20 October 2003

Treaties and agreements: Towards decolonisation

Stuart Bradfield, AIATSIS

The question of a treaty between Indigenous and non-Indigenous peoples in Australia continues to drift in and out of public debate. High on the agenda in 1972, 1979, 1988 and 2000, it often seemed to disappear in the intervening years. With the suspension from office of staunch advocate Geoff Clark, and a (co-incidental?) lack of desire to resurrect it from the current federal government, the treaty question again appears dead—for now. However, a look at the progress of decolonisation around the world suggests that the ‘unfinished business’ between settler and Indigenous peoples will reopen discussion of a treaty in Australia. Indeed, State governments are already proceeding tentatively down the path of decolonisation via negotiation.

When public treaty talk does start up again, I suggest advocates concentrate on the prior question of why before addressing what a treaty might look like. Australian ex-pat Ravi de Costa recently examined this prior question in a recent article in The Drawing Board (2003). As such, de Costa’s article might have been titled ‘Treaty why?’ rather than ‘Treaty how?’. De Costa suggests that the ‘moral argument’ for treaty-making is insufficient to engage states who viewed treaties ‘primarily as an instrument for managing their own interests’. He argues that, historically, states have only signed treaties with Indigenous peoples where they accorded with ‘the settler state’s calculation about the best way to apply power towards its goals of consolidated and expanded settlement’ (de Costa 2003, p. 2). He cites the case of British Columbia as a recent example where Indigenous peoples have increased doubt about the state’s ability to continue such expansion in order to bring it to the negotiating table. Finally, he asks Indigenous Australians and their supporters to ‘reflect deeply on what power they have to engage the state’ (de Costa 2003, p. 19) Treaty, why indeed?

Advocates should concentrate on why before addressing what a treaty might look like.

De Costa is right, of course, to remind those (black and white) who advocate for an Australian treaty that the state is unlikely to seek consent of the continent’s prior owners simply because it is ‘the right thing to do’. Yet, the distinction between the ‘moral’ arguments put by proponents, and the ‘instrumental’ arguments required by states is far from clear-cut. The state does not need a treaty to consolidate or expand its colonising project. It is far more basic than this. While ever it lacks the consent of the previous owners, yet professes to order itself according to principles of democracy and equality, the state needs a treaty to legitimate itself. To modify a favourite slogan of the 1970s: the moral is instrumental.

Decolonisation in settler societies

Analysis of Indigenous-state relations in Australia is rarely placed in an international context. Around the world from the late 1950s, the idea that a people or nation could rule over another because of an alleged superiority of colour or culture lost legitimacy, setting off a ‘second wave’ of decolonisation. During the last three decades, states in settler societies have begrudgingly devolved power to Indigenous peoples in a number of ways. In Canada, a comprehensive settlement process was begun; in Aotearoa/New Zealand, the Treaty of Waitangi was reinvigorated as the founding document of a bicultural state. Yet Australia’s Indigenous peoples missed out. Here, this even more incomplete process of decolonisation has involved neither the formal acquisition of Indigenous consent, nor recognition of Indigenous status as prior sovereigns.

In the Mabo case, the Australian High Court belatedly went some way to recognising the unique position of Indigenous peoples in Australia. While Mabo recognised people’s prior and continuing right to own and occupy land, it did not recognise their continued right to regulate their societies on that land. Also, in dodging the key question of Indigenous sovereignty, the Court ultimately perpetuated uncertainty about the place of non-Indigenous Australians. The Court could not tell us how whitefella sovereignty was acquired. Where does this right to exercise power come from, if not the people already here? This fundamental, nagging doubt remains. Australia will never be ‘relaxed and comfortable’ until the uncertainty at the centre of our occupation is resolved by gaining the consent of those peoples already here.

Of course these moral arguments have all been heard before. Their ‘power’ is apparently no match for the state (legislature, executive or judiciary) which can simply deny, modify, or restrict Indigenous rights to the point they are effectively put ‘beyond use’. Yet, in the last thirty years settler states have consistently negotiated with the Indigenous peoples captured within their borders, as the States in Australia currently do. Just don’t tell the Prime Minister…

A de facto treaty process?

De Costa suggests ‘Australian governments are unlikely to enter comprehensive negotiations without a compelling reason’ (2003, p. 19). Yet state governments are entering into negotiations—and not simply because it will save them a few welfare dollars. Australia is currently witnessing the emergence of what has been described as a ‘de facto treaty process’ (Langton & Palmer 2003). While progress at the national level seems frozen, underneath, relationships are shifting. Nearly all state governments have some sort of framework agreement, Memorandum of Understanding, model land use agreement, or protocol with Indigenous peoples. The process is perhaps most advanced in South Australia, and in that former bastion of conservative resistance, Western Australia.

