Nettheim, Garth --- "Review of Treaty by Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams" [2005] AUJlHRights 11; (2005) 11(1) Australian Journal of Human Rights 11

Treaty

by Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams

The Federation Press, Sydney, 2005, 155 pages

This book is the outcome of a three year research project conducted by the Gilbert + Tobin Centre of Public Law in association with Reconciliation Australia and with funding from the Australian Research Council and the Myer Foundation. Sean Brennan was Director of the Project for the Centre. Professor George Williams is Director of the Centre. Professor Larissa Behrendt headed the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. Dr Lisa Strelein is Manager of the Native Title Research Unit at the Australian Institute of Aboriginal and Torres Strait Islander Studies.

The four authors bring considerable and wide ranging experience to the consideration of a possible treaty between Indigenous Australians and governments. They proceed on the basis that such a treaty ‘might address a big problem of principle’ — namely, ‘the consent of the natives’, in the words of the Admiralty’s 1768 instructions to Captain Cook — ‘at the same time as hoping to fix a set of very practical problems’, notably the disparities for Indigenous Australians shown by the various socio-economic indicators. The Preface defines key questions to be addressed as including the following.

• What practical difference might a treaty make in people’s daily lives?

• Is the issue of sovereignty a roadblock to progress?

• What can we learn from overseas?

• Does native title offer a basis for treaty making?

• How could you go about instituting a treaty making process in Australia?

The book is admirably concise and accessible, comprising eight chapters and 155 pages of text. It is preceded by two thoughtful Forewords from the Rt Hon Malcolm Fraser AC CH and Professor Marcia Langton AM.

Chapter 1, ‘The treaty debate’, notes the absence of any Australian treaties, and also the exclusion of Indigenous Australians from the process of developing the Australian Constitution, and from its terms. The legacy continues in ‘the statistics’, and these and other items of ‘unfinished business’ need to be addressed before ‘reconciliation’ can be achieved. Proposals for a treaty are broken down into three key elements:

• a starting point of acknowledgement;

• a process of negotiation; and

• outcomes in the form of rights, obligations and opportunities.

There is also a choice to be made as to the question ‘One treaty or many treaties?’. Or, should the answer be ‘Both’? The chapter concludes with recent history about the reconciliation process, the recognition of native title, and the policies and actions of the Howard Government.

Chapter 2, ‘Treaty at the policy and practical level’, considers ‘some of the practical ways in which a treaty could impact on the day-to-day lives of Indigenous people in areas like health and economic development’. It identifies some of the problems in government policy making and service delivery that contribute to the continuation of these problems: for example, the lack of co-ordination of effort within governments, and between the various levels of government. In addition, the authors say that there is too much dependence on government and too little emphasis on effective Indigenous participation. Recent attempts to overcome these problems are noted. As to whether a treaty would make a difference, they conclude that ‘[t]here are good reasons to think that the answer could be yes’.

Chapter 3, ‘Indigenous peoples and the law’, starts by noting their historical exclusion from the protections of law and, indeed, their excessive subjection to law. The history is traced from the first settlements, through federation, up to the 1967 amendments to the Commonwealth Constitution, and on to the 1992 landmark Mabo decision (Mabo v Queensland (No 2) (1992) 175 CLR 1). At the level of legislation, the story considers the various ‘protection’ acts and follows through to recent decades with the several land rights acts, legislation for heritage protection, native title and so on. The very recent abolition of the Aboriginal and Torres Strait Islander Commission is noted, and so is the increasing significance of international law. The chapter ends by rejecting the propositions that it is ‘too late in the day’ for a treaty (or treaties); that calls for a treaty show an obsession with the past; and that a treaty would ‘break up the nation’.

Chapter 4 addresses ‘The question of sovereignty’. It explores the different meanings that have been given to the word, particularly meanings attached to it by various Indigenous people. The authors discuss means of resolving perceived difficulties, and considers the experience of Canada, the US and New Zealand. Their conclusion is that the concept of sovereignty does not provide a significant roadblock, and places ‘few constraints on the choices available and the outcomes that can be reached’.

