Step by Step: The Road to a Set­tle­ment

The Monthly (Australia) - - CONTENTS - Com­ment by Megan Davis

As the na­tion waits with bated breath for the next it­er­a­tion of Clos­ing the Gap – an art­fully de­cep­tive project ti­tled “Clos­ing the Gap Re­fresh” – a much older and even more pil­lo­ried Com­mon­wealth pol­icy of shared re­spon­si­bil­ity agree­ments is be­ing given new life un­der the nom­i­nal guise of “Treaty”. Shared re­spon­si­bil­ity agree­ments were first in­tro­duced in 2004 as part of the fed­eral gov­ern­ment’s “new ar­range­ments” be­tween In­dige­nous peo­ples and the state. This in­volved com­mu­ni­ties ne­go­ti­at­ing core in­fra­struc­ture or ba­sic ser­vices in ex­change for be­havioural change. These agree­ments in­cluded the lyri­cally pa­ter­nal­ist no school, no pool. But treaties are not ser­vice-de­liv­ery agree­ments. They are not a means to rub­ber stamp the sta­tus quo. The un­co­or­di­nated pur­suit of treaty across the fed­er­a­tion cre­ates a quandary for Abo­rig­i­nal and Tor­res Strait Is­lan­der peo­ples. There is a real risk of fur­ther em­bed­ding the cur­rent power im­bal­ance that the Uluru State­ment from the Heart sin­gled out as the tor­ment of our pow­er­less­ness. Treaties are foun­da­tional con­sti­tu­tional agree­ments be­tween First Na­tions and the state that in­volve a re­dis­tri­bu­tion of po­lit­i­cal power. Treaties are agree­ments aimed at set­tling fun­da­men­tal griev­ances, and es­tab­lish­ing bind­ing frame­works of fu­ture en­gage­ment and dis­pute res­o­lu­tion. Treaties are le­gal frame­works, so there will be dis­putes over in­ter­pre­ta­tion. Treaties are not blank can­vases on which gov­ern­ments and over­bear­ing bu­reau­crats can present the sta­tus quo. Con­sider this from the North­ern Ter­ri­tory gov­ern­ment, which at Barunga last month signed a mem­o­ran­dum of un­der­stand­ing on a treaty in its ju­ris­dic­tion: “In­stead of a one-off repa­ra­tion paid out for past in­jus­tices and for Abo­rig­i­nal land and re­sources, a treaty could mean that the Gov­ern­ment pro­vides money for ed­u­ca­tion or hous­ing, and the com­mu­nity takes re­spon­si­bil­ity for how it is de­liv­ered lo­cally.” Um. Treaties are about repa­ra­tions for past in­jus­tices and about land and re­sources. How can these things be ex­cluded? The NT gov­ern­ment should not be fenc­ing in treaty ne­go­ti­a­tions like this at the MOU stage. These wildly os­cil­lat­ing def­i­ni­tions have emerged be­cause Aus­tralia, while ex­pe­ri­enced in agree­ment­mak­ing due to the na­tive ti­tle and the vary­ing statu­tory land-rights regimes achieved with­out treaty, is green when it comes to treaty-mak­ing. There are sug­ges­tions that the Noon­gar set­tle­ment in Western Aus­tralia was

