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Recognition or treaty ... Why not both?



Newly appointed Senator for Western Australia, Pat Dodson, in his first week on the job, has raised the thorny political question of treaty.

Aboriginal woman with Recognise balloons'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 GallowayKate Galloway is a legal academic with an interest in social justice.

Topic tags: Kate Galloway, Pat Dodson, Recognition, Aboriginal and Torres Strait Islander Australians, treaty



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Existing comments

Thank you Kate Galloway. Surely the debate you have vocalised here is long overdue and the concept of treaty is to me clearly the best way to go. By its very nature, a treaty would recognise the sovereignty (nationhood) of the Aboriginal peoples and would automatically demand constitutional revision or reform. Both the Aboriginal people and the rest of us would be greatly advanced by a treaty. Aboriginal pride would make a quantum leap upwards with all the benefits that would come from that. The non-indigenous of us would finally escape the shackles of the English concept of superiority over all others, embedded from 1788. Australians generally have been rebelling against that attitude for a long time (since well before Eureka , I would suggest), and this probably underlines the success of our multiculturalism. It will take some time to achieve a treaty I suspect since there will still be those in power who will rant and rage against it. (The likes of John Howard and his disciples spring to mind).

john frawley | 18 May 2016  

I agree with Senator Pat Dodson that we should have both constitutional recognition of Australia's indigenous people and a treaty between the Indigenous people and the general society. In fact, a treaty without prior recognition might not even be feasible. However, with the large-scale disbelief in the "forgotten war" between the early settlers and the Indigenous people, extending up to as late as about 1928, getting agreement in the general society on the need for, and content of, such a treaty will be a far greater challenge than winning a referendum for recognition.

Ian Fraser | 18 May 2016  

A great, reflective and timely article, many thanks. Lessons for all of us in this.Particularly the need to listen more deeply to our First peoples. Two important recent articles may help answer some important questions or contribute further, 1) Tony McAvoy (Indigenous SC) "Time for Treaty: Principles for a treaty based on fundamental human equality" at http://arena.org.au/time-for-treaty-by-tony-mcavoy/ and 2) Alastair Nicholson AO, RFD, QC "Essential Elements for a Treaty" at http://arena.org.au/essential-elements-for-a-treaty-by-alastair-nicholson/ This 50 minute video discussion " Constitutional Reform And Aboriginal Funding" by Amy McQuire And Chris Graham On Let’s Talk also important background at https://newmatilda.com/2016/05/18/constitutional-reform-and-aboriginal-funding-amy-mcquire-and-chris-graham-on-lets-talk/

George | 18 May 2016  

I wonder why none of our governments have ever embraced the idea of a treaty?

Rosemary Drabsch | 18 May 2016  

There is a very loud and clear voice from the majority of Aboriginal communities saying that mere Recognition does NOT RECOGNISE Indigenous Sovereignty, and does NOT RECOGNISE Land Rights - only Native Title which gives the Australian Government the right to take Aboriginal lands for mining etc and lease it back to Aboriginal communities - or even move Aboriginal communities off their lands, while sacred sites are bulldozed and Aboriginal people lose their attachment to country and culture and their law. Treaties legally acknowledge that Aboriginal communities have never given up their sovereignty to white law, and therefore have the right to their own lands, some of which they can then lease if and for what purpose they alone can choose. They then have the power to govern their communities for the benefit of Aboriginal people and the preservation of Aboriginal culture. And community education then ensures that Aboriginal languages and culture are preserved, jobs created, pride restored and jails emptied. Indigenous-run businesses and cattle stations have proved efficient and successful. Treaty is the first step for Aboriginal justice and positive change, bringing true recognition, respect, and the Right for real legal recognition.The Government "Recognition" Program is a legal lie.

Annabel | 19 May 2016  

Acts 1 tells us that when the apostles wanted to know when the kingdom would be restored to Israel, they were told that it was not for them to know times or dates that the Father had fixed "by his own authority." Treaties are agreements between independent authorities, each with its own source of law that determines how the treaty is to be made and observed. Each independent source of law by its own authority consents to recognise the existence of the other before a treaty can even be devised. Aborigines will be supplicants to this proposed 'treaty'. The source of law that resides in the Commonwealth, derived from invasion, will determine who the 'First Nations' are, who may sign the 'treaty' for them and the procedural and electoral rules to work out whether the 'treaty' is acceptable to 'Aborigines' (as determined by some other rule emanating from the invader's source of law). Without their own legislative and executive authority immune from the Commonwealth, the 'treaty' is only a concession, a gift, an act of grace. Where is the dignity in that? The idea of a treaty is logical nonsense. Aborigines are the First Australians; say it in the Constitution.