Chapter 5, ‘What can we learn from overseas?’, provides a more detailed discussion of the experience of treaty making in Canada, the US and New Zealand, and seeks to find lessons for Australia from the successes and failures in those nations. The authors conclude that a treaty can make a fundamental difference to the relationship on a number of levels, and that the overseas experiences provide ‘insights on how Australia might seek to avoid some of the failures of those other nations while also recognising the benefits that can flow from establishing a new beginning in the relationship between Indigenous people and government’.

Chapter 6, ‘What can native title offer?’, considers Australian experience since the belated recognition in 1992 of native title, including the negotiation of Indigenous Land Use Agreements (ILUAs) and other agreements. It also notes some of the limitations of existing approaches that are reflected in the native title experience. The authors go on to consider ‘four opportunities arising from native title that relate to the pursuit of a modern treaty making process ... and four limitations in native title that might also encourage consideration of a broader process such as treaty-making’.

As to ‘opportunities’, the authors note the following.

• Mabo recognised Indigenous governance or jurisdiction through Indigenous people’s own laws and customs.

• Native title provided Indigenous people with a bargaining position based on inherent legal rights.

• The Native Title Act 1993 (Cth) creates structures and opportunities for negotiating coexistence, primarily through the 17 Native Title Representative Bodies around Australia, under-resourced and overloaded though they are. And provisions in the Act for binding legal agreements, including ILUAs, create the potential for broader non-native title outcomes to be negotiated. Several examples are mentioned.

• Native title outcomes may provide a platform for broader political arrangements, as in the East Kimberley, or in southwest WA, or in the Yorta Yorta nation and its neighbours.

As to ‘limitations’ in relation to the native title system, the authors note the following.

• The benefits of native title are unevenly distributed — in particular, it is less likely to be recognised in the longer settled parts of Australia.

• Native title has been placed in a framework that limits outcomes — it is highly legalistic, and particularly restrictive on issues of ‘connection’ and ‘extinguishment’.

• The legal and constitutional basis for native title is insecure.

• National issues cannot be addressed, as native title is situation specific.

The authors propose that:

... consideration should be given to creating a legal pathway out of the native title system for many of the hundreds of groups currently caught within it. The pathway could lead them onto a treaty track, a comprehensive agreement making process that would also be available to those not currently involved in native title.

Chapter 7, ‘Models for an Australian treaty’, considers ‘different models for a treaty that have been put forward, including the idea of a national framework agreement under which most processes return to the local, regional or State wide level’. It also looks at ‘the important issue of who might sign such a treaty on each side of the table and the possible elements in an Australian treaty-making process’. It considers what a treaty might contain and what legal status it might have.

In Chapter 8, ‘The path forward’, the authors consider strategies that might be needed to achieve a treaty making process in Australia. In particular, the discussion proceeds in the context of a treaty amendment to the Constitution so as to entrench a treaty process. The authors conclude the chapter, and the book, with the following remarks:

A treaty is not a panacea. A national agreement or a range of sub-national treaties around the country will not solve all of the problems confronting Indigenous people and the wider Australian community. The experience in Canada suggests that the journey to a treaty will be long, slow and hard. It involves risks to all those engaged in the process, including the ultimate risk of a failure to agree. However, the call for a treaty has been an insistent one. Its main appeal is in putting negotiation front and centre in dealings between government and Indigenous peoples. It offers a process broad enough to address both the practical and the symbolic and, as a foundational document for a renewed society, it can speak to the past, the present and the future.

The treaty debate can be daunting. There are many aspects to be considered and many options to be explored. The authors of this slim volume are to be congratulated for their success in grappling with the key aspects and the principal options, and in presenting them in such a clear and readable form.

Garth Nettheim

Emeritus Professor Faculty of Law University of New South Wales