the na­tion’s first treaty, oth­ers say it is “treaty-like”; some say all In­dige­nous land use agree­ments are treaties, and oth­ers that a treaty sim­ply maps out rules of en­gage­ment. Many say a treaty must in­volve recog­ni­tion of Abo­rig­i­nal sovereignty while oth­ers say it’s about ser­vice de­liv­ery. Ev­ery­thing and noth­ing is a treaty. We have a dis­cur­sive un­der­stand­ing of treaty be­cause we are retrofitting that which should have been done at first con­tact. Across the fed­er­a­tion now, we hear of bu­reau­cra­cies seek­ing to em­bed in treaty agree­ments their con­tem­po­rary poli­cies, such as lo­cal de­ci­sion-mak­ing frame­works mis­guid­edly char­ac­terised as the right to self-de­ter­mi­na­tion. Self-de­ter­mi­na­tion at the end of the ATSIC era meant re­gional au­ton­omy in some places. More than a decade on, we have al­lowed self-de­ter­mi­na­tion to be mis­shapen into a mantra of “do­ing things with com­mu­ni­ties not do­ing things to In­dige­nous com­mu­ni­ties”; an ex­tra­or­di­nary jet­ti­son­ing of a pur­pose­fully eman­ci­pa­tory nor­ma­tive frame­work of col­lec­tive rights en­dorsed by the United Na­tions Gen­eral Assem­bly in 2007. Treaty should be about ex­pelling bu­reau­crats from In­dige­nous af­fairs, not en­trench­ing the power im­bal­ance. A sub­stan­tive treaty has al­ways been the pri­mary as­pi­ra­tion of the Abo­rig­i­nal and Tor­res Strait Is­lan­der move­ment. Per­haps that is why some peo­ple were con­fused last year when a se­ries of 12 First Na­tions Re­gional Di­a­logues, fol­lowed by the First Na­tions Na­tional Con­sti­tu­tional Con­ven­tion at Uluru, adopted a con­sti­tu­tion­ally en­shrined Voice to Par­lia­ment as the prin­ci­pal con­sti­tu­tional re­form. This much should be clar­i­fied: these re­gional di­a­logues didn’t un­der­mine the as­pi­ra­tion for treaty, they de­signed a se­quenced re­form in which a Voice to Par­lia­ment is the first step, and treaty-mak­ing fol­lows. After the de­struc­tion wrought by the In­dige­nous Ad­vance­ment Strat­egy (IAS) – a fed­eral gov­ern­ment pol­icy es­tab­lished in 2014 that has seen fund­ing ripped out of com­mu­ni­ties, with the bulk of it shift­ing to non-In­dige­nous hands – par­tic­i­pants in the con­sti­tu­tional di­a­logues were un­equiv­o­cally at­tracted to a Voice. The dam­age caused by the IAS dom­i­nated con­sid­er­a­tions of con­sti­tu­tional recog­ni­tion; with­out un­der­stand­ing this you can­not un­der­stand the need for se­quenced re­form as de­fined at Uluru. The Aus­tralian Na­tional Au­dit Of­fice found that the IAS strat­egy was planned and de­signed in seven weeks! Seven weeks it took to un­ravel the last ves­tiges of self-de­ter­mi­na­tion started 43 years ago in 1975. The au­dit of­fice also found that the grants ad­min­is­tra­tion pro­cesses adopted un­der the IAS “fell short of the stan­dard re­quired to ef­fec­tively man­age a bil­lion dol­lars of Com­mon­wealth re­sources”. And as as­serted by many com­mu­ni­ties at the time, the rea­sons for los­ing fund­ing were not com­mu­ni­cated. It also found that the “ba­sis by which projects were rec­om­mended to the Min­is­ter was not clear” and the de­part­ment did not “as­sess ap­pli­ca­tions in a man­ner that was con­sis­tent with the guide­lines and the de­part­ment’s public state­ments”, nor did it keep records of key de­ci­sions. So much for the great na­tional mythol­ogy: that the “Abo­rig­i­nal in­dus­try” ben­e­fits Abo­rig­i­nal peo­ple. As Noel Pear­son told The Aus­tralian, “Most Aus­tralians have no idea that the great­est ben­e­fi­cia­ries of in­vest­ment of in­dige­nous funds are non-in­dige­nous or­gan­i­sa­tions not based in the com­mu­ni­ties in whose name the ex­pen­di­ture has been jus­ti­fied by par­lia­ment.” The First Na­tions Re­gional Di­a­logues se­quenced the road to a set­tle­ment: Voice, Treaty, Truth. Ap­prox­i­mately 1300 Abo­rig­i­nal and Tor­res Strait Is­lan­der peo­ples

