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The Treaty on Constitutional Recognition of Indigenous Australians

Australia—like many other Commonwealth nations settled by colonial force—has a difficult relationship with its Indigenous peoples. In fact, Australia is the only Commonwealth nation lacking any kind of formal treaty with its Indigenous population: a fact that many see as a significant barrier to true reconciliation and improved Indigenous outcomes. Calls for a treaty have recently reached the highest levels of government. The Minister for Indigenous Australians, Ken Wyatt, has promised a referendum on the issue of constitutional recognition for Indigenous peoples within the current term of government. However, if such a treaty is to be politically feasible, it must either be merely symbolic or must create a legal distinction between Australian citizens, on the grounds of Indigenous heritage.

The legacy of terra nullius and the violent dispossession of Indigenous land continue to complicate the relationship between Indigenous Australians and the Australian state. There is now widespread public recognition that the treatment of Indigenous peoples by early British settlers was nothing short of horrific: a dark history of mass murder, rape, legal disenfranchisement, racial abuse and cruel paternalistic policies. Indigenous children were forcibly separated from their families by the Australian state until as late as 1970, in an effort to increase the rate of cultural assimilation by force. These children have come to be known as the stolen generation. Accordingly, any debate on the need for a treaty, or on the form such a treaty should take will occur within the context of this historical burden: all serious commentators in Australia agree that settlement caused deep and lasting intergenerational harm to Indigenous peoples. The nature of contemporary Indigenous disadvantage will be the first point of contention: would it be more efficient to allocated the resources invested in the treaty process to directly tackling Indigenous health and social welfare issues instead?

Advocates of a treaty often recognize the inherent direct limitations they face, yet argue that the symbolic recognition of Indigenous peoples is a critical precursor to redressing the inequality between Indigenous and non-Indigenous groups. George Williams, an academic specializing in Australian constitutional law at the University of New South Wales, contends that treaties serve to create foundations for Indigenous self-governance and determination, by addressing the historic sense of powerlessness and injustice felt by Indigenous groups. Stan Grant—a prominent commentator on Australian Indigenous issues—advocates a treaty on Rawlsian grounds, arguing that Indigenous disadvantage undoubtedly persists and that a truly just liberal democracy could agree on a treaty that confronts this disadvantage without compromising individual liberty. These calls for a treaty—well intentioned as they undoubtedly are—neglect to address the challenges inherent in defining its essential form: what specific clauses should such a treaty contain, and which peoples or groups should be party to it?

The most recent authoritative position, the Uluru Statement From the Heart (also known as the Uluru Statement) emerged from a convention of over 250 Indigenous and First Nations people in May 2017. The Uluru Statement does not define the precise nature of the constitutional reform necessary to achieve the objectives of Indigenous people in seeking a treaty. Instead, it outlines two broader demands: for a constitutionally recognized First Nations Voice and the establishment of a Makarrata Commission, defined as a dedicated governmental body for negotiating treaty arrangements. Such a statement should be lauded as a positive attempt to make progress on what is a hugely important issue for many Indigenous Australians—however such statements are so vague as to be open to multiple interpretations and do not advance the objective of developing a specific treaty format that could be accepted by Australian voters. The concept of a First Nations Voice—a constitutionally recognized Indigenous advisory body to the parliament—is ridden with practical drawbacks: not least the fact that referenda have seldom proved effective means of producing constitutional change in Australia. Only 8 out of 44 referendums since 1901 have resulted in an alteration of the constitution. Ken Wyatt, the minister tasked with overseeing the treaty and recognition process, rejects the notion of a single First Nations Voice in favour of a tiered approach: a major point of disagreement with the convention. Furthermore, the concept of a single government body to negotiate treaties is also fraught with difficulty: at what level should such negotiations occur? There is enormous diversity in language, tribal affiliation and history within the First Nations of Australia: a fact which poses a significant challenge to those defining the scope of any treaty, or the representation required to ratify it.

The success of any specific treaty presented to the electorate in a referendum is dependent on the treaty’s exact wording and legislative implications. Despite opinion polls suggesting that the idea of constitutional recognition for Indigenous peoples is a popular one, proponents of a treaty should recall a previous failed referendum: the 1999 vote on whether Australia should become a republic. The notion of attaining self-governance with an Australian head of state was attractive to a majority of voters polled, but rifts within the republican movement itself ultimately resulted in the proposal of a so-called appointment model, in which the head of state would be elected by members of parliament, not voters. This shows that the specific wording on the ballot paper matters to Australian voters. Voters may support an idea in the abstract, yet oppose any implementation of said idea that violates firmly held Australian cultural principles.

