14 July 2000

What’s in a Treaty as Reconciliation?

Roderic Pitty

The massive reconciliation marches held around the country in May and June this year have raised anew the prospect of a treaty within Australia to redress the failure of successive governments to improve Aboriginal conditions of life and to provide proper space for the development of Aboriginal culture. There is a widespread view that the current Federal Government has failed to appreciate the requirements of reconciliation. This failure is not just a result of a lack of leadership. It also reflects a lack of due process. Indigenous peoples have been treated unfairly because they have been neglected as marginal actors in Australian politics, rather than recognised as potential partners in the creation of a reconciled Australia.

The Council for Aboriginal Reconciliation is a statutory body due to expire at the end of 2000. Its pragmatic leaders have claimed that Australia is still not ready for a treaty, but if we are not ready soon it is hard to see how we ever will be. Some participants in the debate have said it will take about 20 years to achieve a treaty clearly establishing what can legitimately be expected of governments and citizens in Aboriginal affairs. This view ignores the fact that it is 21 years since the Aboriginal Treaty Committee first raised the call for a treaty in 1979, during a period of Aboriginal frustration with government similar to the present. What is needed to progress the debate now is not another generation but awareness of what form a treaty might take and how it can be achieved. The key to determining the substance, purpose and process of a treaty is not time but an open debate about what a treaty could do for reconciliation in Australia. This can be informed by relevant lessons from New Zealand, where the principle of a bicultural partnership with indigenous peoples has emerged during the past 20 years.

The British agreed to the Treaty partly because they realised their conduct in Australia had been awful.

The relevance of New Zealand is not limited by the fact that the Treaty of Waitangi (signed between the British colonisers and most Maori leaders in 1840, when the new colony was being administered from New South Wales) has no Australian equivalent. The British agreed to that Treaty partly because they realised their conduct in Australia, especially in Tasmania, had been awful and something better had to be done in New Zealand. Within a generation the British had dishonoured the Treaty because it obstructed the taking of Maori land. Only since the 1970s have non-indigenous New Zealanders appreciated its value, as a symbolic document which ‘gives legitimacy’ to their presence ‘not as a conqueror or interloper’ but as rightful residents, in the words of New Zealand’s Attorney General (later Prime Minister) Geoffrey Palmer in 1985 [1]. There is a historic parallel between the revival of an old Treaty in New Zealand and what Patrick Dodson has called breaking the chains of Aboriginal unfinished business in Australia [2]. Despite different constitutional structures in the two countries, looking at Waitangi like a mirror can focus debate about realising reconciliation in Australia.

What is in the Treaty across the Tasman? Essentially, three interdependent articles, joined by spiritual respect. The version of the Treaty that Maori leaders agreed to says:

the government’s complete authority in the country depends upon this agreement;
the government agrees without qualification to preserve Maori self-determination;
the government will ensure all Maori people have the same rights as other citizens.

The spiritual element, described as the fourth article of the Treaty, was an undertaking by the British authorities that they would fully respect Maori customs.

The basic purpose would be to establish an enduring foundation for a future relationship.

Commenting on the integrity of the Treaty 150 years after it was signed, senior Maori lawyer Eddie Durie said its enduring purpose had been to secure ‘governorship for the Crown, autonomy for Maori, and citizenship for all’. He emphasised that the Treaty had survived a terrible history of neglect because it was ‘founded not on legalism but on a philosophy of good faith’, being a brief statement of founding principles which can be readily recognised today ‘as a living document relevant to all ages’ [3]. Although these principles were treated with contempt by most non-indigenous New Zealanders for much longer than Australia has been a federation, few politicians now scorn them. In 1997, as the Australian government denied the need for self-determination and refused to compensate Aboriginal families ruptured by government control of private lives, the conservative New Zealand government sought to settle some outstanding grievances of Maori tribes wronged by the Crown. Minister of Justice Douglas Graham justified these efforts by saying New Zealand could not ‘allow its indigenous population to lose all that it holds precious, fail to provide a forum for the grievances to be aired for over 150 years, and then say that Maori are out of time to bring a claim according to the rules of court’ [4]. He recognised the Treaty of Waitangi as essential to the legitimacy of New Zealand.

The Olympics will raise questions about the legitimacy of any Australian government that fails to acknowledge the historic need for negotiating with indigenous peoples on a new framework for their survival, premised on partnership not paternalism. The basic purpose of an Aboriginal Treaty within Australia would be to establish such an enduring foundation for a future relationship. This is how the Treaty of Waitangi has increasingly been understood by many New Zealanders in the past generation. The process of creating this new relationship will be more complex across Australia today than it was at the Bay of Islands in 1840. Yet it may also be much more resilient, partly because the costs of previous failures to honour a commitment to this process (such as that made by Prime Minister Hawke in 1988) are now evident for all the world to see.

The time is nigh for an Aboriginal Treaty meeting the high standards of the Treaty of Waitangi, which have been tested historically and affirmed by the bicultural Waitangi Tribunal, charged with the task of examining past grievances and applying that Treaty to present circumstances. The need for a tribunal ‘to supervise and to act as arbitrator in negotiations leading to a treaty’ in Australia was first raised by Nugget Coombs in the Boyer lectures in 1988. He stressed the need for regional Aboriginal participation in the process of creating a treaty, which ‘must lead to an Act of Self-determination in a form recognised by the United Nations and be binding on future Commonwealth and State Governments’ [5]. Refusing to start the process now is like looking for ourselves in a wall not a mirror, when outsiders see holes in our wall and a good mirror is nearby.

ENDNOTES

1. Quoted by the Chairperson of the Waitangi Tribunal, Chief Judge E.T.J. Durie, ‘The Treaty in Maori History’, in William Renwick ed., Sovereignty and Indigenous Rights: the Treaty of Waitangi in International Contexts, Victoria University Press, Wellington, 1991, p235 n 23. [Back]

2. Patrick Dodson, ‘Until the Chains are Broken: Aboriginal Unfinished Business’, excerpts from the Fourth Vincent Lingiari Memorial Lecture, Arena Magazine, no. 45, February-March 2000, pp 29-31. [Back]

3. Durie, ‘The Treaty’, pp 156, 163, 165, 167. [Back]

4. Douglas Graham, Trick or Treaty?, Institute of Policy Studies, Wellington, 1997, p 89. [Back]

5. H.C. Coombs, Aboriginal Autonomy, Cambridge University Press, Melbourne, 1994, pp 154, 227. [Back]

Roderic Pitty works in the Historical Documents Project Section of the Department of Foreign Affairs and Trade (DFAT), and is researching the relevance of the Waitangi Tribunal for Australia. The views expressed in this article are those of the author, not of DFAT.