There has been increasing debate around the proposed constitutional recognition of and treaties with indigenous peoples in Australia since the final report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution was released in January 2012. Recently, these issues have made headlines as a result of the rejection of the proposed constitutional recognition by a convention of indigenous delegates at Uluru.

The 2017 National Constitutional Convention at Uluru promulgated the ‘Uluru Statement from the Heart’ which, while brief, makes vague references to indigenous sovereignty and self-determination, and supports extensive but undefined constitutional reform to empower indigenous Australians and allow them to ‘take a rightful place in [their] own country’. Calling these ‘vague’ and ‘undefined’ is not a criticism: they are adjectives to describe the amount of detail that can reasonably be expected in a single-page document. Curiously, unlike many statements of a similar nature, the word ‘treaty’ is not used: instead the statement calls for ‘a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history’.

This article looks at constitutional recognition of indigenous peoples in Australia, and the demands for a treaty. It addresses some of the issues in the Uluru Statement, but is not a response to that statement. Instead, it looks at the legal effects of the constitutional recognition proposals and considers the validity of criticisms of the pro-recognition campaign. It also looks at the legal and practical issues involved in negotiating a treaty or treaties with indigenous peoples in Australia.

I should disclose at this point that while I am of partial indigenous ancestry (remotely), I do not consider myself to be a part of any Aboriginal or Torres Strait Islander culture. I also appreciate the immense significance of these issues to indigenous Australians and others. With this article I seek to educate, not belittle, but I do hope to counter misinformation that seems to be perpetuated by well-meaning activists. If I’ve made a mistake, or left something out, please get in touch with me over Twitter or email; if I disagree with you and you still think I’m a tosser, by all means write your own article/blog post and call me out on it.

Constitutional recognition in general

One criticism levelled at constitutional recognition is that it’s not what indigenous peoples want. That’s partially fair, but what it fails to acknowledge is that you don’t need permission to recognise something or someone. If a majority of Australians want to formally recognise the earliest known inhabitants of this country in Australia’s fundamental law, they don’t need the consent of those peoples to do so. While that view may seem objectionable at first glance, it’s the reality.

Another reality is that we already have de facto recognition in Australia. I am yet to find an adult or child who doesn’t know that Aboriginal and Torres Strait Islander Peoples are the original inhabitants of the country. At many public events and ceremonies a Welcome to or Acknowledgement of Country opens the proceedings. An elder or person of the people of that land formally welcomes attendees onto the land or a person acknowledges and pays respect to the traditional owners of the land on which the proceedings are taking place. We all understand one thing: they were here first.

The constitutional recognition proposal

A myth that I have heard repeated many times is that constitutional recognition somehow alters the relationship between indigenous Australians and the Government of Australia. This has always struck me as odd, as though people who believe this have not actually read the proposal themselves, and have not been listening to constitutional law experts but rather accepting the misinformation passed around by certain activist groups in this area. I will state it unambiguously: the proposed referendum to recognise indigenous peoples in the Australian Constitution does not affect the legal status of any peoples.

So what does it do, apart from the obvious? I won’t extract the changes verbatim (they can be found in the report of the Expert Panel), but a summary may be useful. The proposal is to make five changes to the Constitution, which I will explain momentarily. It is proposed that: (1) section 25 be repealed, (2) section 51(xxvi) be repealed, (3) a section 51A be inserted, (4) a section 116A be inserted, and (5) a section 127A be inserted.

Section 25 of the Constitution is an unusual provision in that it acknowledges states may discriminate on the basis of race, but in practice would disadvantage a state if it did discriminate. It provides that if all persons of a particular race are disqualified by law from voting in elections for a state’s most numerous House of Parliament, persons of that race will not be counted when determining the number of members that state has in the House of Representatives. The practical effect is that if a state prevented everyone of a particular race from voting, it would have less members in the House of Representatives, and therefore less representation at the federal level.

While section 25 has this punitive quality, it still contemplates that states would discriminate against certain races (typically Aborigines and Asians, as was common in the 1890s when the Constitution was drafted). It is proposed that this provision be repealed, and effectively be replaced by the insertion of a proposed section 116A. This new section would prohibit the Commonwealth, States and Territories from discriminating ‘on the grounds of race, colour or ethnic or national origin’, a phrase identical or comparable to others found in existing domestic, foreign and international laws relating to racial discrimination. It also includes an exemption stating that it ‘does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group’, permitting affirmative action.