Roy Chen Yee | 19 May 2016  

I'm no constitutional lawyer, but as I understand it, a 'treaty' is an agreement between states, enforceable at international law. The Commonwealth executive has the power to enter into a treaty; it does not require approval of the parliament or the electorate. Because of its bilateral nature it recognises the sovereignty of the other party. In other words, it means something. 'Constitutional' recognition, by definition, requires the approval of the electorate through a referendum of a proposal prepared by the executive. It does not require the consent of the 'recognised' party, it is something done by 'grace and favour', and it is not of itself binding or enforceable at law. In other words, it means little even if the referendum were to be carried overwhelmingly. If I were a member of the first nations, I know what I would be seeking.

Ginger Meggs | 19 May 2016  

Aborigines and Torres Strait Islanders have no sovereignty. Every part of Australia and its waters is claimed in law and by superior force by the Commonwealth and the States. They would have to rebel, throw off the laws of the Commonwealth and the States, form their own legislative institutions and re-constitute a relationship with the Commonwealth of Australia. I’m not sure this can even be done ritually as an Aboriginal People/s and a Torres Strait Islands People/s (in all their many clans or ‘nations’) would first have to constitute themselves, recognise each other's 'dominions', choose representatives, and establish legislative, executive and judicial institutions before symbolically withdrawing from ‘Australia’ before returning via peace treaty. But, as subjects, they could petition the monarch, as the barons did at Runnymede, for a charter to rectify injustices. But charters, being a complicated shopping list of goodies (rights and privileges) are likely to fail a referendum which is the only way a people can be reconciled between themselves. In this way, a 'treaty'/charter will be divisive, unlike a simple statement in the preamble to the Constitution to do with the reality of occupation. We're already spending billions on ATSI issues. Charters called treaties are unnecessary.

Roy Chen Yee | 19 May 2016  

That response, Roy, is what I might have expected from a nineteenth century colonising European, except that at least you have not denied that they had title to their land. The Aboriginal and Torres Strait Islander peoples did have sovereignty, their lands were taken from them by brutal acts of war, although many Australians and most politicians are reluctant to acknowledge it in those terms. That war has never been settled by a peace treaty so it would, in my opinion, be quite reasonable for a descendant of the survivors of that war to claim that her/his land is still territory occupied by force. That nineteenth century European international law may have recognised the European occupation as legitimate is beside the point. There is no need for the first nation people to ‘reconstitute’ their sovereignty, it has never gone away. Of course the idea of a treaty will be divisive because many, probably most, non-indigenous Australians are not prepared to acknowledge what you rightly call ‘the reality of occupation’ and the war that enabled occupation. A wishy washy constitutional amendment endorsed by a majority of non-indigenous people will change nothing and mean nothing.

Ginger Meggs | 19 May 2016  

Ginger Meggs: A philosophical premise is erroneous if it leads to an absurdity. I take your premise to be ‘once have sovereignty, always has sovereignty’. It cannot be so because it leads to absurdity. If aborigines and Torres Strait Islanders still have sovereignty, all the landowning non-indigenes (and even indigenes owning real estate outside the lands of their ancestry) have defective title and are trespassers. There will still be no ‘treaty’, only a charter from the new indigenous overlords graciously granting (if they feel like it) concessions to the multicultural squatters who used to own the place. All governance arrangements that we take for granted will exist only at sufferance. As owners, they could invite all of the asylum seekers in the world to come here, scrap our elected governments and outsource the running of the country to the Chinese Communist Party, introduce spearing as a legal penalty, etc., without anyone having the moral right to stop them because, under your premise that once sovereign, always sovereign, all of the continent is their land to be managed as they see fit. If there is an advantage to your argument, could it be that Israel does belong, wholly, to the Jews?

