Treaty, Sovereignty and Self-Determination

The Road To Treaty - Glenn Loughrey - 2017

There is much discussion in the media about the proposal to recognise first nation peoples in the Australian Constitution. This was a project commenced in 2011 by a government headed by Prime Minister John Howard.  The proposal was to add a suitable clause in the preamble and at other points within the constitution with the stated outcome of removing race from the constitution. Once suitable statements are agreed upon, the suggestions will be put to a referendum and if successful will see the appropriate clauses being changed.

So is recognition in the constitution an appropriate option? Only if it is meaningful and provides not just a nod and a wink but a true devolution of the power of self determination to those recognised. In the suggestions we have at present this seems unlikely.  What is proposed is basically adding recognition to a colonial document with no mechanisms for the proper empowerment of those who have never been included in the colonial project.,

In response to this project there is a groundswell of, primarily, First Nations People calling not for recognition in the constitution but for a treaty or treaties recognising sovereignty and enabling full self-determination. For many FNP recognition continues the colonial project of assimilation and fails to address the question of invasions, land wars and the subsequent trauma and racism that continue today. For these people, these questions must be addressed on equal terms by people who possess sovereignty in their particular areas of governance; the Federal government for the well being of Australia as a while and the various clans and tribes for the governance of their specific country and peoples.

It is correct, to a point, to say State governments cannot by reason of their existence enact and enforce a treaty with anyone, only agreements or contracts. The only seat of power capable of enacting a treaty is the Federal government and only then after it is agreed to by the Queens representative. Once again, as we have seen in the recent American experience, this can and will change depending upon the focus of the government in power.

Yet as Michael Anderson states: "State Governments can negotiate treaties with their First Nations, but can only negotiate on matters that are within their powers to do under their respective State constitutions. On matters that are shared between them, like water, and natural resources the Commonwealth would have to enjoin with the Treaty negotiations to agree on these matters which overlap." He goes on: "As a Peoples, First nations Peoples who negotiate agreements of any kind can under international law have that agreement/Treaty registered with the UN under International law. Moreover, any Treaty that may be negotiated will have to be guided by all the Human Rights and the terms of the Decolonalisation Committee process under the UN.”

In terms of concerns regarding the enforceability of treaty (ies), retired judge of the Family Court, Alastair Nicholson suggests "it is true that the only way that any treaty can be made binding upon a future Parliament is that it is supported by some Constitutional guarantee and even then there are provisions to amend a Constitution, albeit with difficulty in the Australian context.”

He goes on to suggest several possible ways in which a constitutional guarantee could be achieved. 

"One could be that the negotiation of a treaty, enforced by legislation, could be a precursor to an acceptance of the need for constitutional change. This could be strengthened by the inclusion of a fixed time provided in the legislation for the holding of a referendum to introduce such constitutional change.

Another would be if the Constitution was to be amended to authorise the Federal Government to enter into such a treaty, which would be binding on all parties and the States and Territories and could not be changed by legislation without the agreement of all parties and/or by a referendum in accordance with the Constitution. The proposal is not new. It appears to have been first made in the early 1980s, and in 1983 the Senate Standing Committee on Constitutional and Legal Affairs recommended the insertion of such a provision in the Constitution.

It is based upon a model that is already in s105A of the Constitution in relation to State Government debt. This model could constitutionally bind Federal and State and Territory Parliaments to act consistently in accordance with the terms of the treaty."

So what is it that we need to do? It has been suggested cultural respect is the place to meet, a place where people from both camps can applaud the others achievements, in other words, pat each other on the back, grab a stubby and a sausage and watch the footy together? If this is the way forward then I suggest we have trivialised the situation into absurdity.

The answer is indeed hard work but it is the hard work of sovereign respect, the respect due to equals in a process honouring of the history and story of both and their respected places in the fabric of our society. The idea of any form of permanent agreement is impossible while ever one side holds all the aces in the pack and continues to treat the others as losers.

It will involve the hard work of acknowledgement -the acknowledgement of country and the ancestors and the fact that one party stole it and has no intention of returning it any time soon. It is the hard work of sitting in deep silence with one another and discovering what we share and how we share it with equity and justice. The hard work of recognising our own complicity, black and white, in the ongoing injustice indigenous people experience and finding pathways forward. 

It is the hard work of a long time as there is no easy or quick fix to the hurt and tragedy, the mistakes and missteps and the communal failure to face the truth about our shared past. It will take a level of honesty and openness hitherto unseen in this struggle but it must occur if we are to find a lasting solution, be it recognition, treaty or a third way no one has thought of yet.

As one who comes from an area where tribal people where all but exterminated by mid 1800's the remainder moved out in 1900, I understand this issue is emotive, painful and embedded in the indigenous psyche and can not be resolved according to a western timetable or legal framework.

It can only be resolved by time, deep listening and a willingness to stay with the process for as long as it needs. Then and only then can a treaty be possible.