OPINION: After settlers arrived in the US, Canada and New Zealand, they signed treaties with the local indigenous peoples. These were often unfair in favouring the interests of the settlers. Nonetheless, they recognised indigenous sovereignty, provided redress and established a basis for coexistence. These agreements persist to the present day.
When the British founded a colony in Australia in 1788, no treaties were signed. Instead, Aboriginal people were dispossessed due to the legal fiction that the continent was terra nullius, or no man's land. This conveniently applied the so-called "barbarian" theory, which held that some indigenous peoples are "so low in the scale of social organisation" that the law need not recognise their rights and interests.
The difference between Australia and these other nations is stark. Only Australia fails to recognise the sovereignty of its first nations by way of a treaty.
The effects have been devastating. The absence of a treaty meant that Australia could be created in 1901 by ignoring Aboriginal peoples. They were set aside as a "dying race" that would not survive white settlement. The Constitution even declared that they were not to be counted in reckoning the numbers of people in the new Commonwealth. This reflected the belief that Aboriginal people should be denied the vote, and so not included in electoral calculations.
Prime Minister John Howard rejected the idea of a treaty for Australia, saying a "nation … does not make a treaty with itself". His statement is nonsensical, and defies reality.
In 1962, Aboriginal people were finally granted the vote in federal elections. In 1967, the Constitution was changed to permit them to be counted, and to enable the federal Parliament to make laws for them. Unfinished business still remains. The Constitution today only speaks of Australia from the time of British settlement, and does not mention the stories and history of Aboriginal people. It also embodies racial division by recognising that states can disenfranchise people because of their race, and permitting the federal Parliament to grant or deny rights on this basis.
These problems will hopefully be rectified if Australia finally comes to vote on Indigenous recognition after the next federal election. The process towards that goal begins afresh today when Prime Minister Malcolm Turnbull's referendum council meets for the first time.
The council will have to grapple with the fact that constitutional change is not the only reform being pressed. As the recognition debate has drifted, the call has grown louder among Aboriginal people for a treaty. Some want a treaty instead of constitutional reform. Others demand both.
A treaty is not an alternative to constitutional change, and indeed the two can proceed side by side. Constitutional recognition is narrowly focused in dealing with Australia's framework of government. A treaty on the other hand is a negotiated settlement that could remedy the defects in how Australia was settled. It could provide redress for historic claims and enable a new agenda of Aboriginal self-empowerment.
Treaties also typically recognise the sovereignty of indigenous peoples, subject to the laws of the new nation. This concept may seem radical in Australia, but it is we who are exceptional. In every other comparable nation, treaties and indigenous sovereignty are a fact of life. Even US President George W Bush affirmed in 2001 that: "My administration will continue to work with tribal governments on a sovereign to sovereign basis."
A year before, Prime Minister John Howard rejected the idea of a treaty for Australia, saying a "nation … does not make a treaty with itself". His statement is nonsensical, and defies the reality of how the US, Canada and New Zealand are governed. They recognise that a nation built upon the ancestral lands of another community can recognise a measure of shared sovereignty, and that this is best achieved by a treaty.
For many years, the Australian debate has been blind to these realities. This makes former prime minister Paul Keating's recent comments on the reconciliation of Australia's national identity with our Indigenous heritage all the more welcome. His intervention reminds us of a different era in which Australia came close to developing a treaty.
Work towards a treaty began under the Fraser government. A national consultation was initiated in 1979, culminating in a report of the federal Parliament that recommended the government consider a treaty. Prime minister Bob Hawke went a step further in 1988. He promised: "There shall be a treaty negotiated between the Aboriginal people and the government on behalf of all the people of Australia." He said this might be concluded before the end of that term of Parliament, but no treaty eventuated.
Such commitments reflected popular support. In 2000, a poll found 53 per cent of Australians favoured a treaty, with 34 per cent opposed. The idea only went off the agenda when it was firmly rejected by Howard, and since then no prime minister has championed it. However, it will not go away. We will need a treaty if we are to redress past wrongs and achieve a better foundation upon which to reconcile the interests of Indigenous peoples and those who have come to share their lands.
George Williams is the Anthony Mason Professor of Law at UNSW.
This opinion piece was first published in the Sydney Morning Herald.