Roy Chen Yee | 23 May 2016  

Roy if we are going to talk philosophical method, none of the consequences you list are 'philosophically absurd'. Some of the actions might not be wise or achievable, but they are not 'absurd' in a philosophical sense. (They actually sound like a list of scare slogan ideas for some far-right political group). In the matter of land ownership, the High Court, in its Mabo decision, recognised that (some) native title to land still existed 200 years after initial invasion and it led to the Deputy PM of the time going around like a Dalek crying 'extinguishment! extinguishment! extinguishment by the bucket load'. I have not claimed that sovereignty cannot be extinguished, rather I accept that it could be extinguished by a group dying out (Easter Island?), being exterminated (once the objective in Tasmania), by acquiescence (as in Medieval England), or by treaty or agreement (as between Maori and Pakeha in New Zealand. None of those conditions apply in this country, or at least to the country as a whole. The other problem that I have with your approach is that you are looking at purely from a 19th century conquering western European perspective only and not seeking to understand it from an Indigenous perspective. What is it about a treaty that makes you afraid?

Ginger Meggs | 26 May 2016  

GingerMeggs: We’re talking about practical absurdities caused by impractical moral posturings. If ATSIs never lost sovereignty, the rest of the population, right now, must be illegal immigrants and, therefore, trespassers. Don’t you think this is an absurdity? While a purpose of law is to express absolute moral values (eg., “sovereignty is never extinguished by occupation”), in a broken world where things have moved to a point where past actions cannot be undone, what can be asserted to be moral is often bound by what can be found to be practical. As it is the occupier who has the actual power to make things better, things are not served by pre-insisting that he has no legitimate existence, especially where the evidence is that material prosperity in the settler societies of Australia, Canada, NZ and the US occurred with very little input from the first peoples, and that such opportunities as are available today to the first peoples are courtesy of the economic efforts and religious and political philosophies of waves of ‘illegal immigrants’. The same claim that a past event is still crippling a current generation is being made concerning slavery and African-Americans (but not all African-Americans believe this). Yet, are the descendants of the freed slaves who found sovereignty in Liberia better off than the descendants of slaves in today’s USA?

Roy Chen Yee | 30 May 2016  

Roy, you said 'If ATSIs never lost sovereignty, the rest of the population, right now, must be illegal immigrants and, therefore, trespassers. Don’t you think this is an absurdity?' No, I think it is the reality. You also said 'in a broken world where things have moved to a point where past actions cannot be undone, what can be asserted to be moral is often bound by what can be found to be practical.' So that is your Church's teaching on morality, is it? The rest of your post about the relative benefits of settler society are irrelevant to this issue unless you believe that theft by the affluent and powerful is excusable whereas theft by the underclass is not.

Ginger Meggs | 31 May 2016  

Ginger Meggs: Do you believe theft by the underclass is excusable? You must, as you support adding to the 22 million plus trespassers here more ‘boat people’ whom surely you must regard as an underclass. Shouldn’t we wait to see what the treaty says before bringing in more trespassers for the sovereignty-deprived first peoples to stomach? Incidentally, if the 22 million plus trespassers here are ‘theft by the affluent and powerful’, does this mean that all those single mothers, mentally ill homeless, physically incapacitated unemployeds, involuntarily retired downsizees, etc., are, like Malcolm Turnbull who has the means to purchase US citizenship and retire to the spiritual home of the concept of the Republic, affluent and powerful thieves also, or will you be telling the sovereignty-deprived first peoples that they can have the full sovereignty that they deserve as long as it is ‘full’ 99% sovereignty, the other 1% disappearing into that sideshow magician abyss where socks in washing machines, boats in the Bermuda Triangle and gaps between treaty spin and treaty practice slipped under the carpet go? If sovereignty is, as you theorise, extinguished by extermination but not by occupation, what of the increasingly non-indigenous descendants of a sole ATSI survivor? Do they still claim sovereignty? When your theory is shaky because the facts are slippery, “your Church’s teaching on morality” rather wisely says some controversies are moral and others are prudential.

Roy Chen Yee | 02 June 2016  

Roy, I think this 'discussion' of ours is getting a bit off topic. The article is about treaty, recognition, or both. The main point that I tried to make was that any form of words that would have any hope of getting through a referendum would be so wishy washy as to be meaningless at best, and perceived by some as 'a trap'. At least some of the people with whom Kate spoke do not recognise the legitimacy of occupation. They were not disputing the fact of occupation, but its legitimacy. They wanted the dispute resolved but not by parliamentary apologies or constitutional recognition, which could be seen as yet another example of 'patronising white fella we know best what's good for you' stuff by by a treaty to which they would be equal partners and whose words and terms they could freely negotiate and to which they could either give or withhold consent, something that would be binding on both parties. I don't think anybody is disputing that there would be many practical difficulties in negotiating a treaty, not the least being defining who are the parties to the treaty (Britain? the Commonwealth? the states? the several indigenous nations? or indigenous people as a whole?) but if a treaty is considered important by a significant proportion of indigenous people, shouldn't we at least have a go at it if it bring resolution to a 200+ year old dispute?

