Newly appointed Senator for Western Australia, Pat Dodson, in his first week on the job, has raised the thorny political question of treaty.
'We know treaty is a big discussion in the community, we know constitutional recognition is a big discussion in the community,' Senator Dodson said. 'They're not mutually exclusive matters.'
Senator Dodson has brought into the mainstream conversation a clear statement of the real debate for Aboriginal and Torres Strait Islander communities.
This political recognition is, I think, an important step for the movement that is gaining momentum — a movement that challenges both the paramountcy of constitutional recognition, and the binary of recognition vs treaty.
In 2013 I was at the Garma Festival when the Recognise team came to town following a nation-wide road show garnering support for the movement to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. In the evening bungkl (a community dance), the Recognise team entered the festival with locals and dignitaries alike.
The festival hosted panel discussions on the Recognise movement and its aims, alongside the Expert Panel into Constitutional Recognition explaining its own recommendations for reform. There was an air of excitement about the ideas presented, and a lot of support.
I myself, a white lawyer (not expert in matters of the constitution), supported the Expert Panel recommendations as an appropriately ambitious constitutional reform agenda.
By the following year however, I was observing resistance to the idea of recognition — not just by mainstream commentators, but more importantly, by Indigenous Australians. It started with a conversation with a young Aboriginal man, a former student of mine, who was instead demanding treaty and who saw recognition as a trap.
"To promote this outcome will require well-meaning non-Indigenous Australians to think twice about signing up to slick campaigns."
From this point I became alert to voices outside mainstream media. As time passed, I became less certain about the form of constitutional recognition being promoted. Rejection of Recognise became more visible to me, an interested outsider in the debate. The calls for treaty that have reached 'mainstream' audiences have become stronger, culminating with Dodson's recent comments.
It is easy for me to rationalise both questions — of 'treaty' and of 'recognition', which I prefer to call constitutional reform — as legal problems. I see treaty as necessary to resolve the gap of legitimacy in the existing sovereign structure. Aboriginal and Torres Strait Islander nations have never ceded sovereignty, and the nation we call Australia has been constructed over the top of existing nations. But depending on the terms of any treaty (or rather, treaties), the Commonwealth would still require the powers to enact the laws that would carry it out.
Constitutional reform is therefore desirable to ensure adequate power for the making of laws that will advance Aboriginal and Torres Strait Islander Australians, and concomitantly to entrench their human rights protections that have consistently been (and remain) at risk through the exercise of government power. That is, the Commonwealth Parliament must pay heed to the human rights of Indigenous Australians while making laws.
The rationale for such reform is the appropriate inclusion of Indigenous Australians within the governance framework of the Commonwealth at least partly because of the exclusion of Indigenous Australians for so long.
In short, I see the need for both treaty and constitutional reform, which support each other in promoting justice for Aboriginal and Torres Strait Islander Australians. But the limitations of my understanding are both that I am a lawyer, and that I am not an Indigenous Australian. As a question of political strategy and identity, I need to heed the diverse voices of Indigenous Australia in understanding what is truly at stake.
Outside the framework of law however, the questions of recognition and treaty bear so much more weight for Aboriginal and Torres Strait Islander Australians who have borne the brunt of unjust law for over two centuries, than for non-Indigenous Australians. Acknowledging this injustice demands that significant, meaningful, sustainable reform must occur through a lens of self-determination and ultimately, just settlement with Aboriginal and Torres Strait Islander nations.
To promote this outcome will require well-meaning non-Indigenous Australians to think twice about signing up to slick campaigns, instead listening to the diverse voices in Indigenous communities nation wide — and calling on our politicians to do the same.
Kate Galloway is a legal academic with an interest in social justice.