles Rowley and Professor W.E.H. Stanner. There was agreement to the content of the Committee's first document sent out in November 1978, which canvassed issues such as a treaty as providing a kind of constitutional basis for the relationship of Aboriginal Australians to the Commonwealth and Australian society generally. Wright's account noted that the difficulty for the Committee lay, not in convincing Aborigines of the worth of these proposals--Aborigines had been demanding the same for some forty years at that stage--but, in Wright's own words, 'with the attitudes and prejudices - and apathy - of the dominant Australian community.'

For five years this Committee tried to educate and persuade non-Aboriginal Australians to the idea of a national treaty to be negotiated between Aborigines and governments with the objective of settling wide-ranging historical, political, economic, social and 'land-rights' grievances, while charting a new course for the future. Judith Wright sets out her belief in a treaty between indigenous and non-indigenous Australians in the introduction to We Call for A Treaty, the publication that formed a report to the public on the work of the Committee:

Ultimately, therefore, there must be some instrument such as a treaty which will confirm for all time equal and just treatment for Aboriginal Australians wherever they live, putting their land and their rights beyond the reach of sovereign parliaments. There is no security for Aboriginal people in Acts of Parliament, which can be repealed or amended.

The Committee used many advocacy tactics: advertisements, the publication of a book 'Its Coming Yet' by Stewart Harris, radio speeches, the formation of local Aboriginal Treaty Committees and seminars and the treaty proposal won support from many Australians, including people regarded as "prominent".

The Committee members did not purport to speak on behalf of Aboriginal people. This it left to Aboriginal people to do for themselves. The main representative body for the Aboriginal people at that time was Government's elected advisory body, the National Aboriginal Conference, an non-statutory advisory body established in to advise the Minister for Aboriginal Affairs with the twofold role of expressing Aboriginal opinion through elected representatives and of providing formal advice to the Minister when requested.

In June 1979, the National Aboriginal Conference called for a treaty between the Commonwealth and Aborigines.

The Prime Minister's reply to the Conference proposal for a Makarrata did not refer to the question of overriding the states. "In view of the fate of his own Act when he had attempted to come to the rescue of Aurukun and Mornington Island, and other failures, it was a sore topic." Wright noted, "in his letter, he stated that he 'would be pleased to discuss the concept of a treaty with the National Aboriginal Conference at a mutually convenient time, if they wish to do so". In November 1979, the Hon Senator Chaney, the then Minister for Aboriginal Affairs, welcomed the initiative and the Government funded the NAC to consult Aboriginals around Australia on the idea, not of a treaty, but of a 'Makarrata'. This is a Yolngu word signifying an end of a dispute between communities and the resumption of normal relations, made known in W. E. H.Stanner's ABC Boyer Lectures in 1969,Whither The Dreaming? Stanner's description of the duelling ordeal undertaken by disputant parties in the Makarrata ceremony used phrases such as "blow for blow", "the drawing of blood", and it was clear that a public servant who had listened to the lectures had passed on a sanitised version of the term to his Ministerial masters.

Asked for an opinion on the legal possibilities inherent in a treaty in 1980, the Attorney-General relied on the decision in Coe v. The Commonwealth of Australia, which denied that the Aboriginal people of Australia (on whose behalf the case was brought) could be considered as a domestic dependent nation organised as a 'distinct political society separate from others which had been uniformly treated as a state'. While also denying that they had legislative, executive or judicial organisations by which sovereignty might be exercised. If such organisations did exist, they would have no powers unless these were conferred by Commonwealth, State of Territory legislation. As to the claim to land, it was, said the majority judgment, 'fundamental to our legal system' that the Australian colonies became British possessions by settlement and not by conquest". Clearly a reference to the terra nullius doctrine rejected by the High Court 12 years later.

For many Aboriginal leaders, the proposal for a "Makarrata" was already a dead letter. And, yet despite the Attorney-General's opinion, following the influential advocacy of the Aboriginal Treaty Committee for a national treaty, the National Aboriginal Conference supported the proposal.

