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.