A ‘de facto treaty process’ is currently emerging in Australia.

Why are States negotiating agreements? One possible answer is the potential reduction in the welfare bill provided by intransigent Indigenous socio-economic deprivation. This may well motivate service delivery agreements being signed at state and regional levels, as well as a ‘whole of government’ approach being trialled by the Council of Australian Governments. But if agreements only deal with delivery of general citizenship entitlements, they cannot hope to do the work of treaties which recognise distinct Indigenous identities as nations or peoples. This remains the fundamental difference between ‘comprehensive’ agreements in Canada and Australia.

A key question is whether emerging agreements implicitly operate under the same ‘nation-to-nation’ assumption shared by the treaty relationship. Are they really ‘de facto treaties’? Though the stated aim of the ‘whole-of-government’ approach is improved delivery of services by the state to communities, it recognises the important role of Indigenous autonomy both in accessing and providing those services. These ‘local treaties’ could come to feed into regional agreements, which in turn might be benchmarked by an overarching national framework, or treaty. Of course the current federal government won’t connect the dots to this extent.

In South Australia, negotiations aimed at comprehensively resolving distinct native title rights and related issues of governance have continued for around four years. The desired outcome of a state-wide framework agreement regulating the relationship between native title claimants, the government, and other parties is still some way off. However, it is significant that parties as disparate as native title groups, the Aboriginal Legal Rights Movement, the South Australian Government, the SA Farmers Federation, and the SA Chamber of Mines and Energy are engaged in a mutually determined process of consensual negotiation. Negotiators clearly see benefits in the process itself, particularly in strengthening capacity of Indigenous communities to build processes of governance (Agius et al. 2003).

The process in Western Australia is also embryonic. The state government has agreed to negotiate a series of comprehensive agreements, including with the Noongar Nation in the settled south west—a group which represents the single largest Indigenous Nation in Australia. Agreed negotiating principles indicate that the agreements aspire to be more than simple service delivery agreements, in that they recognise Indigenous peoples’ status as ‘first people’ and ‘prior owners’, with ‘inherent rights’ which should be protected (Western Australia 2003). Only time will tell the extent to which Noongars and the Western Australian government can agree on the practical meaning of these terms.

Indigenous peoples are not just another minority.

Referring to agreements as ‘de facto treaties’ suggests the emerging culture of agreement-making in Australia is about more than just instrumentalism. It is early days. Currently, achievements are few, but the promise is there. It appears that quietly, Indigenous peoples and State governments are bringing Australia into line with settler societies like Canada and Aotearoa/New Zealand. Governments will need to monitored to ensure rhetorical recognition turns into practical power sharing. That is what decolonisation is all about. That is why it remains appropriate to discuss a national, overarching agreement—or treaty—which won’t replace regional or State agreements, but could provide a framework within which they operate.

Certainly, self-interest dictates that governments seek to neutralise noisy minorities which constitute a political headache. Yet—and this is critical—Indigenous peoples are not just another minority. Their claims raise questions which fundamentally challenge both the state and the people who have come to embody it. Whitefellas have always known—even when they tried to actively forget—that Indigenous peoples have a place in this continent that differs from all other groups. In reconciling the place of Indigenous peoples, they will also establish just terms for their own place.

Treaties were previously breached in times where the inherent inferiority of Indigenous peoples was taken for granted. The opportunity now exists for a transformative agreement to be negotiated in an age which apparently values the equality of peoples—an agreement which won’t magically resolve all issues so much as finally provide a legitimate context for their resolution.

REFERENCES

Agius, P., Davies, J., Howitt, R. & Johns, L. 2002, ‘Negotiating comprehensive settlement of native title issues: Building a new scale of Justice in South Australia’, Land, rights, Laws: Issues of Native Title, vol. 2, no. 20.

De Costa, R. 2003, ‘Treaty how?’, The Drawing Board: An Australian Review of Public Affairs, vol. 4, no. 1, pp. 1–22 [Online], Available: http://www.econ.usyd.edu.au/drawingboard/ [2003, October 1].

Langton, M. and Palmer, L. 2003, ‘Modern agreement making and Indigenous people in Australia: Issues and trends’, Australian Indigenous Law Reporter (forthcoming).

Western Australia 2003, Statement of Commitment to a New and Just Relationship between the Government of Western Australia and Aboriginal Western Australians, Perth [Online], Available: http://www.dia.wa.gov.au/Downloads/pdfs/statementofcommitmentfinal11.pdf [2003, 12 September].

Stuart Bradfield is a Visiting Research Fellow in the Native Title Research Unit at the Australian Institute of Aboriginal and Torres Strait Islander Studies. He is currently researching comprehensive agreement making in Australia.

View other articles by Stuart Bradfield: