The Victorian Aboriginal Forum in 2016 put treaty talks at the top of the agenda. South Australia has appointed a Commissioner for SA treaty talks, and community consultations throughout Australia for constitutional recognition have been consistently sidelined by treaty discussion.
One thing is certain, treaty is well and truly still on the agenda, and momentum is gaining.
Despite having never ceded sovereignty over this land, our rights as sovereign peoples has still never been meaningfully recognised. Because the rights of Indigenous people are not protected under existing laws to the extent that any semblance of self-determination, social justice and well-being can be achieved.
Despite ongoing attempts to sanitise Australian history, we know that, under English law at the time of Governor Phillip’s claim, there were three legal regimes under which a colony could be acquired:
1. Settlement – where territory is uninhabited and the ‘settlers’ brought English law with them;
2. Conquest – where territory was inhabited and the native laws survived provided they weren’t discordant with laws of the crown; or
3. Cession – where the territory was inhabited and the sovereignty was ceded to the Crown and the applicable law would be determined by agreement, but in the absence of any agreed changes, local law would continue to apply.
I am at a loss to conceive by what tenure we hold this country, for it does not appear to be that we either hold it by conquest or by right of purchase.
The prevailing legal doctrine was that Australia was acquired through settlement, despite the presence of an Indigenous population, because the English common law contained a definition of ‘uninhabited lands’ which considered lands uninhabited if they contained peoples ‘uncivilised’ by the 18th century English norms.
Ultimately, through the doctrine of terra nullius – Indigenous people were subverted as 'savages' and this was integrated into the Australian Constitution which was drafted on the premise of Indigenous people being so inferior as to barely garner a mention, and considered to be a 'dying race' in any event.
Terra nullius was a deliberate social construction designed to enable colonisation, one parcel of land at a time, to enable expansion of colonial settlements and to do so without any compensation to the lawful owners.
The illegality of the actions of the Crown was clear even as far back as 1832 where the Chief Protector of Aborigines at Port Philip, George Robinson wrote;
Terra Australis vs Terra Nullius Source: Dr Andrew Cannon
"I am at a loss to conceive by what tenure we hold this country, for it does not appear to be that we either hold it by conquest or by right of purchase."
This is not new to Indigenous people, we know that this country was not ‘settled.’ We know that sovereignty was not ceded. It is this disparity of understanding between what we know and what white Australia is told happened that we need to overcome.
This is a critical point to the success or failure of any cause – the truth and the wide acceptance of truth as fact. The average Australian simply does not know enough about the fight for equality and rights that the Indigenous people have been waging for 229 years.
1967 Referendum – A new hope? Some Australians may recall the 1967 Referendum and all of the hope and positivity surrounding the concept of equality in the lead up to the vote. Many still think that following this purportedly momentous event in Australian history that Aboriginal people then had the equality they fought for. Largely though, the 1967 Referendum did not change the day to day lives of Indigenous people, nor the policies imposed upon them.
In 2017 we have the highest levels of child removal in Australian history, igniting fears of a new generation of stolen children. We have the highest rates of Aboriginal incarceration since the Aboriginal deaths in custody Inquiry and we have governmental policies that are hurting communities and causing greater hardship for Indigenous people, such as the cashless welfare, community closures and consent to issue mining licenses on cultural lands.
The Referendum was a defining moment in Indigenous history, but it fell well short of improving the lives of Indigenous people – especially when the Indigenous population is only 3 percent of the national vote.
Treaty – but why?
I have been an advocate for treaty since I was a child, so my bias is self-evident however, I do believe that Treaty is the mechanism in which we can hold the government to account for past and present atrocities, it is our means of asserting our sovereignty and ensuring the structures that will see our communities flourish are funded.
Under the current arrangement we are at the whim of the government with respect to which policies are imposed upon communities and the vast majority are done without any community consultation but rather as an extension of ethnocentric condescension in a bid to push the assimilation agenda.
One of the foundational principles of a treaty would be self-determination. Without communities in the driver’s seat of their future, the gap will continue to widen between Indigenous and non-Indigenous Australians.
We have spoken about Treaty and know it is the answer for our people and we need to come together now - unity for our children and children's children, but most of all - for our ancestors that paid for this land with their blood. We need to think, speak and act collectively for our people. Treaty will not cure all that ails our people, but it starts a new chapter, reinvigorates pride and gives us an opportunity to take the first steps toward a new foundational document rather than amending the existing one borne of oppression.
Non-Indigenous Australians would prefer not to think of the past due to guilt or shame or apathy, however, this does not need to continue. The act of creating a treaty between Indigenous and non-Indigenous Australia would provide not only a basis for which future relations are established, but it will create a legacy for future generations to look upon with pride. Whilst the history of this nation is turbulent, it does not have to be looked upon with shame forever. Rather than continuing the status quo of oppression – the current generation of people in this country can be a part of something that brings the country pride.
Australia can become a nation proud of its rich cultural history and all that it entails by enacting a treaty which effectively conciliates the issues of contention between Indigenous and non-Indigenous Australians. It can be the final declaration and acknowledgement of Indigenous sovereignty and a compact that dictates future relations and entrenches the requisite protections for Indigenous people.
Artist Sarah Firth's graphic impression of Victoria's treaty forum. Source: Sarah Firth
A treaty is not a cure all, I know this, but it is the chance to be on a level playing field in deciding the future of this country for both Indigenous and non-Indigenous Australians. Let our legacy be of hope.
A ‘Women speak out for Treaty’ forum will be held at Redfern Community Centre tonight, Wednesday 22 March at 6pm. Panelists include East Arrernte woman Amelia Pangarte Kunoth-Monks, Gunnai & Gunditjmara woman Lidia Thorpe, Wiradjuri woman Lynda-June Coe and Natalie Cromb, the author of this article, who is a Gamilaraay woman.
Young Women speak out for Treaty Source: Supplied
