SUBMISSION TO THE GOVERNOR GENERAL’S ESSAY COMPETITION 2013-2014

In addressing the Parliament on the passing of the 2013 Aboriginal and Torres Strait Islander Peoples Recognition Bill, the Leader of the Opposition, the Hon. Tony Abbott MP, said:

“We only have to look across the Tasman to see how it all could have been done so much better. Thanks to the Treaty of Waitangi in New Zealand two peoples became one nation.”

TREATIES

 “Recognition of their presence is no mere platitude. The history of Australia’s Indigenous people dwarfs, in its temporal sweep, the history that gave rise to the Constitution under which this Court was created.”

• Chief Justice Robert French[1]

I Introduction

The call for a treaty has waxed and waned over the last 25 years, but it has never once fallen silent. [2] In February last year the Opposition Leader who has since become our Prime Minister, Tony Abbott, lent his own voice to the choir. Supporting the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 (Cth), he invoked New Zealand’s Te Tiriti O Waitangi, proclaiming,

We only have to look across the Tasman to see how it all could have been done so much better. Thanks to the Treaty of Waitangi in New Zealand two peoples became one nation.[3]

Twelve months later, in this year’s first issue of the Indigenous Law Bulletin, the renowned Australian Constitutional scholar, Professor George Williams, endorsed this call.[4] ‘By a treaty,’ he elaborated, ‘I mean an agreement between governments and Aboriginal peoples’ that would serve as a ‘starting point of acknowledgement [and a] process of negotiation [towards o]utcomes in the form of rights, obligations and opportunities.’[5]

On June 9 this year, former actor, nun and long-time Arrernte activist Rosalie Kunoth-Monks appeared on the Australian talk show, Q&A.[6] Asked to comment on Utopia, John Pilger’s controversial documentary about her home township of the same name,[7] she delivered a rousing speech in Arrernte and English on the insidious nature of assimilation and its devastating perpetuation in the 21^st Century. Asserting her culture and the life of her language, she proclaimed,

I am not an Aboriginal or, indeed, Indigenous. I am Arrernte, Alyawarre, First Nations person, a sovereign person from this country. Apmer nhenheng-ntyelarl ayeng arratek[8]… Nobody has entered into a treaty or talked to me about who I am. I am Arrernte Alyawarre female elder from this country. Please remember that. I am not the problem.[9]

Her protest was subtle, nuanced, and apt to be lost in the most immediately recognisable understanding of Indigenous resistance to assimilation. It would be easy to group hers with the classic Indigenous resistance to assimilation into mainstream Australia. But this would be to limit her on the basis of our own assumptions, for her protest went further than that. Hers was also a cry against the Orientalist[10] push by mainstream Australia to assimilate this country’s Indigenous cultures into one another.

Her critique is ripe for application to the call for treaty. By drawing on the post-colonial analysis of Makau wa Mutua, that is what this essay will seek to do. First, however, it deals with my contention that the awkward slogan of “one nation”[11] is one that must be treated with great caution in Australia, and not just for historico-political reasons. It then explores Mutua’s critique and the viability of its application to the Australian context, before emphasising the need for voluntary, consensual Indigenous polities with a meaningful form of sovereignty before any treaty should be considered. It shall be seen that while treaties may indeed be capable of advancing the causes of First Nations, they must be approached with caution. To be effective, separate treaties with Australia must be entered into by each fully sovereign First Nation on its own terms. Only then can Australia consider itself to protect and encompass the diversity within it.

II “One Nation”

In his essay, Professor Williams adopted Mr Abbott’s tone to declare that ‘[n]ow is the time to take the steps that would finally unite us as one people.’[12] This essay rejects any suggestion that assimilation may still be a viable means of supporting the citizens of Australia’s First Nations to determine and fulfil their own destiny.[13] That is not to say that Professor Williams intended any such interpretation to be drawn from his words. The fairest understanding of his comment is one that reads it in light of his work. Fairly, he should be understood as having spoken of ‘us as one people’[14] in the “one but many”[15] sense that multiculturalism would support. Nevertheless, many of the possible understandings that can be drawn from that sentence are worrying. Language and the rhetoric of public discourse are critical to informing the endoxa, or enthymematic presumptions, of a community.[16] In this delicate and contentious field, sentiments that could easily be cited as supporting assimilation should be avoided. If Australia must be described as “one”, it should be made clear that our country is federal not only in its formal political structure, but in its constitution by a variety of cultural groups with diverse aspirations and values. While this should be reflected in our Constitution, this essay seeks to establish that it must also be reflected in the political organisation of Australia’s First Nations. Only then can Indigenous and non-Indigenous Australians become ‘one’ in a meaningful but non-assimilationist sense, that maintains and appreciates that which makes us different.