Section 51(xxvi) is the Commonwealth’s ‘race power’, which grants the Commonwealth Parliament plenary power to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. Note that this does not currently require those laws to be positive laws. It permits the Commonwealth to legislate regarding any race, regardless of how that may negatively affect that race. By contrast, with the insertion of section 116A, all levels of Government would be prohibited from making negatively discriminatory laws.

Despite this, it is still proposed that the race power be repealed and essentially be replaced by the insertion of a proposed section 51A. It is this new section (perhaps together with the proposed section 127A) that is the most controversial aspect: it is the ‘recognition’ part of the proposed amendments. It recognises that indigenous Australians first occupied the continent and islands that form Australia; it acknowledges the continuing relationship of those indigenous peoples with their traditional lands and waters; it respects their continuing cultures, languages and heritage; and it acknowledges the ‘need to secure the advancement of Aboriginal and Torres Strait Islander Peoples’.

The proposed section 51A states a somewhat more restricted version of section 51(xxvi): it allows the Commonwealth to make laws ‘with respect to Aboriginal and Torres Strait Islander peoples’ (a power it already has in respect of all races). While this may seem at first glance unusual (as I found it initially), a few years ago I spoke with constitutional law expert George Williams, and he explained that without this, the Commonwealth would have no power to makes laws regarding indigenous Australians. I kicked myself for not picking up on this. When combined with the proposed section 116A, this allows the Commonwealth to make laws solely for the benefit of indigenous Australians.

The proposed section 127A is a logical extension of recognition. It recognises the place of Aboriginal and Torres Strait Islander languages in Australia’s national heritage as the original languages of the continent. It also states that English is the national language of the Commonwealth of Australia. This ‘solves’ an interesting problem in Australia: there is no de jure official language. English is currently the de facto official language, used by Government and commerce in Australia, but nowhere in Australian law is it stated that English is the official language.

Evaluating the proposed amendments

There are two propositions I wish to make: firstly, constitutional recognition is not, by itself, a bad thing; and secondly, the proposed amendments make several positive changes. The mere act of recognising Aboriginal and Torres Strait Islander peoples does not negatively affect those peoples, or any other peoples for that matter. Aside from that, the additional amendments have the effect of introducing a constitutional right against non-discrimination, which, considering Australia is a pariah among modern constitutional democracies in that it has virtually no constitutional protection of rights, is a positive step.

Would constitutional recognition be a meaningless gesture to make every non-indigenous citizen feel good? Quite probably. Would it improve the standing of indigenous peoples in Australia? Probably not. Has the campaign for recognition been an expensive and pointless exercise? Almost definitely. I’m not going to go into the political aspects if I can avoid it, but I do agree that the long, drawn-out process toward a referendum has been tedious, wasteful and unnecessary. It’s really an idea that should sell itself because, prima facie, it’s not bad.

Does it matter that indigenous Australians don’t want it? Maybe, but I don’t think so. As I’ve explained: their consent is not required. Do I think anti-recognition activists are right to campaign against government waste and meaningless gestures? I think they are. But I also think this has to a large extent been a case of playing the man and not the ball. There is a valid concern that constitutional recognition will divert attention away from the ‘real issues’, but between the campaign to recognise and the campaign against recognition, much ado has been made about nothing.

Treaties and sovereignty

As an ‘alternative’ to constitutional recognition, many indigenous and non-indigenous peoples and activists continue to support the idea of a treaty or treaties between the Government of Australia and indigenous groups. The precedent for this is seen in treaties that exist or existed between colonial powers and indigenous groups in other countries, including the Treaty of Waitangi between the Maori and Britain in New Zealand.

At this point it may be helpful to consider what a treaty actually is. A treaty is not merely an agreement between two groups of people. Specifically, a treaty is between two or more entities that have ‘international personality’. These are typically sovereign states. In simple terms: a treaty is a binding agreement between two or more entities recognised under international law as being able to enter into such agreements. This creates certain dilemmas.

Firstly, treaties are an invention of European-created international law. A treaty between Australia and any indigenous peoples requires some overarching form of international law to bridge the gap between the legal systems (which international law does, because there are many different legal systems in existence that interface with each other via international law). As far as I can tell, no one is disputing that this European-created international law would apply to the relationship. As a result, all the rules of international law need to be considered. Secondly, it requires both parties to have and recognise each others’ sovereignty and capacity to enter into binding agreements under international law. Thirdly, it would require determining which indigenous groups are extant, and who their representatives are for the purposes of making treaties.

