Speech by Geoff Clark, ATSIC Chairman, at Latrobe University on Treaty
>From Here To A Treaty
IN FAVOUR OF A TREATY
Reconciliation is on everybody's lips. That much is obvious from the
outstanding turnout at the reconciliation walk in Sydney. There have
been
equally significant walks for reconciliation in other capital cities and
regional areas.
But how do we achieve reconciliation? Some argue it is enough if the
goodwill expressed by walkers for reconciliation is captured in a
document
of reconciliation. For them it is the show of public support that is
both
the beginning and the end. I disagree.
Reconciliation must have more substance. The goodwill expressed
provides
the mandate to achieve reconciliation. It virtually begs for some
strategy to translate the goodwill into something tangible - something
that will bring about reconciliation as a result of the strategy.
I said at the Sydney walk for reconciliation that a treaty was the
appropriate vehicle, and I am even more convinced about it now.
As each term of government concludes we again remind ourselves that
governance of Aboriginal affairs in Australia is ultimately a shrewd
game
between the major political parties.
Let me quickly recount some recent history to make my point.
In 1967, as significant step forward began with the change in the
Constitution to remove discriminatory provisions, especially the removal
of the restriction on Commonwealth legislation for Aboriginal and Torres
Strait Islander people.
This marked the period of the Land Rights campaigns, of the late 1960's
and the 1970's.
In the space of a decade, mostly between the years 1973 to 1976, we saw
for the first time in Australia, real steps taken to recognise equal
rights in Australia. The government passed legislation such as:
The Aboriginal Loans Commission Act 1974;
The Aboriginal Land Fund Act 1974;
The Racial Discrimination Act 1975; and
The Land Rights (Northern Territory) Act 1976.
Also the government passed two laws which served to override State
governments. They were:
The Aboriginal and Torres Strait Islanders (Queensland Discriminatory
Laws) Act 1975; and
The Aboriginals and Torres Strait Islanders (Queensland Reserves and
Communities Self-Management) Act 1978.
The now-departed Senator Neville Bonner (with my respects to his spirit
and his memory) as a conservative member of the Senate said in a speech
to
the Senate on 19 September 1974:
I do not deny the present government, in many areas of Aboriginal and
Torres Strait Islander affairs, has instigated superbly beneficial
schemes
to improve my fellow Aborigines' and Torres Strait Islanders' way of
life
within our broader Australian community. But it is truly to no avail,
dignity-wise, when it is but an allocating of money for a disadvantaged
people because it is but a form of charity. We, the indigenous people,
for far too long have been the recipients of charity - the charity of
the
government of the day, charity, with its modern day connotations
implying
a handout mentality....
I am asking for an amount of money to be set aside from the annual
national budget which will become the true entitlement of the Aborigines
and Torres Strait Islanders...
By the end of the 1970s discussion in Aboriginal affairs had moved onto
a
treaty. The National Aboriginal Conference in 1979 set out its
procedures
for establishing a treaty.
The NAC proposed to summon a convention of representatives and
negotiators
chosen by communities; organise the negotiations with government; and
submit a Treaty, Covenant or Convention to Parliament for ratification;
The NAC wanted the treaty to provide:
1. The protection of languages;
2. Restoration of land in accordance with the Woodward Commission
recommendations;
3. Regulation of mining and exploration on Aboriginal land;
4. Compensation for loss of lands and way of life; and
5. Control of Aboriginal affairs.
Then, in August 1979, the Aboriginal Treaty Committee - led by Dr Coombs
-
placed an advertisement in the National Times headed:
"We Call For A Treaty Within Australia, Between Australians"
The treaty petition was signed by many noted academics, historians,
doctors, unionists, authors, artists, economists and other
community-minded people.
So, clearly, by 1980, Australia had examined the its history and
foundation, and had at last arrived to face the challenge for a fair,
just
and dignified nation.
So where has the movement for a treaty fallen down? I myself am not
sure.
I believe that the examination of the issues had occurred and the 'cloak
of ignorance' had been lifted. The next steps relied upon the political
will.
We know that in 1983 the Australian Labor Party was elected to
government,
and that it would enjoy thirteen year in power. However the delivery of
a
Labor government did not necessarily advance the treaty cause.
The Prime Minister considered from the outset that mention of a 'treaty'
was too radical for the public and contemplated some other expression,
like 'compact'.
The worst blow to the Aboriginal rights movement was the defeat, within
the Labor Party itself, of national Land Rights legislation. In 1985
the
government simply decided that, to proceed with national land rights
legislation, was to risk the chances of the Bourke government in Western
Australia being returned to office.
