Aboriginal Treaties & Self-Determination

This assignment delves into the significance of treaties for Aboriginal people in Australia. It examines key elements like sovereignty, customary law, self-determination, and land rights that should be included in such treaties. The document highlights how treaties aim to empower Aboriginal communities and foster healing while emphasizing the widespread support for this approach within these communities.

Question
Research and comment on the desirability and feasibility of:
1. Addition of a preamble recognising the first peoples;
Introduction: The 1967 referendum was much more than merely counting the indigenous people
in the census. Similarly, the constitutional changes that have been discussed at the Uluru were
also much more than merely discussing the formal recognition of the aboriginal and the Torres
Strait Islander people in the form of first Australians. The aboriginals claimed that this issue is
related with their future, the future of their children, their history and all the things that they had
to face. There were more than 250 delegates from the aboriginal communities who were trying to
discuss what recognition means for them and how they can get the support of the people of
Australia by adopting a referendum process.
Addition of a preamble recognising the first peoples: Broadly speaking, constitutional
recognition can be described as a push to formally recognize the aboriginal people and the Torres
Strait Islanders as the originals of the inhabitants of Australia. This can be done either in the
form of preamble to the Constitution of Australia or by treaty or by some other instrument. Such
efforts will be an attempt made in the direction of addressing the fact that as against most other
comparable countries, Australia does not have a treaty nor a foundational agreement with the
first people of the country that provides the way in which the relationship between the two
parties needs to be conducted.1
1 Costar, Brian, Odious and Outmoded? Race and Section 25 of the Constitution’ in John
Chesterman and David Philips (eds), Selective Democracy: Race, Gender and the Australian
Vote (Melbourne Publishing Group, 2003) 89

Amendment of s25, s51(xxvi) and possible insertion of new sections: The major points of
discussion at the Uluru include the fact if there should be some form of recognition provided to
the aboriginal and the Torres Strait Islanders as the first people of Australia; in a preamble to the
Constitution or otherwise.2 The other issues included the removal of the modification of section
51xxxvi and section 25 of the Constitution. The removal of the power granted to the States to
exclude the particular race from taking part in the voting and the introduction of constitutional
protection against any discrimination on the basis of race. These are the key elements of the
model that was recommended in 2011 by the expert panel on constitutional recognition. In
principle, the panel enjoyed bipartisan political support.3
Another proposal that was also a part of these discussions was put forward by Noel Pearson, the
Cape York leader, who suggested an official mechanism that would provide a voice to the
aboriginal and Torres Strait Islander people in the parliament and concerning the legislation that
have an impact on the indigenous people.4 The aboriginal leaders believed that it is very
significant that they have a say in the policies that have an impact on their people and their
rights. Hence, having an indigenous voice in the parliament will provide a chance to an elected
group of the aboriginal people to advise the parliament regarding the issues affecting the
indigenous people. Such group will have significant authority and staying power if such a thing
is mentioned in the Constitution. Similarly, it will also help in achieving better results for the
indigenous people and at the same time help in maintaining a fairer relationship between the
government and the aboriginal people.
2 Dodson, Patrick, 1999 Vincent Lingiari Memorial Lecture, ‘Until the Chains Are Broken’
(2000) 5(2) Australian Indigenous Law Reporter 73
3 Council of Australian Governments, National Partnership Agreement on Remote Service
Delivery (2009)
4 Davis, Megan, ‘Responses to Henry Reynolds’ (2006) 6 Macquarie Law Journal 13

The suggestion appears to be quite popular. After the collapse of Aboriginal and Torres Strait
Island commission, a formal body is not present that can provide a political voice to the
indigenous people. It is also worth mentioning that till now there is no formal agreement
regarding the way, the recognition should look like, apart from the fact that it needs to be
substandard and practical and not merely an exercise in symbolism.5
Therefore, such recognition can be in the form of a treaty, but the voting that takes place to
recognize the aboriginal people in the Constitution will not preclude the chances of a treaty or
more likely, a number of treaties the difference state governments, from being taking place in
future.6 At the same time, the experts on constitutional law have also warned that in case some of
the constitutional changes that are being proposed as a part of the recognition do not take place,
it is possible that the treaties that have been concluded with the States governments may be
considered invalid.
The race power that is present in section 51xxvi was added in the Commonwealth Constitution
after the 1967 referendum. This section gives the power to the Commonwealth to legislate for the
people of any race, for whom it may be considered necessary to enact special legislation. This
power allows the construction of laws in such a way as aboriginal heritage laws and native title,
but at the same time, this power also allowed the federal government to enact discriminatory
legislations as can be seen in the 50 years history of Australia. A significant example of the use
of this power can be seen in the construction of controversial Hindmarsh Island Bridge. In
5 Dodson, Patrick, The Wentworth Lecture 2000: Beyond the Mourning Gate—Dealing with
Unfinished Business (Australian Institute of Aboriginal and Torres Strait Islander Studies, 12
May 2000)
6 Davis, Megan, ‘A Narrative of Exclusion: Indigenous Rights in Australia’ (2007) 14(3) Human
Rights Defender 16

