The discussion surrounding treaty, for me, is inherently frustrating. There are so many obstacles to treaty; from the lack of awareness of non-Indigenous Australians as to what a Treaty is and why on earth Indigenous people would want one; the political factions (Indigenous and non-Indigenous) competing between Treaty or Constitutional recognition as if it is a one or the other dilemma; and ultimately, the political machinations of how a treaty would be put together functionally to ensure maximum support of the Indigenous people and the government.
Despite many attempts to rewrite and sanitise history, we know that, under English law at the time of Governor Philip’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.
The prevailing legal doctrine is 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 not garner a mention and considered to be a fading race in any event.
Terra nullius was a deliberate social construction designed to enable settlement, 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;
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 about the fight for equality and rights that the Indigenous people have been waging for 227 years.
The don’t know that Indigenous people were the subjects of forced and violent dispersals from their cultural lands; they were the victims of massacres and murders; rapes and retributory attacks to any resistance; there were genocidal policies based on pseudoscience of Indigenous inferiority; there were sinister attempts to murder countless Indigenous people when the introduced diseases weren’t killing enough Indigenous people to the white man’s liking and there was a pervasive mindset of the Indigenous people being sub-human.
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 and think that following this purportedly momentous event in Australian history that the Aboriginal people then had the equality they fought for.
We know that is not the case, however, there are many generations - especially the younger generations, that are simply not taught about the history of this nation, that are not taught about the Indigenous culture beyond boomerangs and spears, they do not know that statistically we have the highest Indigenous incarceration rate compared to non-Indigenous people in the world, they do not know of our appalling mortality rates, they do not know about the welfare indicators that demonstrate Indigenous people are the lowest on the socio-economic pyramid.
This is not an indictment on the Australians that do not know, this is an indictment on the education system and those that draft the curriculum that perpetuates the ignorance that pervades our country and it is an indictment on main stream media for failing to report on the real issues, on the brave men and women agitating for the very thing that Australia hangs its hat on: A fair go!
A fair go cannot be achieved without a Treaty.
A Treaty would be the basis upon which the sovereign Indigenous people of Australia and the Government could negotiate the terms of rights to land, minerals and resources and the self-governing of communities. It would be a binding agreement that would have sanctions that would deter breaches of the terms of the treaty.
Whilst I advocate for treaty, I am not flippant in thinking that getting a treaty is going to be easy because it is the least palatable option for Governments because it holds them to a set of obligations that they ordinarily would not live up to.
Treaty is essential because 227 years after colonisation we remain at the bottom of the socio-economic pyramid; because after 227 years children are still being removed arbitrarily from Aboriginal families; because after 227 years racism remains rife in society and none more so against Aboriginal people; because after 227 years we are still being subjected to cruel punishments including water being switched off, communities being closed and being forced into work programs that provide less than the minimum wage and then having to buy groceries in government run shops that charge $6 for a kilo of flour.
To arbitrarily decide the fate of our people without our consultation and agreement will always be met with resistance.
And for those who champion the Recognise campaign and its intent to change the constitution to recognise Indigenous people, I say:
We have the benefit of hindsight and know that constitutional recognition, will not change the mortality or incarceration rates of our people. It will not stop the removal of children or turn the water back on in remote communities.
Constitutional change is symbolic, it is not a cure all.
A treaty is vital to the future of this nation, of this I am certain. But again, I do know that it is not a cure all.
A Treaty is the first meaningful step in ensuring that there is engagement of all in the success of its outcomes. It will leave Indigenous people empowered and part of something positive in history as opposed to disillusioned and disappointed at the millions of broken promises and setbacks we have suffered over the last 227 years.
The two critical elements to bridging the cultural divide, in my mind, are empathy and education.
In my mind, one cannot achieve true empathy without an education that sets the context for empathy. Education is critical and the education of this nation’s black history will provide the major shift in consciousness that we yearn for.
To evidence my point on the importance of education, I would like to share a poem with you. This poem was written by John Maycock following his absorption of the brutal history laid out in ‘Blood on the Wattle’ by Bruce Elder:
Now I gather on this land, enjoy the country seas and sky,
Yet, to enable me to do so, many had to die.
You see this land wasn’t empty, there were “natives” in the way,
And my invading “fathers”, came to end the “native’s” stay.
Of many places where I gather, there are stories to be told,
Of others here before me, that would probably send me cold.
But I do not know these stories, my “fathers” kept them hidden,
Buried in a colonial history, by the victors written.
For the “native” culture’s failure, under civilising forces,
It seems my civilising “fathers”, served up deadly courses.
Strychnine strudel and arsenic pie, a fare to make you cower,
Death pudding on the menu, in poisoned bags of flour.
Hidden from the history books, the poisoning of the water,
Along with guns and germs, the genocidal slaughter.
Driving cultural destruction, with alcohol and drugs,
The “civilising” machinations, of the colonising thugs.
So no more would they gather, nor their faces again be seen,
But it wasn’t me who did this, surely then, my hands are clean.
It was the hands of my “fathers”, and they’re not really me,
Besides it’s through their lens of history, that I am want to see.
Now this land that I am sitting on, today they call Australia,
And I would not be sitting here, but for the “native’s” failure.
Though ‘tis thanks to my “fathers”, who murdered “native” souls,
That it is now me and mine, gathered round the waterholes.
For I am white Australia, now the dominant power in the land,
My claimed right to be so, delivered by the civilising hand.
Yet my Indigenous brothers’ history, has a different tale to tell,
My white colonial “fathers”, brought an apocalypse from hell.
This poem was evocative for me because it illustrated the change in psyche upon understanding the truth of history and it also illustrated the realisation of the disingenuous platitudes of “it was my ancestors not me” or “it is history, move on.” These are comments that we Indigenous people here frequently and it is the height of insult, but one that cannot be understood without education.
People need to learn about Indigenous history and culture and do so with an open mind and pure heart. Once they know and truly understand and consider the impact such devastation would have on their lives, their well-being, their resolve to fight another day – only then will we really be able to have a meaningful discussion about what it is going to take to heal hurts and have hope for a future our ancestors would be proud of.
Treaty is the insurance policy we need that we can hold the government accountable for their actions so real gains can be made for the Indigenous people of Australia.