Ginger Meggs | 02 June 2016  

GingerMeggs: Before you get to the stage of the practical difficulties you mention, there’s the stage of logical difficulties. Treaties are agreements between sovereignties. This document just isn’t such a thing. The moral foundation of this ‘treaty’ is a belief that a sense of being dispossessed is still crippling aborigines today. That there are many Aborigines within the Great Australian Middle Class, living European economic lives (owning belongings as individuals rather than as a group), invalidates this thesis. The people on the other side of the ‘treaty’, the settlers and the immigrants they allowed in, cannot be represented by today’s non-native people in any meaningful sense because all of the non-native descendants, being born after Occupation, bear no guilt for it. (At least one human right of every individual is only to be accountable for the things it does. Are today’s Jews still responsible for crucifying Jesus?) Neither are they enemies of the present day descendants of the Aborigines of 1788, at least not if the variety and monetary quantity of government programs for ATSIs is anything to go by. The idea of a treaty is flawed in principle. What needs to be done is to record accurately an historical injustice in the country’s founding document for all of posterity to see and learn from. Such a finding will need to be approved by referendum. And what is wrong with that? Much is made of how a republic will express the dignity of ‘the people’. If the people are so invested with dignity, isn’t sneaking a ‘treaty’ on a matter that makes comment on the integrity of the Australian people past those very same people self-contradictory and ‘unrepublican’?

Roy Chen Yee | 07 June 2016  

Roy, you reject a treaty because the indigenous people have no sovereignty but then you go on to expose the real reason for your discomfort, that a treaty would, in your opinion, imply that the present generation of non-indigenous people must bear the 'guilt' for the dispossession. But who, other than you, has said their is any such relationship between recognising sovereignty and acknowledging 'guilt'? You Catholics are too hung up on matters of guilt. Wouldn't it be sufficient to say that we all benefit from the dispossession? Wouldn't that then allow you to consider a treaty on its merits rather than rest it out of hand on the basis that it implies accepting 'guilt'?

Ginger Meggsa | 09 June 2016  

Kate, I'm not yet a lawyer, but like you, I am white. One of the increasingly frustrating issues I find in this area is the tendency of well-meaning non-indigenous people to hijack the discussion on what they think is best for indigenous people. The "I have a few Aboriginal/ Muslim, etc friends, but this is what must be done" kind of rhetoric is not always helpful. This only continues colonisation and dis-empowerment. We must truly listen to the disparate views of our indigenous people, realising that they are are not a homogeneous lot of people, and support (not push!) them into positions where they can truly set a course that is meaningful to both indigenous and non-indigenous Australians. In this way, we can all achieve substantive equality, and not just formal equality.Thank you for your article.

Maree Stuart | 25 July 2016  

A treaty is treason and will open the door (Pandora's box) to unimaginable legal cases before our incompetent Supreme Court Justices who make political decisions rather than legal ones .The cost of these thousands of court cases will be borne by the taxpayer and will just create another trough for the legal fraternity to gorge in. Treaties with black people mean nothing .In south africa a treaty wa made in 1832 and is ignored by the blacks and the self flagellating whites all over the world. A treaty 200 years after the fact is directed at destroying equality and very heart of democracy .One man one vote . What happened to the treaty reached in Sydney in 1934 were the Aboriginals demanded and were granted and accepted to be Australian citizens equal to whites . Ignored to achieve the new disposition of 15 white votes is equal to 1 Aboriginal vote. Only an idiot or an Australian Lawyer will not see the Trojan Horse trap that a treaty will represent. Get rid of all the white boards,organisations ,University funded research groups and committees who are gorging themselves on 80% of the money allocated to Aboriginal living and advancement . Apply the Constitution of Australia and the law equally on whites and aboriginals. If a white lived in self created filth and dirt they would be expelled from public housing and their children taken into care so they can break the chain of generational ignorance and poverty. Why are we funding hate groups to promote white hate on the ABC and SBS such as was done by the nazi propaganda machine . The fascist left supports any cause that will create anarchy.

Gerald van de weg | 08 April 2019  

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