The NAC's interim report on July 1980 reported doubts in the minds of Aborigines about what benefits a 'Makarrata' might bring. In August 1981, the National Aboriginal Conference issued a draft Makarrata document, subsequently referred to as 'The 24 Demands'.

The National Aboriginal Conference took seriously the idea of a Makarrata as an attempt to reach, by way of a negotiated and perhaps entrenched agreement between the Commonwealth and Aborigines, a new beginning in many areas of concern, including land rights. Legal scholars Keon-Cohen and Morse recount that the National Aboriginal Conference drew attention to five principles:

Firstly, the protection of Aboriginal identity, language, law and culture, that is an all-embracing set of notions. Aboriginal identity, language, law and culture. . . .

Secondly, the recognition and restoration of rights to land, and it is interesting to note that at that time they went on to say "by applying throughout Australia the recommendations of the Woodward Commission. . . .

Thirdly, the conditions governing, that there should be principles in this Bill of Rights, concerned with conditions concerning mining and exploitation of other natural resources on Aboriginal land.

Fourthly, compensation to Aboriginal Australians for the loss of traditional lands and for damage to those lands and their traditional way of life, . . . .

Fifthly, the right of Aboriginal Australians to control their own affairs and to establish their own associations for this purpose . . . .

The additions made to each of these principles by Keon-Cohen and Morse to update them in terms of present day human rights standards should be a warning about the naïve prescriptions formulated during this period by Aboriginal people. Human rights standards evolve continually and the advances in understanding the status of encapsulated indigenous nations in terms of international legal documents have been substantial since the time of the Makarrata debates. The authors attach the following comment to the first principle: "And in the language of the last day and a half you might read that as self-determination"; to the second, " We might today rephrase that by saying by applying the Commonwealth Principles as enunciated in Mabo Number 2"; to the fourth, " and we might add propositions concerning the Stolen Generation"; and to the fifth principle, they add "again perhaps expressed today in terms of self-determination".

The National Aboriginal Conference sought to negotiate solely with the Federal Government, first for 'Agreement in Principle', possibly to be entrenched in the reformed Constitution, and second, the negotiation of more detailed agreements for various regions. The proposed deadline for constitutional reform was 1988.

Concerned about the continuing of dispossession Aboriginal communities in the rush for minerals at that time, the Treaty Committee researched the historical treaties and agreements in the hope that some instruments that might be acceptable to settler Australians could offer some hope for the protection of Aboriginal societies.

In a comparison of Indigenous land rights in Australian and Canada, the authors, Bryan Keon-Cohen and Bradford Morse, note that both countries have had to face up to "an age-old conflict in a modern but still acute form":

the conflicting needs of an energy-hungry industrialised society and of a subsistence-dwelling, often traditional, and environmentally sensitive indigenous community. There is a cyclical element in this conflict not devoid of irony: it represents the modern version of competition for land and resources originally encountered on first colonisation, and originally resolved largely by force.

During this period there were widespread demonstrations against the Western Australian government's use of force to send a drilling rig onto an Aboriginal-owned pastoral lease to drill, on a sacred site, for oil. But as Wright noted,

The Argyle diamond venture, with its glitter of international profit, absorbed the major attention of the Australian newspapers thereafter. The Kimberley Land Council remained unfunded, and the dispossessed Aborigines of the Kimberleys remained virtually without a champion.

And Noonkanbah had . . . set off a further reaction in the 'settler' community. Not even the supporters of Sir Charles Court could stomach quite such a blatant show of force as that event represented.

Judith Wright's record of their concerns tells us much about her passion and that of her fellow committee members to find a workable solution to Australia's frontier inheritance:

We were uncertain ourselves of the legal implications of the term . . . . The question of what the final agreement might be called did not concern us much; what mattered was that it should be seen by the dominant society as binding, in the same way as any international agreement, on the Commonwealth.