Yet these treaty cham­pi­ons can’t tell you how treaty would be achieved, or who it would be ne­go­ti­ated with, or for whom.

par­tic­i­pated in the di­a­logues, 60 per cent of whom came from tra­di­tional owner groups. In other words, the di­a­logues rep­re­sented a ma­jor­ity of the first na­tions cul­tural au­thor­ity in Aus­tralia. We heard sto­ries about the way in which na­tive ti­tle had torn com­mu­ni­ties and fam­i­lies apart. We heard the call for dis­pute-res­o­lu­tion ser­vices in com­mu­ni­ties be­fore agree­ment-mak­ing could oc­cur. We heard com­plaints about land-gover­nance struc­tures. The sit­u­a­tion on the ground is com­plex. The di­a­logues found that agree­ments needed to be many, with mul­ti­ple First Na­tions; not a sin­gle pan-Abo­rig­i­nal treaty in which na­tions are sub­sumed by a re­duc­tion­ist con­cept of cul­tural au­thor­ity. Even so, as Aus­tralia is a fed­er­a­tion, di­a­logues dis­cussed how co­or­di­na­tion across the Com­mon­wealth was es­sen­tial for co­herency of agree­ment-mak­ing. After the con­sti­tu­tional con­ven­tion at Uluru (and prompted by Prime Min­is­ter Mal­colm Turn­bull’s re­jec­tion of a Voice to Par­lia­ment), some de­cided to ig­nore the se­quenc­ing of Voice, Treaty, Truth, and have in­stead de­manded only treaty. As if the fed­eral gov­ern­ment, hav­ing re­jected a Voice – a mod­est but pow­er­ful re­form that en­hances In­dige­nous par­tic­i­pa­tion in the demo­cratic life of the state – would in­stead sud­denly em­brace shared sovereignty and repa­ra­tions. So-called al­lies trans­formed overnight from con­ser­va­tive cham­pi­ons of sym­bol­ism and in­cre­men­tal­ism to – “Treaty, now!” – tak­ing ad­van­tage of the heavy lift­ing done by the di­a­logues and Uluru to cher­ryp­ick re­form. Yet these treaty cham­pi­ons can’t tell you how treaty would be achieved, or who it would be ne­go­ti­ated with, or for whom, let alone what re­sources com­mu­ni­ties have now and what they need, or how power im­bal­ances are to be ad­dressed when na­tions have very lit­tle lever­age. It is those at the di­a­logues who thought deeply about these ques­tions. And they thought deeply about them based on a re­al­is­tic pic­ture of where com­mu­ni­ties are now. There are many risks in an un­co­or­di­nated ap­proach to treaty-mak­ing. Aus­tralia is a fed­eral sys­tem, and the