III Alienation and Loss in Post-Colonial Societies

Critical international legal scholar Makau wa Mutua has written extensively on the colonial and post-colonial relationship between Europe and Africa.[17] He emphasises the need to prioritise ‘pre-colonial entities’ in the latter’s struggle to recover from the imprint of the former on its laws, society and boundaries.[18] As he details, the system by which European states recognised one another’s sovereignty – each state thereby securing its own, both against one another and over its subjects – necessitated the development of legal doctrines and rules.[19] As these rules were invented, they were carried to colonies and manipulated in order to justify the subjugation of their Indigenous populations. [20] Treaties, consistently one-sided and nonsensical in their attempt to bind polities the very existence of which they denied, were a crucial aspect of this oppressive machinery.[21]

As in Africa, the loss of sovereignty over pre-colonial Australian structures and alienation are ‘linked like Siamese twins.’[22] Mutua’s call for ‘norm re-examination and reformulation, which will reconnect the continent to many of the pre-colonial ideals of community… social organization [and] democratization’,[23] resonates here too. If Australia’s first peoples are to secure themselves against and recover from the imprint of imperialism and its assimilative force, cultural preservation is essential. This must be achieved through the recognition and rehabilitation of pre-colonial entities.

IV Sovereignty First

As Professor Williams states, ‘a place in the Australian nation cannot be forced upon Aboriginal people.’[24] Consultation is worthwhile, but not enough.[25] Where alienation or dysfunction exist in First Nations communities, they must be responded to with First Nations solutions. If these are to prevail, their source must be First Nations values and culture. To the extent that the Australian state is involved, it must not be as a sovereign governing its citizens, but as an entity fully aware, at last, of its destructive impact on that which predates it. The Australian state must desire to honour the language of reconciliation by co-operating with the will of those to whom it is being held accountable.

A treaty is not an apology, nor is it an act of mercy. It is a coming together of two sovereign entities. While a treaty system may be worthwhile in achieving the ends discussed above, it must be remembered that the treaty is a western legal construct. Like a contract, a treaty connotes consent and a fair bargain. A treaty may be seen to retrospectively legitimise Australia’s historical oppression of its first people. It may also be seen to imply assent to the status quo that emerges from it. One should therefore not be entered into for mere symbolic value or its own sake. A treaty should only be entered into cautiously, and only if it confers real and substantive benefits to First Nations.

It follows from this that a treaty could not meet these conditions. A single treaty would be an unworkable token incapable of representing or serving the multiplicity of voices and situations of Indigenous Australia. A single treaty would continue, as Australian governments have consistently done, to treat Indigenous Australia as homogenous. To be of any value, many treaties must be entered into – as many treaties as Australia has First Nations. Each must be entered into by the First Nation party on its own terms, not those of the Australian nation, and not those of any other Indigenous nation. The Vienna Convention on the Law of Treaties defines a “treaty” as ‘an international agreement concluded between states’.[26] Anything less, although potentially still domestically enforceable,[27] is meaningless under international law. Entry into a treaty implies mutual respect for the sovereignty of each party. For a treaty to be anything more than a sham, Australia must therefore recognise the sovereignty of each of its First Nations.

To be meaningful, sovereignty would require a system of laws to which the citizens of each First Nation can call themselves both author and subject.[28] Those laws should be the first looked to in any legal conflict that involves the citizens, land or rights of a First Nation. To yield anything meaningful, each treaty must mandate the co-operation of the Australian state with the demands of the First Nations counterparty. This must be achieved by the recognition of Indigenous Australia not as an amorphous whole, and not by treating one community or privileged group as speaking for all, but by allowing each community to constitute itself as a consensual, voluntary and democratic political entity.[29]