Wright gives an indication of the loss of goodwill between governments and Aboriginal people at that time following the signing of the Ranger Uranium Agreement in highly questionable circumstances, as she says, "we continued to doubt whether Commonwealth legislation would prove trustworthy in the face of what had happened in the Northern Territory case."

The Senate Standing Committee on Constitutional and Legal Affairs, in its report Two Hundred Years Later, tabled in 1983 rejected the idea of a treaty because the Aboriginal peoples were not a 'sovereign entity' and so could not enter into a treaty with the Commonwealth. Instead, the Standing Committee was in favour of a compact which could eventually be inserted into the Constitution by referendum.

In the end, The Aboriginal Treaty Committee considered the divided opinion among government circles and organised Aboriginal groups, and wound up after proposing a parliamentary resolution, to asking the Commonwealth Government to negotiate a Treaty with Aboriginal Australians.

Dr Coombs, wrote to the Prime Minister on 21 February 1984, announcing the end of the Aboriginal Treaty Committee, putting a range of matters as to how the idea of a treaty with Aboriginal people would be advanced. The National Aboriginal Conference was wound up in June 1985.

The lasting contributions of the Aboriginal Treaty Committee were the arguments propounded by its members against the findings of Blackburn J. in the Milirrupum v Nabalco case, and in support of an underlying aboriginal title, or the just right of occupancy of Aboriginal peoples that demanded recognition. In the end, they were proven right by the High Court decision in Mabo No. 2. As well, they have left us with another legacy--a challenge to the courts, the legal scholars and all those who care about the fabric of Australian civil society." Judith Wright argued,

Yet it could be argued that the apparently unique position of Australian Aborigines, in which Britain claimed to have acquired inhabited territory simply through annexation and occupation, with accompanying violence by the 'settlers', was the result of an act of seizure which could not be justified in international law either of the time, or later.

Bob Hawke and The Barunga Statement

In the lead up to the Bicentennial celebrations, in September 1987, then Prime Minister Bob Hawke said that he would like to see the Bicentenary produce some sort of understanding or compact with Aboriginal people whereby the Australian community recognised its obligations to rectify some of the injustices of the previous 200 years. A statement of Indigenous aspirations was presented to Mr Hawke at the Barunga Festival in June 1988. The Prime Minister responded by calling for a treaty to be negotiated between the Aboriginal people and the Government of Australia. The use of the term "treaty" ignited much public interest, but in July 1988, Mr Hawke said:

It's not the word that's important, its the attitudes of the peoples, attitudes of the non-Aboriginal Australians and of the Aboriginal Australians if there is a sense of reconciliation...whether you say there's a treaty or a compact is not important, but it is important that we do it.

In the end, nothing was done and the idea of a 'compact' disappeared from public debate.

While support for a treaty was not unanimous, there was wide political support for reconciliation. Through 1990 and 1991, cross-party support developed for a formal process of reconciliation to be led by a council of prominent Australians, and the Council for Aboriginal Reconciliation was formally established on 2 September 1991. The ten years of educative and consultative work of the three terms of the Council, two under the Chairmanship of Patrick Dodson, and the last under Evelyn Scott, have caused a fundamental change in the terms of the debate. Reconciliation is a key word in Australian political and social life, and a significant proportion of Australians support the idea, if the various polls and the estimated 400,000 people who walked across Sydney Harbour Bridge during the final public plenary of the Council at Corroboree 2000 in May this year. In September, Prime Minister John Howard, made it clear that any kind of agreement that his government would consider would be a reiteration of the policy of assimilation and make no mention of an apology to the 'stolen generations', a continuing right of occupancy, or any special rights or measures.

Patrick Dodson introduced the idea of a 'framework agreement' in his Vincent Lingiari Memorial Lecture at the Northern Territory University in 1999, some months after the passage through the federal Parliament of the Native Title Amendment Bill.