Com­mon­wealth rules the roost. It can over­ride any con­flict­ing treaty pro­vi­sion. The ju­ris­dic­tion with the big­gest risk is the North­ern Ter­ri­tory, be­cause it is a ter­ri­tory. Gu­matj leader Galar­rwuy Yunupingu called this out fol­low­ing the sign­ing of the Barunga treaty mem­o­ran­dum. “None of the land coun­cils can tell me any­thing about treaty,” he said. “What does the word ‘treaty’ mean? Noth­ing. It means noth­ing to Yol­ngu peo­ple.” And as for­mer Tan­gen­tyere Coun­cil CEO Geoff Shaw stated at Barunga, treaty talks would be mean­ing­less with­out con­sti­tu­tional re­form, be­cause “the strength is within the Con­sti­tu­tion”. Even so, peo­ple point to ev­i­dence of treaty mo­men­tum in other parts of the coun­try too. Vic­to­ria’s process, for ex­am­ple, is led by a Treaty Ad­vance­ment Com­mis­sioner, the for­mi­da­ble and whip-smart Jill Gal­lagher, a Gun­ditj­mara woman from the state’s south-west, who is one of the most im­pres­sive Abo­rig­i­nal lead­ers I have ever en­coun­tered. Gal­lagher says Vic­to­ria can’t sit back and wait for the Com­mon­wealth to come to the ta­ble. As was ac­knowl­edged at the Uluru and re­gional di­a­logues, the or­der is im­por­tant. Vic­to­ria has set­tled on a two-phase ap­proach, the first of which is to cre­ate an “Abo­rig­i­nal Rep­re­sen­ta­tive Body, a demo­cratic voice to rep­re­sent Abo­rig­i­nal Vic­to­ri­ans in the next stage of the jour­ney to treaty”. Of course it helps to be clear headed about what’s go­ing on: treaty ne­go­ti­a­tions are pro­gress­ing in less­con­ser­va­tive ju­ris­dic­tions. (Soon after South Aus­tralia changed po­lit­i­cal stripes, treaty talks were dis­banded.) These states and ter­ri­to­ries are in­no­vat­ing be­cause the Com­mon­wealth is fail­ing, which is ex­actly how a fed­er­a­tion should work. The voice to par­lia­ment is not an orig­i­nal idea. It is as old as the calls for treaties. Abo­rig­i­nal and Tor­res Strait Is­lan­der peo­ples have al­ways wanted an en­hanced role in de­ci­sion-mak­ing in Aus­tralia’s democ­racy. Hav­ing a role in democ­racy, though, does not mean that the bu­reau­cracy should be the con­duit of that par­tic­i­pa­tion. Es­pe­cially when the bu­reau­cracy has a pen­chant for new-age phi­los­o­phy: for mob find­ing the power “within” as op­posed to gain­ing struc­tural power. In­dige­nous peo­ples in other lib­eral democ­ra­cies get con­sti­tu­tional re­form; we get An­thony Rob­bins af­fir­ma­tions as pol­icy. All the pos­i­tiv­ity in the world will not change the sta­tis­tics in child re­movals and youth de­ten­tion, the two con­cerns voiced in the Uluru State­ment. Paul Toohey writ­ing in the NT News ex­co­ri­ated the prime min­is­ter for his el­e­va­tion of suc­cess sto­ries in his Clos­ing the Gap speech. Toohey rightly called out Turn­bull for “avert­ing his gaze”. High­light­ing struc­tural prob­lems is not about high­light­ing deficits. Talk­ing about pow­er­less­ness and voice­less­ness is not to strip peo­ple of agency. We know our peo­ple have in­ner strength and are re­silient. But we are not talk­ing about per­sonal or cul­tural power, we are talk­ing about struc­tural power. Agency still needs struc­tural re­form. The di­a­logues were re­al­is­tic about how white­fella law works and how con­ven­tional law re­form is done. The di­a­logues spoke prag­mat­i­cally about how the law can com­pel the gov­ern­ment to lis­ten. This is the majesty of the force of law. In­evitably, we, as Abo­rig­i­nal and Tor­res Strait Is­lan­der peo­ples, have to man­age the ti­tanic ex­pec­ta­tions of com­mu­nity that come with utopian ideals of treaty. After all, much of what would be done via treaty has

All the pos­i­tiv­ity in the world will not change the sta­tis­tics in child re­movals and youth de­ten­tion, the two con­cerns voiced in the Uluru State­ment.

al­ready been done through land rights and other statu­tory regimes. Treaty is not an end, it is the be­gin­ning of the state ac­knowl­edg­ing our griev­ances. Other ju­ris­dic­tions in the world show us that post treaty-mak­ing can be messy and le­gal­is­tic. And in the clam­our­ing to ne­go­ti­ate and sign treaties, we risk the uned­i­fy­ing prospect of mob jet­ti­son­ing sovereignty through a mis­man­aged treaty process, when that was the rea­son so many es­chewed con­sti­tu­tional recog­ni­tion in the first place. Our sovereignty has never been ceded – not in 1788, not in 1967, not with the Na­tive Ti­tle Act, not with the Uluru State­ment from the Heart. It co­ex­ists with the sovereignty of the Crown and should never be ex­tin­guished.

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