Because of Labor's pragmatic approach the national land rights
legislation
has disappeared entirely, and we have inherited, against our will, a
much
weaker law known as the Native Title Act 1993.
I say 'much weaker' because the Labor government's national land rights
legislation was to be founded upon five principles:
1. Ownership of Aboriginal reserve lands and ability to claim vacant
crown lands;
2. Compensation;
3. Protection of sites of cultural heritage significance;
4. Control of mining; and
5. Access to mining royalty equivalents
Under the Labor government which survived to 1996, there was a second
reversal of policy. The Aboriginal Social Justice Package was promised
by
Prime Minister Keating in his second reading speech when the Native
Title
Bill was introduced into parliament in 1993.
He stated:
We will, in consultation and negotiations with ATSIC and Aboriginal and
Torres Strait Islander organisations, look at ways to increase the
participation of Aboriginal people in Australian economic life and to
safeguard and develop Aboriginal and Torres Strait Islander culture. We
will invite ATSIC and the Council for Aboriginal Reconciliation, in
consultation with Aboriginal and Torres Strait Islander organisations,
to
develop proposals and to provide formal advice... What I will be
looking
for is constructive, realistic proposals, which will develop a positive
community consensus and contribute to a lasting reconciliation.
In 1995 ATSIC presented to the Prime Minister its formal report setting
out the further measures that the government should consider to address
the situation of Aboriginal and Torres Strait Islander people. The
report
stated:
Our focus is on institutional, structural, collaborative, cooperative
reform. It is about a fundamental shift from welfare to basic rights,
from dependence to autonomy, from government assistance to power.
Central
to the social justice agenda is self-determination. (Preface,
Recognition
Rights & Reform, ATSIC, 1995)
Again, this proposal was to fail. The government formally announced
some
years later that the 'social justice package' was no longer a project of
government.
The information that I have presented here is selective, but I hope that
it is sufficient to make my point.
In summary, I have proposed that a legitimate movement for a treaty was
active in the late 1970's. That movement has been diverted through
other
agendas, mostly led by government, which continually returned to the
same
proposition - that a national settlement had to be made - only to fail
each time.
Once again we find ourselves at the edge of going onwards to true
self-determination, but we are at risk of turning back for some other
option. There is no other option, for all endeavours come back to the
same issues. Issues of Aboriginal control, respect for indigenous
rights,
preservation of Aboriginal and Torres Strait Islander ways of life, and
our economic independence.
I intentionally refer to a treaty, because I do not want the nervous
people, who say that the 'treaty' word will only scare away support, to
divert our agenda again. I am not convinced that each time we have
turned
away from the proposition of a true settlement that we have gotten
closer
to a settlement by other means.
The diversionary tactics do us no favours. I question whether those who
seek to divert the agenda are in fact being consumed by their own
importance, their own relevance and their own perspective, rather than
worrying about those who are the disadvantaged and powerless.
I turn to the issue of what is a treaty. This has been one of the scare
tactics - to say that a treaty is a legal impossibility. I will try to
give some explanation.
WHAT IS A TREATY
A treaty is an agreement between two parties at the highest level
seeking
to establish a relationship between themselves. In this case it would
be
the Australian Government with Aboriginal and Torres Strait Islander
peoples.
That relationship could include the role and responsibility of federal,
state and local governments on the one hand, and Aboriginal communities
on
the other, when dealing with issues directly affecting Aboriginal
people.
For instance, it could spell out the scope for Aboriginal communities to
make decisions over their land including access and economic development
through to the type of facilities and lifestyle the people wish to have.
It could spell out the limits of Aboriginal autonomy, or
self-government,
or self-rule and indicate the extent to which Aboriginal decision-making
is subject to national or local laws.
The treaty could provide for national or state representation of
Aborigines. Should there be a number of seats reserved in the
parliament
for indigenous people as is the case in New Zealand? Or is it better to
set up new electoral boundaries in which Aborigines form at least fifty
percent of the electorate. It is not important which of these is
adopted.
It is more important that some mechanism provide for indigenous
representation at the national level. The treaty could establish this.
The work on this has all been done. The Nunavit agreement, the north
America treaties and even the practical application of the treaty of
Waitangi in New Zealand affords models to look at. We could even look
at
advances in each of the States or Territories within this country to see
if there are models which can be applied nationally within the framework
of a treaty.