The frustration and anger of many Aboriginal people at the relentless efforts of governments to dispossess Aboriginal people were heard clearly in Dodson's summary of the outcome of the recognition of common law native title. Native title is fragile and largely theoretical because of its vulnerability to statutory extinguishment as was so comprehensively achieved in Howard's 10 Point Plan expressed in hundreds of pages in these amendments to the Native Title Act.

In his lecture, Patrick Dodson set out the idea of a Framework Agreement as a process for the settlement of the outstanding inequalities in the relationship between the first peoples and the settler state. This proposal was communicated by a delegation of Aboriginal leaders, including Dodson, to Prime Minister John Howard following his rejection of the Draft Document of Reconciliation at Corroboree 2000. The Prime Minister likewise rejected the idea of the Framework Agreement.

His rejection of yet another offer from Aboriginal people for resolution of our outstanding grievances is only of minor historical importance, however. History will record and future generations will know that Aboriginal people have continued to assert the right to negotiate just terms and conditions of the seizure of their territories and resources and the proscription of customary laws, governance and ancestral jurisdiction.

Agreement-making and the potential for the settlement of disputes between indigenous and other Australians

Despite the formal rejection of a document of reconciliation by the Prime Minister, the outcome of the reconciliation process pursued in the last ten years necessitates an audit of agreement making with Aboriginal people in recent times. Since the first agreements signed under the provisions of the Aboriginal Land Rights Act in the Northern Territory more than twenty years ago, there has been an astonishing proliferation of agreements between Australian indigenous people and resource extraction companies, railway, pipeline and other major infrastructure project proponents, local governments, state governments, farming and grazing representative bodies, universities, and many other institutions and agencies. Some are registered under the terms of the Native Title Act. Others are simple contractual agreements that set out the framework for future developments, such as the Cape York Heads of Agreement between the Cape York Land Council, the Australian Conservation Foundation and the Cape York Graziers' Association.

There is a growing confidence in the process of agreement-making with indigenous people, and, at the same time, there is an increasing understanding of the flaws in the process that arise the intransigence of State and Federal governments in recognising these agreements. This intransigence prevents the formalisation of critically important aspects of these agreements such as their ability to run with the land. Such uncertainty is precisely the outcome desired by Federal and State governments in order to discourage agreement making with Aboriginal people.

These developments in relations between indigenous and non-indigenous Australians are evidence of creative thinking by those involved in grappling with the legacy of the Australian frontier. While the many attempts at treating with Aborigines in colonial times and in the early Twentieth Century were not translated into enduring outcomes it is clear that the need for agreements is both desirable and appropriate for several reasons, although there is formidable resistance to agreement making with Aboriginal people. The agreements negotiated since the 1970s are evidence of a willingness to do what the 'colonial settlers' were unable to countenance, and that is acknowledge that another group of people were the owners and custodians of the lands and waters of Australia, and that, their descendants have a right to the possession, use and enjoyment of those lands and waters and to govern, within the limits of Australian law, their use and access by others, and to benefit from that use and access by others, as would any other group of people in rightful possession of a place.

Historically, settler Australians have grappled with the problem of what to do about the Aborigines. There is a persistent unwillingness to acknowledge that, in Australia, the rights of indigenous people are inferior to those in the United States, Canada and New Zealand.

In particular, the impression one gains from reading some of the contributions to 1988 Institute of Public Affairs publication on an Aboriginal Treaty is that Australian dealings with Aboriginal people should be quarantined from world history. It is as if none of the treaty making and similar arrangements in the comparable settler states occurred, and if it did, no relevance could be drawn for Australian circumstances. John Howard wrote in that collection, 'I regard a treaty as a recipe for separatism.' He announced his suspicion that the treaty demands of Aborigines were nothing more than disguised attempts to obtain "massive compensation". Such widely held views, especially among committed monarchists, also fail the test of historical accuracy in ignoring the 1769 Instructions of King George III to Captain Cook and others under his command to:

. . . with the consent of the Natives to take possession, in the name of the King of Great Britain, of convenient situation in such countries as you may discover, that have not already been discovered or visited by any other European Power . . . But if you find the countries so discovered are uninhabited you are to take possession of them for His Majesty.