somewhat mocking tones, this became to be called by the media in Australia as the "secret
woman's business" case. The female Ngarrindjeri elders have raised objections to the
construction of this bridge from Goolwa, on the mainland, South Australia to this island. The
reason was that they claimed that the construction of this bridge will disturb the secret woman's
sight even if they refused to give the details of this site.7 However, the Howard government
introduced the Hindmarsh Island Bridge Act in 1997. This legislation overruled all the legal
disputes in this regard and as a result, the construction could start. Under these circumstances, it
was noted by experts of constitutional law that unless the confirmed capacity enjoyed by the
federal government to interfere is curbed; there remains the power to potentially undermine the
treaty options.8 As a result of the diversity of aboriginal people and their experiences, it is likely
that the treaties may be negotiated at the state level, as it has already started in Victoria or even a
more local level.
It has been claimed by the constitutional experts that unless there is modification in the race
power, the federal government will continue to enjoy a license to interfere and there is long
history of such incidents.9 At the same time, the race power also serves as a reminder regarding
the need for being waged in full whenever the relevant constitutional changes are being
considered. The negative impact of such changes was foreseen before the referendum of 1967,
however, there was a sense of goodwill that swept along the campaign and the details were left
hanging. During the discussions that took place at Uluru, significant concern was expressed by
7 Anaya, S James, Indigenous Peoples in International Law (Oxford University Press, 2004)
8 Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘The Perilous State of
Indigenous Languages in Australia’ in Social Justice Report 2009 (Australian Human Rights
Commission, 2009) 57
9 Dillon, Michael C and Neil D Westbury, Beyond Humbug: Transforming Government
Engagement with Indigenous Australia (Seaview Press, 2007)

the people that they should not repeat that same mistake and leave the aboriginal people
vulnerable to unintentional negative consequences.10 Hence there is one way to prevent such a
situation and that is through the proposed constitutional protection against any type of racial
discrimination.11
Incorporation of Native Title in the CC: It needs to be mentioned that Australia remains the
only Western liberal democracy where this guarantee is not already been given, neither in the
form of a bill of rights nor by the Constitution. Such a situation would mean that the legislation
is like the Northern Territory emergency intervention, which needed the suspension of Racial
Discrimination Act, could not be implemented. This remains the major priority for a large
number of delegates at Uluru. But unfortunately this is also the proposal that is most likely to
remain the target of negative campaign that may take place in the wider Australian community.12
It is not very likely that the persons who have campaigned in favor of weakening section 18C,
Racial Discrimination Act are going to support a constitutional protection against such
discrimination. However, when the issue is considered in the light of international context, the
proposal appears to be "very modest, even conservative". It is going to be at a task to convince
the people of Australia however such a proposal really amounts to nation-building.
There is a core principle that has already been decided according to which the aboriginal and the
people from Torres Strait Island are not going to do anything that is going to abrogate our
10 Davis, Megan and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a
More Inclusive Constitution or Entrenching Marginalisation?’ (2010) 33(2) University of New
South Wales Law Journal 239
11 Attwood, Bain and Andrew Markus, The 1967 Referendum or When Aborigines Didn’t Get the
Vote (Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997)
12 Dow, Coral, ‘Aboriginal Tent Embassy: Icon or Eyesore?’ (2000) Social Policy Group 1

sovereignty. Such a concept is difficult to consider, particularly from the legal perspective of
Australia as there is an assumption under it, according to which sovereignty has been taken from
the aboriginal and the Torres Strait Islanders by the settlement. The High Court had already
confirmed this view in its decision given in Mabo case in 1992 however; the disagreement has
not been settled by it.13 The issue exists, if sovereignty was never ceded, the validity of the High
Court, and as a result, the validity of the decisions given by it regarding sovereignty, can be
called in question. However, it has been stated in this regard that the issue of indigenous
sovereignty is hugely different from the subject of state sovereignty.14
The position, which states that sovereignty was never ceded, is capable of being maintained by
constitutional recognition or through treaty process or by both the parties asserting a different
stand regarding the issue of sovereignty and then moving forward to the other issues. In this way,
the concern related with the loss of sovereignty remains the most significant argument
supporting the opposition of constitutional recognition. There is another significant source of
opposition among the aboriginal community that is the concern regarding the process and the
anger aimed at the Recognized Movement.
Establishment and possible enshrinement in the CC of a First Peoples’ Voice advisory body
to Parliament: It is presumed that the new legislated entity is going to replace the National
Congress of Australia's First Peoples. The Congress claims that it is owned and controlled by its
membership and it remains independent from the government. Together, it claims to be the
leaders and advocates for recognizing the status and the rights of the aboriginal people as the
First Nations people in Australia. It needs to be recommended by the Referendum Council that
the government should start immediate consultations regarding the way how a video indigenous
13 Behrendt, Larissa, Achieving Social Justice: Indigenous Rights and Australia’s Future
(Federation Press, 2003)
14 Dodson, Michael, ‘Sovereignty’ (2002) 4 Balayi: Culture, Law and Colonisation 13

