Forget the Preamble, what Australia needs is a Treaty

The new Coalition Government has been making noises on a referendum to change the constitution to recognise First Australians. The wording has yet to be announced but Prime Minister Tony Abbott is saying it would “complete our constitution rather than change it.” What Abbott means by completion rather than change is not clear but I assume it means the change will be ornamental rather than have legal force. According to deputy Julie Bishop, the government wants a “deep discussion” with the Australian people before agreeing to the wording but here’s a free tip if the changes are purely for show: Forget it.

I say forget it, not because Australian constitutional referendums usually fail, but because there are genuine things constitutional change could do to improve the situation of First Australians. The most profound change would be to turn the preamble into a Treaty, common enough in other settler countries, but the first ever in 225 years of European occupation of Australia. Unlike a flowery but pointless preamble, a treaty would acknowledge past failures and injustices and show sincere desire for a better future and more just relationship.

A Treaty is a political document between sovereign people and it was this difficulty that saw John Howard reject the idea in 1988 as an absurd proposition that “a nation should make a treaty with some of its own citizens.” The idea is far from absurd to many Indigenous people who see it as the first step in the recognition of the wars and dispossession of their country and the genocide that followed. Howard’s assimilatory ideas in the face of historical evidence were blatantly contradictory. His culture of forgetting was shared by his immigration Minister Phillip Ruddock who told ABC in October 1998 there couldn’t be a treaty because there never had been a war in this country.

Ruddock’s idea of war was flawed as was his view of a Treaty. A Treaty (also known by its Yolgnu name Makarrata) was long seen as an appropriate way for whites to acknowledge Aboriginal equality and prior ownership. In 1979 an Aboriginal treaty committee was formed by prominent mostly left-wing whites. Prime Minister Malcolm Fraser offered to discuss treaty conditions with Aborigines while eight years later his successor Bob Hawke spoke of ‘a compact of understanding’. This whitefella idea of a treaty was rejected by the Federation of Aboriginal Land Councils because of insufficient consultation with Aborigines, doubts about its significance and consequences, and because it would legalise occupation and use of sovereign Aboriginal lands by the Australian settler state. The Aboriginal Sovereign Treaty campaign in 1988 called for sovereign recognition and treaty. It was enshrined in the Barunga Statement presented to Hawke.

Barunga called for a treaty, a national system of land rights, compensation for land loss, an end to discrimination, Aboriginal self-determination and protection of civil, political, economic, social and cultural rights. Hawke promised a treaty but it faded from the agenda, replaced by land rights in the 1990s. John Howard fought land rights and firmly rejected treaty recommendation in favour of what he called ‘practical reconciliation‘. There was no reason the two couldn’t co-exist and indeed true practical reconciliation is impossible without a treaty framework. Australia has never negotiated the basic terms of peaceful coexistence between the first peoples of this continent and those who followed. Australia’s first peoples remain on the lowest rung of our society and are largely locked out of the wealth of an affluent country.

A Treaty that might address these failings has mutual obligations. For the Government it would mean responsibility to long-term funding and administrative support for education and health. For the Indigenous community it would mean taking primary responsibility for child protection, community justice and substance abuse. There are three key elements to a treaty: a) a starting point of acknowledgement b) a process of negotiation and c) outcomes in rights, obligations and opportunities. The hardest will be working out outcomes for a Treaty. A Treaty must be on the reasonable basis Aboriginal and Torres Strait Islander societies have been injured and harmed throughout the colonisation process and just recompense is owed. This means giving away power or land or sovereignty – none of which will be easy. It might mean governments stop fighting land claims or guaranteeing Indigenous seats in parliament or returning Aboriginal reserves or other Crown land to original owners. There will be resistance to some or all of these. But if not addressed, we will merely be coping by forgetting and moving an age-old moral problem to the next generation. Without a Treaty, Australia’s Aboriginal and Torres Islander people have difficulty advancing claims of title, compensation and sovereignty.

A Treaty is not just an important opportunity for blackfellas. It is also important to non-Indigenous people to come to grips with a challenging issue of great difficulty and complexity. Unlike a preamble which goes nowhere, a Treaty would help bridge the gulf, enable mutual understanding, and provide better public policy and better use of money. A Treaty would eventually be a source of pride, like Waitangi is to modern New Zealand. As a way of righting wrongs, it can also help in building a better nation, more secure in its identity, its symbols and values.

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10 thoughts on “Forget the Preamble, what Australia needs is a Treaty

  1. Derek
    while I appreciate your compassion you seem to be ignoring the ultimate lesson of history which is the reality that no group of people can own a land unless they can exclude other claimants from it. The indigenous people were unable to exclude the British colonists so they have lost the ownership of this land. I know that seems harsh but that is the nature of the world,

    1. I tend to agree with you about the pitiless nature of what happened since 1788. However the conquest of Australia not a view shared by the British, Colonial and successor governments because it would have meant an acknowledgement there was a war to make that conquest happen. The colonists preferred to push the line the natives had no concept of ownership and the continent was ‘desert waste’ ready to be occupied, something that eventually became the doctrine of ‘terra nullius’. The Mabo and Wik High Court decisions of the 1990s blew some of that fiction away by showing native title was never fully extinguished by pastoral leases though it refused to countenance opposition to the claims of possession by Cook in 1770 and Phillip in 1788 in the name of the King. Even if we go back to the notion of conquest, it doesn’t mean we cannot have a retrospective Treaty attempting to right some of the more egregious wrongs.

      1. Derek

        While I acknowledge the historical incidents and reasoning you mention I tend to think that at this remove there is little to gain and much divisiveness that could result from any attempt to codify the reality of the current situation in a treaty.

        Secondly just who would the Australian government negotiate a treaty with? My understanding is that there was never any concept of a single nation before 1788 and since then there is still no representative leadership structure with which a treaty could be created.
        Surely to be tied to a culture of complaint about past wrongdoing can only perpetuate the animosities that are counter productive to a building a better future for all Australians no matter what their providence or background. I tend to think that we have got to a point where we should be looking to the future rather then trying to re-invent the past.

  2. At last! Somebody has spelt it out. It was feeble enough with Hawke and Ruddock, but now we have the added hypocrisy of the Abbott Government. Abbott mouths his platitudes and poses as the great saviour of the poor (?inferior) Aboriginal people. He appoints puppet of the nuclear industry as top Aboriginal advisor. Abbott can depended upon to run Aboriginal Affairs in the true interests of the multinational mining companies. The Preamble to the Constitution sounds lovely, but it’s all smoke and mirrors.

  3. First Australian have been asking government to allow them to vote in their own representatives for over half a century, if they were allowed to any negotiations would have a clear process, but government still hand pick the people who tow the line, its a poor argument to use the lack of leaders endorsed by their community’s as reasoning, ignoring key issues until they go away is not a mature response for a nation claiming to be a great nation, to me it indicates we havent found out who we are yet, their in nothing more divisive than blindly hanging on to the status quo

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