This failure to obtain consent in a range of matters throughout Australian history is referred to by Aboriginal leaders as the 'unfinished business' in their relations with the state.

Around the globe, for the last two centuries with the rise and decline of the 'blood and soil' doctrine of nation state and sovereignty, the twinned ideas of nation state and sovereignty have been challenged. As legal history scholar, Joaquin Varela Suanzes, has noted, Britain itself has not been free of serious challenges to the idea of sovereignty:

On the other hand, there is no doubt that during the current century the principle of Parliamentary sovereignty has had to face new and very difficult challenges. Particularly three: firstly that faced by the 1937 Statute of Westminster which compelled the reconsideration of the relationship between the British parliament and the Commonwealth [285] secondly that caused by Britain joining the European Economic Community in 1972, which put on the table the no less problematic relationship between the sovereignty of the British Parliament and the primacy of European Community Law[286] thirdly that implied by the approval in 1997 of the Autonomy polls in Wales and Scotland, which have compelled a redefinition of the role of the Parliament of Westminster and its relationship with the two new legislative assemblies[287] Such challenges have forced a reconsideration of the validity of Parliamentary sovereignty in Great Britain today[288] where the debate regarding sovereignty has acquired great political importance and substantial academic interest . . .

Historian Henry Reynolds has brought a clarity of understanding to the issue of sovereignty in Australia. He observes:

What has been conspicuously lacking in the assessment of Aboriginal history is an appreciation that the Aboriginal tribes were, in effect, small nations which had long traditions of complex 'international' relations. They made war and peace, negotiated treaties, settled conflicts, arranged marriages and organized access to resources and right of way across territories.

In his study of Aboriginal Sovereignty, he clarifies the confusion in the conflation of two separate notions: nation and state. He both distinguishes between them and examines the evidence for a conceptualisation of aboriginal sovereignty. His conclusion is that sovereignty in Australia can be understood as residing within the distinct indigenous and settler nations, and as such compatible within the framework of the sovereign state. Such an arrangement need not be regarded as threatening the dismemberment of the existing state, or as separatism. As arrangements elsewhere in the world demonstrate, there is compatibility between a nation's sovereignty and a state's sovereignty. Therefore, when we examine the objections to the idea of a treaty with Aboriginal people, none of the grounds for refusal remain persuasive.

The current treaty processes in Canada and the Canadian constitutional entrenchment of treaties and agreements provide a model favoured by many Aboriginal people in these circumstances. There is no evidence that there has been any detriment caused either to Canadian sovereignty nor to the polity by these arrangements. That many recent agreements are affirmed by the Canadian Constitution is evidence that there are alternatives to the limited discursive framework of the legal canon in Australia.

Adopting such a process would open up the possibility for alternative arrangements in a post frontier Australia that would accord a status of full equality to the traditional laws of indigenous peoples by mutual agreement. Such a polity would thereby include indigenous people within the civitas on a voluntary basis, rather than by coercion as a result of historical events. In any case, it is clear that the anomaly of Aboriginal status remains one that confounds agreement making, and contributes to the insecurity felt among parties to such as agreements while governments refuse to acknowledge or affirm many of the agreements that have been negotiated in the last two decades.

Future governments may consider the possibilities for legislation supported by Constitutional entrenchment to overcome the monstrous injustice involved in the seizure and dominion of Aboriginal territory. The lack of consent and absence of agreements or treaties, remains a stain on Australian history and the chief obstacle to constructing an honourable place for indigenous Australians in the modern state

Source:University Of Melbourne

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