Of course land would need to be returned. The treaty might either
stipulate the exact areas of lands to be returned to Aborigines or it
could establish a framework for gradual return of certain lands to
Aboriginal peoples. Common sense suggests unalienated crown land should
be returned to Aboriginal people. Crown lands that are subject to other
interests should also be returned to Aborigines subject to those
interests.
The relationship between native title lands, ILC purchased lands and
land
rights legislation lands could also be easily addressed. Maybe the
weaker
aspects of native title such as loss of rights because of a change of
lifestyle, could be addressed.
The treaty framework can provide for a uniform approach to Aboriginal
cultural practices. For instance, it could clarify the right of
indigenous people to practice their culture in all its forms without
interference from authorities. It might embrace solutions to copyright,
hunting and gathering and intellectual property issues.
The scope of the content of the treaty would be determined by a common
approach to problem solving. In other words a 'lets get it right'
approach.
THE FOUNDATION FOR A TREATY
Prime Minister John Howard stated there cannot be a treaty with
Aborigines
because treaties may only be signed between sovereign states. The
according of citizenship to Aborigines, according to the Prime Minister,
wiped out any legal or political base from which Aborigines could enter
into a treaty. There cannot, he stated, be a treaty between citizens.
What then is the foundation for an Aboriginal rights to treaty with the
Australian Government.
The Prime Minister's statement needs to be examined to see if it has any
validity. No doubt the current federal government is relying on the
well
accepted doctrine that the national government of a territory is the
sole
sovereign. Citizens, or groups of citizens, cannot challenge the
authority of the state in which they live. True.
However, are the indigenous people of this country subject to that
doctrine? The answer rests in examining how we could have got ourselves
in such a messy situation.
It has been argued that the formation of the Australian nation in 1901
vested the sovereign rights of all citizens in the parliament and the
courts. But isn't it true that Aborigines were excluded from the
discussions leading up to the establishment of the 1901 constitution,
and
isn't it also true that the only reference to Aborigines in the 1901
constitution was to exclude us? How can it then be said that Aborigines
gave up any sovereign rights we had to the parliaments and the courts
through the formation of the Constitution in 1901? Such an argument
cannot be sustained. The self-serving declaration by governments and
domestic courts to the effect that Aborigines did lose their sovereign
rights at federation are ineffective.
Statements by successive Australian governments that Aborigines are not
a
sovereign people are not statement of fact or law. They are simply
opinions being expressed by Australia's political leaders. It is no
different from me saying Aborigines do have sovereignty.
There needs to be a review by social, legal and political commentators
of
this outstanding question: Is there a form of 'subsisting' or residual
Aboriginal sovereignty? If it does exist, it clearly provides the basis
for us to sign treaties with anybody.
The High Court decision of 'Mabo' gives further weight to this issue of
surviving sovereignty in Australia's indigenous peoples. Until the Mabo
case in 1992 it was thought Aborigines had no rights in Australia other
than those given by politicians. The underlying message in 'Mabo' was
that Aborigines always had certain rights, but those rights had not been
recognised. The lack of recognition through the domestic courts and the
parliaments over such a long period did not mean those rights did not
exist.
If that is true of common law native title rights, why is it not also
true
of Aboriginal political rights? We clearly owned the land before white
people came here. Despite differences of language and recognition of
territorial boundaries, our differences were not as great as were the
things we had in common. In modern contemporary terms, we were a nation
of people made up of different tribes. That means we were a sovereign
people.
Mabo shows that rights can subsist or continue to exist despite the
extraordinary degree to which a people might be dominated by another.
That domination can continue for hundreds of years. In itself, that
domination does not extinguish the sovereign rights of Aboriginal
people.
Despite these complex possibilities for a treaty in Australia, overseas
experience shows it can be done if the political will is there.
Governments and courts in North America and New Zealand and the several
treaties with Indians in North America all recognise the right of
indigenous peoples to make treaties with the national government.
Indigenous people in those countries are in no different situation that
we
are here. It seems not to be a matter of "can't" but "won't".
There is an incentive for an Australian government to treaty with
Aborigines. It might seriously be to the disadvantage of the Australian
government if it was found Aborigines do have sovereign rights. An
Australian government could sign a treaty to prevent the possibility of
Aboriginal sovereignty being recognised internationally and being
unilaterally acted on locally by indigenous people.
In providing a new political relationship between Aborigines and
government a treaty could also restrict certain rights by indigenous
people, including the acceptance of the power and authority of the
national government. That authority would be subject to the treaty
agreement.