V Conclusion

‘Positive change in Australia depends upon Aboriginal people having more control over their own lives.’ [30] In Africa, treaties entered into by states that did not recognise the sovereignty of their counterparties were highly effective tools of dispossession and disenfranchisement.[31] To expect anything else from a similar Australian experiment would be dangerously naïve. Until their sovereignty is recognised and unless they confer real benefits, First Nations should not risk entering into treaties with the Australian States or Commonwealth. As Professor Williams has explored elsewhere, Australia’s federal history since Engineers[32] has shown little promise for non-hierarchical distributions of power.[33] It is therefore unlikely that the Australian legal system would allow co-sovereignty over any of its citizens or territory. But until it does, Australia’s sovereignty over its unrecognised First Nations will symbolise and reinforce the dominance of the hegemonic group over Indigenous Australia. Until these circumstances change, our country will continue to be divided and hostile towards that which makes us different. This should not be acceptable in any society – let alone one that prides itself on egalitarianism and opportunity. Only by nurturing and protecting our pre-colonial values and structures can we progress to a truly post-colonial society. Only then can we call ourselves a united polity that maintains and appreciates that which makes us different.

VI Bibliography

A Articles/Books/Reports

Altman, Jon and Melinda Hinkson (eds), Coercive Reconciliation: Stabilise, Normalise, Exit Aboriginal Australia (Arena Publications Association, 2007)

Blackshield, Tony and George Williams (2010) Australian Constitutional Law and Theory, (The Federation Press, first published 1996, 2010 ed)

Brennan, Sean et al, Treaty (Federation Press, 2005)

Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge (Commonwealth of Australia, 2000)

Golder, Ben, “Law, History, Colonialism: An Orientalist Reading Of Australian Native Title Law” (2004) 9(1) Deakin Law Review 41

Habermas, Jürgen, “Paradigms of Law” (1996) 17(4-5) Cardozo Law Review 771

Latham, Richard, “The Law and the Commonwealth”, in William Keith Hancock, Survey of British Commonwealth Affairs: Problems of Nationality 1918-1936 (Oxford University Press, 1937), vol 1

Maddison, Sarah, Black Politics: Inside the Complexity of Aboriginal Political Culture (Allen & Unwin, 2008)

Manne, Robert (ed), Whitewash: On Keith Windschuttle’s Fabrication of Aboriginal History (Black ink, 2003)

wa Mutua, Makau, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press, 2008)

wa Mutua, Makau, Human Rights NGOs in East Africa: Political and Normative Tensions (University of Pennsylvania Press, 2008)

wa Mutua, Makau, “Savages, Victims, and Saviors: The metaphor of Human Rights” (2001) 42(1) Harvard International Law Journal 201

wa Mutua, Makau, “Why Redraw the Map of Africa: A Moral and Legal Inquiry” (1994-5) 16 Michigan Journal of International Law 1113

Said, Edward, Orientalism (Penguin, 1977)

Sanders, Will, “In the Name of Failure: A Generational Revolution in Indigenous Affairs” in Chris Aulich and Roger Wettenhall (eds), Howard’s Fourth Government (UNSW Press, 2008)

Stringer, Rebecca, “A Nightmare of the Neocolonial Kind: Politics of Suffering in Howard's Northern Territory Intervention” (2007) 6(2) Borderlands <http://www.borderlands.net.au/vol6no2_2007/stringer_intervention.htm>

Tardini, Stefano, “Endoxa and Communities: Grounding Enthymematic Arguments” (2005) Studies in Communication Sciences, Special Issue “Argumentation in Dialogic Action” 279

Watson, Irene, “Aboriginality and the Violence of Colonialism” (2009) 8(1) Borderlands <http://www.borderlands.net.au/vol8no1_2009/iwatson_aboriginality.pdf>

Williams, George, “Does True Reconciliation Require a Treaty?” (2014) 8(10) Indigenous Law Bulletin

B Cases

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

C Treaties

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

D Other

Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 (Cth)

Australian Broadcasting Corporation, “Paedophile rings operating in remote communities: Brough”, Lateline, 16 May 2006

Australian Broadcasting Corporation, “White Australia Still?”, Q&A: Primates, Populism and Utopia, 9 June 2014

Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2013

Transcript of Proceedings, Swearing-in Ceremony, French CJ [2008] HCATrans 318 (High Court of Australia, 1 September 2008)

Utopia (Directed by John Pilger, Dartmouth Films, 2014)

Woodley, Bruce and Dobe Newton, “I am Australian”, performed by Woodley et al, I am Australian (1987, EMI Australia)

Yunupingu, Mandawuy et al, “Treaty”, performed by Yothu Yindi, Tribal Voice (Mushroom Records: 1991)