Barend Vlaardingerbroek: A treaty for the Australian Aboriginal?

Treaties are accepted around the world as a way of reaching a settlement between Indigenous people and those who have colonised their lands. New Zealand, for example, has the Treaty of Waitangi, an agreement signed in 1840 between the British Crown and over 500 Maori chiefs, while Canada and the United States have hundreds of treaties dating back as far as the 1600s…

A treaty could provide, among other things:

- a symbolic recognition of Indigenous sovereignty and prior occupation of this land…

- a basis for regional self-government guidelines for local or regional treaties…

... from the treaty-advocating website australianstogether.org.au

John Howard dismissed the idea with the observation that a nation does not make a treaty with itself; the notion of a treaty between the Australian federal government and indigenous Australians is nonetheless gaining traction.

The general idea that has emerged over the past years is that indigenous peoples of colonised countries constitute ‘First Nations’ the sovereignty of which was violated by colonisation, but that this encroachment can be compensated for to a large extent by the concluding of treaties between those First Nations and imperial or national authorities. All Commonwealth countries with indigenous populations except Australia have done so, asserts the website quoted from above, and so it is time for Australia to catch up.

Strictly speaking, a treaty is an instrument of international law and can be entered into only between sovereign nation-states. However, they have been important accessories of the imperial land annexation process as well. Imperial powers, particularly Britain, went overboard with treaty-making in the second half of the 19^th century, especially in Africa where they were used to curry favour with local strongmen and thereby gain their loyalty vis-à-vis competing colonial powers – some 350 in the Niger Delta alone according to the International Court of Justice in the case of Cameroon v Nigeria 2002. But the Court held that such treaties did not have the force of international law behind them either then or now because of the absence of nationhood criteria being met (refer to my article “The kings and chiefs of Old Calabar and old NZ”, Breaking Views 5 August 2014).

During the colonial era, the concept of nationhood was applied to ‘savage’ (to use the term in its pre-20^th century sense) peoples whose level of political sophistication appeared to warrant it. The Montevideo Convention of 1933 was largely a formalisation of prior customary rules and stipulates as criteria for nationhood a defined territory, a permanent population, a system of government, and the capacity to enter into relations with the other nation-states. Treaties were concluded between municipal powers and ‘savage’ nations, especially in North America where tribal entities such as the Sioux Nation were formally recognised as such. They occupied lands they called their own with defined borders that were recognised by neighbouring tribal nations, and exercised jurisdiction over those lands and anyone within them. The term ‘government’ has to be interpreted just a bit liberally, but these were peoples with well-defined political structures headed by paramount chiefs whose word was the tribe’s bond.

Like any modern state, the North American Indian Nations had defined territories within recognised borders – a critical criterion for nationhood

The term ‘First Nations’ is of Canadian origin and harks back to the 11 ‘Numbered Treaties’ with indigenous peoples between 1871 and 1923. This period was, of course, after Canada’s independence, and so those treaties did not come under international law. But they do strike me as being a continuation of a process that began in the 17^th century between imperial powers and the indigenous peoples of North America, and so we’ll run with the idea.

First Nations are tribal nations. They are not simply an assorted mixture of indigenous peoples. There was never any treaty concluded with American Indians en masse. The rather silly notion of a treaty in the singular with indigenous peoples as a unitary entity stems from the neo-Marxist ‘vertical’ view of the evil colonial powers dispossessing, oppressing, exploiting, etc., the poor natives seen as a homogeneous unit. This view underpins the self-determination articles in the 1966 International Covenants (see my article “The nebulous right of self-determination”, Breaking Views 3 May 2016). It overlooks the often uneasy and sometimes antagonistic ‘horizontal’ relations between native tribal populations.

In the case of NZ, there was certainly no Maori First Nation in the singular as there was no federal set-up with a central seat of power. The First Nations plural model appeals, although the high number of signatories to the Treaty of Waitangi suggests that the British were signing up any local leader who saw which side his bread was buttered, much like their prolific treaty-making in Africa a little later. Both the Declaration of Independence and the Treaty are nevertheless consistent with the actions of a confederation– an association of autonomous entities acting in tandem.

Now to Australia. This from the ‘Uluru Statement From the Heart’ of May this year:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs… This sovereignty is a spiritual notion [and] is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown… We call for the establishment of a First Nations Voice enshrined in the Constitution.                     

They got the First Nations plural bit right. But we run into huge problems applying the First Nations principle to pre-colonisation Australia. Were there identifiable Australian First Nations on a par with the Sioux Nation?

With regard to territory and borders, the picture is a mixed one from inland clans engaged in circuitous walkabouts over large chunks of territory that were traversed by other bands at the same time to groups in fertile areas who were permanently settled but had to share their space with others, often far from harmoniously. While any given Aboriginal group will identify with a heartland, drawing lines on a map to delineate ‘their’ territory is impossible in many to most instances because of overlapping claims, all too often multiple ones.

The AIATSIS (Australian Institute of Aboriginal and Torres Strait Islander Studies) approach in compiling a Map of Indigenous Australia adds to rather than ameliorates the confusion:

[The Map] attempts to represent all of the language or tribal or nation groups of indigenous people of Australia. It indicates general locations of larger groupings of people which may include smaller groups such as clans, dialects or individual languages in a group. (emphasis added) (From the introduction to the map at http://www.abc.net.au/indigenous/map/ )

‘General locations’ of ‘groups’ who are rather nebulously delineated – they may not even speak the same language – will not cut the mustard as far as defining a First Nation goes. It is interesting to use the zoom facility on the above map – have a play-around in the more fertile areas such as Cape York and see for yourself the montage of micro-“language or tribal or nation groups” that emerges. And you can bet your bottom dollar many of those arbitrary lines on that map would be hotly disputed.

The hunter-gatherer lifestyle involves being constantly on the move over an area which is usually also traversed by other bands. The criteria of ‘defined territory’ and ‘permanent population’ become difficult to apply to any claim of nationhood and thereby to claims of sovereignty.

The Uluru Declaration is right about another thing – sovereignty was never ceded; but that was because there was no sovereignty to cede as there were no nations to claim it. Sure, they refer to sovereignty in ‘spiritual’ terms, but then they start talking constitutional recognition which is a decidedly un-spiritual legal notion. They are trying to have it both ways. As for ‘symbolic recognition’ of that pseudo-sovereignty through a treaty, I’ve got a funny feeling the symbol that will be most prevalent is the decidedly non-spiritual $ sign.

None of this, of course, stops the ideologues from bandying the term ‘First Nations’ around as though it had any foundation in reality. It’s become a buzz-term and buzz-terms have persuasive propaganda clout. I’m not sure what it would give them that Native Title doesn’t – but the allusion to ensuing second-tier (regional) and third-tier (local) treaties gives us a hint. You can lay quids on there being a host of plum ‘advisory’ jobs there for the elect. Sort of reminds you of the gravytrain some Maori tribal elites are on, huh? 

The notion of a treaty between Canberra and heaven knows how many Australian indigenous First-Nations-that-weren’t-and-aren’t is, in my opinion, a non-starter from even the most liberal First Nations-type treaty perspective. Don’t be surprised if it happens, though. The crowd pushing for it couldn’t care less about the nuances of treaty law any more than they care about real history, and Joe Ocker wouldn’t know the difference, or be bothered checking it out.

Barend Vlaardingerbroek BA, BSc, BEdSt, PGDipLaws, MAppSc, PhD is an associate professor of education at the American University of Beirut and is a regular commentator on social and political issues. Feedback welcome at bv00@aub.edu.lb