Baldry, Eileen --- "Comment on a Treaty between Indigenous and Non - Indigenous Australians" [2002] IndigLawB 81; (2002) 5(21) Indigenous Law Bulletin 23
Comment on a Treaty between Indigenous and Non-Indigenous Australians
by Dr Eileen Baldry
What is the point of a treaty? I understand a treaty to be a legal settlement, a statement of acknowledgment and agreement between at least two parties, that certain physical (often land) and non-material things (such as human rights) will be accorded to each participant. A treaty is usually a settlement to end hostilities. Indigenous peoples have been denied this, first by the British invaders and now by the Australian Government.
In the case of Australian Indigenous peoples, the crucial factor is the explicit legal recognition of a claim to land. Of all the groups of people in the world, Australian Indigenous peoples must have moral and legal rights to their lands. A treaty could help achieve this. It was a fiction that Indigenous Australians, after 50,000 years (by non-Indigenous reckoning, and since time began by Aboriginal reckoning) of living sustainably and with a rich culture, were counted as no people. This would not have occurred had there been a treaty. That Indigenous Australians should at the stroke of a British invader’s pen have been made legally invisible was, even by imperialistic standards of the day, wrong. That such an injustice continues today is unacceptable.
I don’t know exactly what Indigenous peoples would want in a treaty (if they want one at all). At the very least I would want it to acknowledge and respect Indigenous Australians’ first peoples’ status, their original occupation of the land, and their right to their ‘country’ in some form. One way of partially understanding the very poor social and physical status of many Aboriginal communities is that these are effects of their continued dispossession. In my opinion, the Mabo[1] ruling and subsequent land rights legislation have been grossly undermined. A treaty would be much harder to ignore or water down. I am almost speechless with anger when the Court rules against a people’s land claim because they cannot prove continued association with the land. In virtually all cases they could not prove continuous association because they were forcibly removed. They were removed by an earlier incarnation of the very government that now requires them to prove their continuous association. It is an iniquitous catch-22 situation.
I return, as a final comment, to the importance of recognition and respect. A treaty, in legally acknowledging Indigenous peoples’ status, would set the relationship between Indigenous and non-Indigenous peoples on a different footing. The fact that Aboriginal peoples would have such a legal status would require respect from non-Indigenous Australians. Although anti-discrimination and equal opportunity legislation make it illegal to discriminate against Aboriginal persons and communities, this does nothing to promote respect. A treaty would serve a positive function by promoting respect for Aboriginal society, culture and relationship to land. It would explicitly treat Aboriginal peoples with respect due to their status as a people, rather than the lack of respect that has been shown them due to their lack of status as a people.
Dr. Eileen Baldry is a senior lecturer at the School of Social Work, University of New South Wales.
[1] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 107 ALR 1.