Donald Horne, author of the exceedingly influential cultural critique The Lucky Country, has observed that Australians are, in general, an egalitarian people, motivated by a deeply held cynicism and aversion to codified social hierarchies. Horne’s book was published in 1964—three years before a referendum on whether to count Indigenous Australians in population figures recorded by the census. A commonly held (yet incorrect) assumption is that this referendum was carried on the question of whether or not to grant Indigenous Australians voting rights, and to classify them as normal citizens. Although the actual motion was far weaker in a legislative sense, the symbolic nature of the result—a resounding yes vote to stripping the constitution of terms and words intended to define Indigenous Australians as a separate class of person—seemed to prove Horne right. The 1967 result—in which Australian voters chose to remove constitutional distinctions pertaining to Indigenous Australians—suggests that the average Australian opposes legislation that would provide the basis for differential legal treatment based on race, or is worded in a way that alludes to the possibility of such treatment.

Australia currently has a conservative government. A number of conservative members of parliament have already expressed their concerns about constitutional change that may alter the legal rights of individuals based on race, or change the obligations of government towards certain groups, based on their Indigenous heritage. Proponents of constitutional change by treaty are effectively asking Australian voters to revisit the results of 1967: in essence, a treaty that encompasses constitutional recognition for Indigenous people will only pass if the electorate agrees that Indigenous people should have a special, different status under the constitution. This is ironic: in little over fifty years after the country voted to treat its Indigenous people equally, people will be asked to vote on whether they should be treated differently again. The content of the legislation is beside the point—most Australians are not interested in the details of constitutional law, and will vote based on an instinctive sense of fairness.

In The Righteous Mind, Jonathan Haidt warns of the dangers to social cohesion in articulating and exemplifying group differences. Efforts to make diversity salient and accepted are often antithetical to achieving better relationships between groups. This is a risk that Australia must grapple with if it chooses to proceed towards a treaty. Many academics focus on the high-level objectives of the treaty process—such as assuming moral responsibility and atoning for past harms—at the expense of questioning the concrete possibility that Australian voters will support reparations and the return of land rights to native titles. In evaluating the net benefit to Australian society, the potential harms to existing relationships between Indigenous and non-Indigenous Australians must be considered. A similar debate occurred when Australia conducted a postal plebiscite on same-sex marriage. It was decided then that the risks to same-sex attracted people during the plebiscite process (in terms of increased discrimination and anti-homosexual sentiment) were necessary costs in advancing the agenda of same-sex marriage. Is the same true of the treaty, a vastly more complex legislative matter? For some academics and activists, the desire to rectify a gross moral wrong leads them to neglect to consider the possible associated consequences. Uncompromising moral stances may be satisfying in themselves, but cannot force constitutional change.

Many Indigenous Australians are opposed to a treaty for the same reasons as non-Indigenous critics: they see it as a symbolic exercise that would not advance Indigenous health or social outcomes in any meaningful way, and which should therefore be deferred in favour of more effective action. The plebiscite on same-sex marriage cost the Australian government over $122 million: a similar figure, if not far more, would have to be spent on formulating a treaty and putting it to a vote. Ongoing issues surrounding Indigenous rights and recognition in Canada suggest that a treaty process is no panacea for poor relations with Indigenous peoples. Canada is still negotiating treaties with Indigenous groups today, as well as facing an inquiry into a possible genocide. Australia, a nation yet to sign a single treaty, might face the same kind of protracted legal challenge in the future. The Canadian experience shows that no amount of investment in a treaty process can absolve guilt, suppress the impetus for change or redress the wrongs suffered by Indigenous peoples.

So why should Australia proceed with a treaty process, when so many other mechanisms for advancing the cause of Indigenous Australians remain open? Government programs, charities and scholarships intended for Indigenous citizens are already administered under the auspices of existing laws: to some degree, the Australian state has already determined a series of targeted solutions to ameliorate Indigenous disadvantage. Presumably, a treaty process would leave such programs and other measures untouched—so those in favour of a treaty are confronted with the unpalatable prospect of explicitly defining exactly what it is they are trying to achieve. A symbolic victory would seem hollow to the Indigenous peoples relying on practical government assistance. Australians have yet to respect the intrinsic complexity of a treaty process. And, if implemented, Australians will rightfully ask: why do this, when we could do so much more?

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1 comment

  1. Once Victimhood is the law you will find that the professional Victims are never satisfied. Once some group is special, there is no end to their specialness. As we see here in Canada, the more whitey gives, the more he will be asked for. The deeper his apology, the more inadequate it is.

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