Acquisition of sovereignty

International law has rules relating to how sovereignty can be acquired in respect of territory. There are currently four legal methods of acquisition of sovereignty under international law, but historically there have been five. These are: accretion, cession, occupation, prescription and conquest. Conquest is no longer a lawful method of acquiring sovereignty, and has not been since at least the formation of the United Nations in 1946.

Occupation is not military occupation, but rather the settlement of uninhabited territory. This was for many years controversially applied to the Australian situation because the lack of state organisation comparable to Europe did not exist: while the land was ‘inhabited’ it was not considered ‘occupied’ by the indigenous peoples. Rightfully this has been thoroughly rejected since the 1990s.

Cession is the transfer of territory from one state to another, usually by treaty. Throughout the 18th and 19th centuries, the European colonial powers routinely entered into treaties with indigenous populations that involved the cession of land to those powers. The effectiveness of such treaties has been disputed, but they were used successfully to acquire sovereignty and establish peaceful relations (usually after many casualties) between colonial powers and native groups.

Conquest was another popular way of acquiring sovereignty. It gradually declined in use and most now agree it is no longer a lawful method of acquisition, since acts of aggression have been illegal for the better part of a century. However, it was certainly available under international law before then.

Advocates of a treaty often insist that sovereignty was never ceded by indigenous peoples in Australia. This is a fair point. Certainly, I think, the indigenous nations had sovereignty over their traditional lands. However, if they could cede sovereignty, they could also have it taken away by conquest. It is my firm view that while indigenous nations could have entered into treaties as Britain began colonising the continent, the British acquired sovereignty over the continent by conquering the indigenous nations. That sovereignty was then handed over to the Commonwealth of Australia when the Australian Constitution came into force in 1901. Indigenous Australians have not had sovereignty since at least 1901.

A treaty with whom?

It must, of course, be remembered that indigenous Australians do not form a single nation. Before British colonisation there would likely have been hundreds of tribes with divergent languages, cultures and legal systems. In order to develop a treaty or treaties, it would be necessary to establish which nations are extant, and to enter negotiations with representatives of each of those. Ascertaining this information is extremely difficult. Attempts at engaging with indigenous Australians on matters of governance have generally be criticised for consulting with the ‘wrong’ Aborigines. I do not envy the position of successive Australian Governments who have had to determine who is actually representative. Apparently those indigenous leaders who are pro-recognition are not representative.

An agreement instead?

The Uluru Statement indicates support for an agreement between the Commonwealth and the indigenous peoples of Australia. It does not call this a treaty, and I view this as a realistic statement. It is perfectly possible for a non-binding agreement or even a legislative arrangement to be instituted. There is no need to throw the words ‘sovereignty’ and ‘treaty’ around to achieve this. Of course, some might say that neither of these words are used in the conventional sense. My rebuttal to this is: ‘why use them at all then?’ Words have specific meanings, and if you don’t want your argument to be misinterpreted, use the most appropriate words you can. Don’t muddy the waters by using words that have very specific meanings to mean something else.

Conclusions

Relations between the Australian Government, acting on behalf of all Australians, and Aboriginal and Torres Strait Islander peoples are in a state of constant strain. This is in large part due to the unrealistic expectations of those with varying agendas. Also contributing to this is the lack of understanding between various groups. Further, because of these competing agendas, a good deal of public money has been wasted and a large amount of misinformation has been spread.

The reality is that constitutional recognition is not a bad idea. It may promoted for the wrong reasons, however. The proposed reforms would not significantly alter the relationship between indigenous Australians and the Commonwealth of Australia, but would eliminate some lingering colonial relics contained in the Constitution. Thus far, more attention has been brought to the campaign for constitutional recognition than is appropriate, due to needless controversy and wasteful spending of public money. On those grounds it is objectionable, but it is probably less objectionable to let the referendum go ahead, and use the result to frame further discussions.

It may be a nice thought, but indigenous sovereignty does not exist. It wasn’t ceded, and it didn’t have to be. It was acquired, over several years, by conquest. A treaty in the conventional sense of the word is not feasible, but some kind of agreement or memorandum of understanding may be achievable.