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ABORIGINAL SOVEREIGNTY AND THE RIGHT TO SELF-DETERMINATION
The ideal of a Bill of Rights for all Australians, the need for a treaty between the Australian government and the sovereign people of this land and the need to revisit our constitution are issues that are long overdue for transparent and educated debate.
Treaties and other forms of agreements are accepted around the world as the means of reaching a settlement, between indigenous peoples and those who have settled upon their lands.
Treaties can be found in countries such as the US, Canada and New Zealand. Indeed, in other nations such as Canada, new treaties are still being debated.
Australia is the exception. We are now the only Commonwealth nation that does not have a treaty with its indigenous people. We have never entered into negotiations with them about the taking and occupation of their lands or even attempt to define their place in this nation’s past or present.
Rather than building our country on the idea of a partnership with Aboriginal people, our laws have sought to exclude and discriminate against them, for over 200 years.
This is reflected in the text of our constitution, which in 1901 created the Australian nation. That document was drafted at two conventions held in the 1890s. Aboriginal people were not represented, nor were they consulted in the drafting of the constitution.
Even though the constitution protected against discrimination, those protections were and have never been applied to the aboriginal people, a clear fault in the preparing of our founding documents.
The idea that Australia was terra nullius, or no man’s land, when white settlers arrived in 1788, for the purposes of our laws, was nothing more than a vain attempt to hope the problem would go away, it was as if they could close their eyes and Aboriginal people would simply no longer exist, or just maybe they thought they could wipe them out completely.
• While the preamble to the constitution set out the history behind the enactment of the constitution and the notion that the constitution was based on the support of the people of the colonies, it made no mention of the prior occupation of Australia by its indigenous peoples. Australia’s history, it seemed, began in 1788.
• Section 25 recognised that the states could disqualify people from voting in the elections on account of their race.
• Section 51 (xxvi) provided that the Parliament could legislate with respect to “the people of any race, other than the Aboriginal race in any state, for whom it is deemed necessary to make special laws”. This was the so-called, “races power”, and was inserted, in the words of our first prime minister, Edmund Barton, to allow the Commonwealth to “regulate the affairs of the people of coloured or inferior races who are in the Commonwealth”.
• Section 127 provided: “In reckoning the numbers of the people of the Commonwealth, or of a state or other part of the Commonwealth, Aboriginal natives shall not be counted”.
Some of these things were fixed with the 1967 referendum. It:
• Removed the prohibition on the Federal Parliament making laws for Aboriginal people.
• Deleted the prohibition in section 127 on the counting of Aboriginal peoples.
On the other hand, the referendum did not change the preamble or section 25.
Today, we have a constitution that ignores the existence of Aboriginal people and recognises that people can be denied the vote on account of their race, and that laws can be passed that discriminate against people for the same reason.
Given this history, it should come as no surprise that the white settlers never entered into one or more treaties with Aboriginal people.
Even from a stand point of English precedent law, the Queens own orders to work and trade with the original people for the use of their lands, was ignored by the first fleet.
The question today is how we can end this pattern of exclusion and discrimination. Constitutional change is certainly part of the answer but so is a treaty. These are separate debates but they represent two things that must be achieved.
The application of a bill or rights is also worthy of debate, because in the past 20 years, even Australian settlers or the children of, are now facing similar exclusion and protections by their own government.
In more recent times, a call for a treaty was made at the Corroboree 2000 convention, and the Council for Aboriginal Reconciliation identified a treaty as unfinished business of the reconciliation process. It recommended:
Photos of the Aboriginal remembrance of the frontier wars at the Canberra war memorial 2014
That the Commonwealth Parliament enact legislation . . . to put in place a process which will unite all Australians by way of an agreement, or treaty, through which unresolved issues of reconciliation can be resolved.
By a treaty, I mean nothing more than an agreement between governments and Aboriginal peoples. Such an agreement could involve three things:
1. A starting point of acknowledgment.
2. A process of negotiation.
3. Outcomes in the form of rights, obligations and opportunities.
A treaty about such matters could recognise the history and prior occupation by the Aboriginal people of this continent, as well as their long-standing grievances. It could also be a means of negotiating redress for those grievances and helping to establish a path forward based upon mutual goals, rather than ones imposed on Aboriginal people.
At the heart of the idea is the notion that a place in the Australian nation cannot be forced on Aboriginal people. It needs to be discussed and negotiated through a process based on mutual respect that recognises the sovereignty of Aboriginal people.
The international evidence is compelling in showing that listening to indigenous people is, by itself, insufficient to bring about real change. Change must be built on the genuine partnership between indigenous people and governments that can arise through the making of a treaty.
