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.

An Aboriginal Christian's Perspective On Treaty, Sovereignty and Constitutional Recognition.

I find this a difficult discussion to take part in. I cringe when I hear the words “Christian perspectives” as if there is such a thing as a Christian view of kindness, justice and compassion that is necessarily preeminent to others. There is only one ethic in the New Testament and that is the all-consuming unconditional love for the other.

I struggle also when I find myself speaking on first nations issues as an individual who has had a privileged white education, who has been dispossessed of his culture and language, and who runs the risk of acting as colonially as those who now rule this land. Yes, I am a Wiradjuri man, but I have no inherent right to speak on behalf of that nation or any of the other sovereign nations now under colonial occupation.

Yet I do have the right to speak on behalf of my own people – ABMT – Aboriginal but not tribal (traditional). As a dispossessed person without connections to traditional language, culture and community I stand in a different place but not alone. My people are many and we are searching for a way to have a voice, to speak into this place but find ourselves impeded by both white and black culture. I receive letters questioning my aboriginality from white culture and I hear indigenous voices questioning it also. “A shame he’s not black.”

As a follower of the way of Christ – kindness, respect and compassion – love; I find myself unable to support constitutional recognition on the grounds that it continues the colonial project of assimilation and erasure. Indigenous people suffered genocide in my hometown with the last reported as being killed in 1876 according to one of the key exterminators, William Cox.

In Amos Oz’ book Judas, the two protagonists are discussing the relationship between Jews and Arabs and come to the conclusion, “The Arabs live with the disaster of their defeat, and the Jews with the dread of their vengeance.” It is a comment, that if we exchange the words appropriate to our situation holds true for the Australia in which we live, ““First Nations people live with the disaster of their defeat, and White Australia with the dread of their vengeance.”

As I child I learnt that white was good, black was not good. My father referred to anybody he deemed a good person as a white person regardless of whether they were white or not. Recently I officiated at a funeral in my hometown. A person who has known me all my life came up and said, “You’re blackfella’s young bloke, you’re young blackfella!.” 61 years later I still had no name, no place other than that of a nameless black fella.

Constitutional recognition enshrines such in the DNA of this country and gives credence to the stereotypes we read and hear each day. It erases any sense of being a real person with real rights. It erases from the national psyche the history of independent nations who have populated, governed and managed this land for 10’s of thousands of years. It continues to recognise these people only as the ‘previous custodians of this country”, if it recognises them at all, as I recently read on a plaque in a church school ground close to here.

As a follower of the way of Christ – kindness, respect and compassion – I support the process required to institute a treaty or a series of treaties acceptable to the sovereign first nations people. Note I have not said we need a treaty now. I have not and cannot advocate for such a thing until we fully understand and undertake the process required to do so. A treaty requires incarnational dialogue in order to overcome the ideologies, prejudices and deep trauma that stands in the way of constructing a workable relationship.

The model for this is breaking into the world of Jesus through which God became present in this world in order to empathise and dialogue with humanity in its own country. This took time, many centuries before God took such a step. It then took Jesus a lifetime to connect, challenge and dialogue with those around him. It has taken the Spirit of Christ many centuries to bring us to where we are to day. The Triune God has patience and we need to bring such patience to the task we face today.

If non-indigenous people are serious about working towards reconciliation then they must not be in a hurry. Simply saying sorry and popping us in the constitution may make you feel better but it doesn’t change much for us. We are still under occupation by a foreign government. To change that, even by a treaty, will require incarnational patience – sitting in the dirt and listening, not to answer or solve, but to hear, co-operate and get out of the way of the process. It begins with the first nations being given the opportunity to come together and agree on what such a treaty should look like. Not an easy task. It won’t happen quickly but it must precede any dialogue with the non-indigenous society. Then dialogue can begin in kindness, respect and compassion, allowing communication and action to reflect a mutual desire for reconciliation.

What about my people? What is their place in this world of exile, disconnect and generational trauma? What are we to do while we undergo this long process toward treaty and reconciliation?

Jeremiah, writing to those in exile in Babylon, provides a blueprint for action:

29:⁴ Thus says the Lord of hosts, the God of Israel, to all the exiles whom I have sent into exile from Jerusalem to Babylon: ⁵ Build houses and live in them; plant gardens and eat what they produce. ⁶ Take wives and have sons and daughters; take wives for your sons, and give your daughters in marriage, that they may bear sons and daughters; multiply there, and do not decrease. ⁷ But seek the welfare of the city where I have sent you into exile, and pray to the Lord on its behalf, for in its welfare you will find your welfare.”

We are in exile but in exile we are not powerless. We are to remain in charge of our own heritage, traditions and dreaming; we are to build up our mob while living off-country in another’s land. We are to seek wellbeing for those we live amongst, in doing so we ensure the well being of our own mob.

This is not giving in to a foreign culture but becoming proud of who we are and who we can become. We are to excel in another culture so we can lead our own people into excellence for their own sake. Instead of responding to stereotypes of politicians, media shock jocks and naysayers, let us celebrate the extraordinary achievement of communities and individuals as they address our issues and find ways to be world leaders in health, education, arts, sports or whatever they turn their hand to. Let us ignore the temptation to blame, hate or attribute guilt to others. Let us avoid the temptation to play the victim.

Jeremiah reminds the exiles that right will win in the end, even though the end may take a long time (the meaning of the word 70), it will come.

^{“ 10} For thus says the Lord: Only when Babylon’s seventy years are completed will I visit you, and I will fulfil to you my promise and bring you back to this place. ¹¹ For surely I know the plans I have for you, says the Lord, plans for your welfare and not for harm, to give you a future with hope.”

 Our people have a long and proud history, one that is still being made. It has not finished. A treaty will be accomplished but let us not allow the desire for such or the push by others for it and/or constitutional recognition prevent us from flourishing now and remaining sovereign in our own being. Let us get on with the business of building pride, respect and community within our mob so there can be no option but a treaty.