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Recognition or treaty ... Why not both?

  • 18 May 2016


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