The evidence in the US and Australia shows time and again that redressing disadvantage over the longer term depends on indigenous people having the power to make decisions that affect not only their own people, but the use of their lands in general.
They must be responsible for the programs designed to meet their needs, and must be accountable for the successes and failures that follow.
At present much of Australian land is held in trust of the crown, and payments are still paid to the crown, just maybe that land should be held in trust of its original owners, and the income of leasing said land where the owners find it appropriate, could be a pool of resources for the sole use of the Aboriginal community’s for their country.
I can see nothing in our laws, nor the original letters patients that show valid reason for the crown to maintain ownership of Aboriginal lands, or why we would be paying any benefits from their use to a what could be considered a foreign power.
Another worthy debate would be to address representation in the Australian parliament, not in a token seat or an advisory role, one chosen for each parliament by the aboriginal people themselves.
It may be worthy of empowering the chosen representatives to control and destiny of their electorates resources and income, giving the power of destiny to the Aboriginal people themselves.
The “Harvard project’s” headline finding is that when Native Americans make their own decisions about development approaches, they consistently out-perform external decision makers, on matters as diverse as governmental form, natural resource management, economic development, healthcare and social service provision.
Positive change in Australia depends on Aboriginal people having more control over their lives. Improvements in education, employment and quality of life must be achieved by policies and programs owned and developed by the very people affected.
Success cannot be imposed from Canberra. The hard work must be done by Aboriginal people, and in saying that they must have the resources and support to ensure they can.
The problem in Australia is that we lack the laws and institutions necessary for Aboriginal people to make such decisions.
Unlike nations such as New Zealand, Canada and the US, agreements such as treaties have not been reached that recognise a measure of indigenous sovereignty. Instead, in Australia, decisions have often been imposed on Aboriginal people by parliaments and governments lacking even a single indigenous member.
In most cases the government prefers to deal with those who hold the same government’s position, rather than those who are considered leaders in their own community.
A negotiated treaty with Aboriginal people would mark an important break from a system that for many decades has disregarded the views of Aboriginal people, and reinforced their feelings of powerlessness. A treaty could give rise to stronger, and more capable, institutions of Aboriginal governance.
This is not to suggest there is any quick and easy fix. It is simply to say that fair and transparent dialogue is one piece of the puzzle. It is something that needs to be done both to achieve reconciliation and underpin long-term Aboriginal prosperity.
“We have to acknowledge that pre-1788, this land was Aboriginal country, and until we have acknowledged that, we will be an incomplete nation and a divided people.
“We only have to look across the Tasman to see how it all could have been done so much better. Thanks to the Treaty of Waitangi in New Zealand where two peoples became one nation.”
My time recently spent at the Tent embassy in Canberra made it clear that all I had been taught over the past 35 years had been flawed and with that so had my ideals on what drives both the aboriginal community and indeed our parliament.
It is past time we as settled Australians stopped blaming the Aboriginal people for the short comings of our own government.
I grew up believing the 26 of January was a day of celebration, the day our fine nation was born, for the aboriginal people this day holds a different significance, the day they were invaded, just like we as Australians morn the losses on ANZAC day, the original people of these lands morn the beginning of an invasion that resulted in the rape, murder and destruction of their people and their country.
So many settled Australians continue to say “leave it in the past” and unite to celebrate Australia day, without truly understanding what this day means to the aboriginal people, something I feel is the direct result of we as settled Australians having very little knowledge of our nation’s true history and foundations.
Saying sorry may be a fine gesture, but it will never have any true meaning until we can honestly embrace our past and use its lessons as a driver to understand the way forward.
While you are reading this, Aboriginal children are still being taken from their families, the land is still being destroyed, and governments are still telling our sovereign people where to live, how to live and how to spend their money.
So this is not just about the day the tall ships landed, it is about the treatment and persecution over the next 200 years or more that have been left out of the history books, the stories that would have brought about the genuine understanding and empathy needed to unite us as a nation.
The Aboriginal people can receive apologies for the slaughter of their people, the theft of their children, and the destruction of their lands, but that will do nothing to heal the past or improve the future, while we continue to deny their sovereignty or refuse their right to self-determination.
Let us as a nation hope and pray that the time will come where we can create a new date that can be celebrated by a united Australia, one that respects and honours the rights and liberties of every person living in this great country.
Emmy and Bafta winning film-maker and journalist John Pilger journeys into Utopia, a vast region in northern Australia and home to the oldest human presence on earth. UTOPIA is a journey into that sec...
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