If that were done, why would Aborigines bother pursuing the sovereignty
issue? It would seem there is every incentive for Aborigines to pursue
this subject if Australian governments refused to sign a treaty. From
that point of view, it seems more sensible for government to hedge its
bets by making a treaty with indigenous people now.
Neither a treaty alone, nor return of land alone, nor education alone,
nor
finding jobs for Aborigines in itself is the answer to providing a
decent
future for Aboriginal people. But a collective approach to all of those
issues, which includes clarifying the political rights Aborigines have
in
this country is, in my view, that way to proceed.
PROCESS TO A TREATY
Now I have already mentioned some aspects of how a treaty could be
pursued. The National Aboriginal Conference identified a process
whereby
delegates would be elected and a treaty would be drafted at a Convention
or series of Conventions.
This is a familiar process for Australians, because it reflects the way
the Constitution was developed.
ATSIC, in its 1995 report 'Recognition, Rights & Reform' recommended
that:
The Commonwealth Government agree that the initial stage in the
development of a treaty should be the development of a framework
agreement
negotiated after both indigenous people and Government have developed
settlement principles. [Recommendation 47]
and
The Commonwealth Government agree that a mechanism independent of the
parties should be established, after consultation with ATSIC and the
Aboriginal Reconciliation Council, to manage the reconciliation process.
[Recommendation 49]
On 12 May this year Patrick Dodson presented the Wentworth Lecture
entitled 'Beyond the Mourning Gate - Dealing With Unfinished Business',
during which he made the proposal that an independent 'treaty
commission'
should be established to draft a Treaty between the Australian
Government
and Aboriginal peoples, based upon matters raised by the Reconciliation
Council and any other matters relayed before it.
This Commission of forty people, he proposed, should consist of twenty
people proposed by the government and twenty people proposed by ATSIC.
The Commission is to be established independent of government or 'the
bureaucracy'. To complete the Treaty, Patrick Dodson identified that
the
two parties then choose their representatives to negotiate the treaty,
which would then be placed before the Aboriginal people for
consideration
by referendum.
Taking into account these prior proposals, I have had the opportunity in
the past two months to have held brief counsel with a key group of
Aboriginal people from around the country. Following this counsel the
ATSIC Board of Commissioners has received a briefing on the following
suggestions:
1. That ATSIC establish a treaty committee consisting of Aboriginal and
Torres Strait Islander representatives to devise strategies and
procedures
for the achievement of a Treaty;
2. That ATSIC participate in the development of a 'think tank' or
'think tanks' to promote an informed public debate on the advantages of
achieving a settlement with the Aboriginal and Torres Strait Islander
peoples; and
3. That ATSIC take the initial step of convening a national forum of
the Aboriginal and Torres Strait Islander people to foster support and
unity for a settlement through a treaty.
In the first part of my speech, I identified some ideas for the
composition of the treaty. Let me now give some more coverage to the
issue. I stress that these comments are not the final position, and
that
I expect a 'cross-fertilisation' of ideas, from many experienced and
wise
people in our community, in the forthcoming months which will then shape
the procedures ahead.
Firstly, I am convinced that there must be a national treaty put in
place
before there is any devolution to local or regional treaties.
During the 'Makarrata' debate conducted by the NAC there was a
widespread
view that the various groups of Aboriginal and Torres Strait Islander
people should be negotiating, as sovereign people in there own right,
their own treaties, and without interference from other indigenous
groups.
This became a problem at that time, in the 1980s, and contributed
(although perhaps in only a small way) to the lack of momentum in
obtaining government commitment to the treaty concept.
Further the separate and uncoordinated negotiation of treaties has the
potential:
* to result in unequal results for different groups,
* to lead to omission of fundamental provisions in treaties, and
* to cause a blockage through uncoordinated demands upon government
and professional services.
A national treaty could and should serve as the standard-setting
document
for local or regional treaties. It could ensure that basic elements are
addressed in all treaties. It could ensure that basic rights and
provisions are delivered where other treaties have not or will not be
negotiated.
If a national treaty is to be prepared then it is necessary that the
Aboriginal and Torres Strait Islander people become committed to that
purpose and remain disciplined in following a set course of procedure.
It
is counter-productive for people to 'splinter' from the national agenda,
to claim that they do not accept the national approach. This will
happen
of course. There is no way to prevent it.
But we must stay together as the majority and ensure that the struggle
for
our rights to self-determination as peoples succeeds.
Ladies and Gentlemen, I complete this presentation with this call for
the
Aboriginal and Torres Strait Islander people to begin the process for
the
implementation of the treaty - with or without the government's support.
Thank You.
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