advisory Council can be set up as the First Nations voice.15 It is also required to recommend that
the parliament should make law regarding the creation of such advisory Council. Therefore any
referendum should be recommended to be delayed until the advisory Council has been
established, and it starts working well. Therefore, in such a case the parliament may and only
then consider making law for the referendum, which proposes relevant changes made to the
Commonwealth Constitution. One such desirable change can be made to section 51 (26) of the
Commonwealth Constitution. This section can be amended with a view to provide that the
federal parliament will have the power to legislate regarding the cultures, heritage and languages
of the aboriginal and Torres Strait Islanders and also regarding the continuous relationship that
there have with the traditional waters and lands.
A treaty or “Makarrata” not involving amendment of the text of the CC: The indigenous
leaders wanted the creation of two new legal entities. First of all, they were in favor of First
Nations voice that needs to be enshrined in the Commonwealth Constitution. The second was
Makarrata Commission to be set up by legislation. This Commission will have the responsibility
to supervise the agreement making process between Commonwealth and various state
governments and the First Nations. It will also be involved in telling the truth regarding history.16
The envisaged destination remains a national Makarrata or treaty. Therefore the immediate
constitutional issues related to the creation of First Nations voice. There is no point in having a
referendum regarding the question that could not win the approval of the indigenous people of
Australia. Similarly there is no point in moving ahead with a referendum if it cannot win the
approval of the voting people. According to the consultations that have been conducted with the
indigenous communities under the financial support and the auspices of referendum Council, a
15 Broome, Richard, Aboriginal Victorians: A History Since 1800 (Allen & Unwin, 2005)
16 Behrendt, Larissa, Chris Cuneen and Terri Libesman, Indigenous Legal Relations in Australia
(Oxford University Press, 2009)

constant message has appeared that the aboriginals of Australia are in favor of substantive
constitutional change and not only symbolic or minimalistic changes.17 Therefore the question
arises, how much we should try to put in the Constitution now and how much can be placed
outside the Constitution or, could be delayed from being included in the Constitution on another
day. Certainly, one thing is worse than having a minimal symbolic constitutional change along
with substantial changes outside the Constitution. There is no mention of the Aboriginals and the
Torres Strait Islanders in the Constitution, either because we compromised too much all we
judged it too hard or due to reason that we were trying to achieve too much, very soon.
Conclusion: As mentioned above, Australia is the only Commonwealth country that does not
have a treaty with its First Peoples. A treaty will be a legally binding agreement that has taken
place between the government and the aboriginal people. Such a treaty will contain clauses
related with sovereignty, customary law, self-determination and land rights. Under ideal
conditions, a treaty will also make sure that any laws that the government tries to enact
supposedly for the aboriginal people will be implemented only after consultations with these
people. A treaty is widely considered to be a way to foster, self-determination, empowerment
and healing and it has a widespread support among the aboriginal and the Torres Strait Island
people.
17 Blackshield, Tony and George Williams, Australian Constitutional Law and Theory:
Commentary and Materials (Federation Press, 4th ed, 2006)

Bibliography
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘The Perilous State of
Indigenous Languages in Australia’ in Social Justice Report 2009 (Australian Human Rights
Commission, 2009) 57
Anaya, S James, Indigenous Peoples in International Law (Oxford University Press, 2004)
Attwood, Bain and Andrew Markus, The 1967 Referendum or When Aborigines Didn’t Get the
Vote (Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997)
Behrendt, Larissa, Achieving Social Justice: Indigenous Rights and Australia’s Future
(Federation Press, 2003)
Behrendt, Larissa, Chris Cuneen and Terri Libesman, Indigenous Legal Relations in Australia
(Oxford University Press, 2009)
Blackshield, Tony and George Williams, Australian Constitutional Law and Theory:
Commentary and Materials (Federation Press, 4th ed, 2006)
Broome, Richard, Aboriginal Victorians: A History Since 1800 (Allen & Unwin, 2005)
Burger, Julian, ‘The United Nations Draft Declaration on the Rights of Indigenous Peoples’
(1996–97) 9 St Thomas Law Review 209
Commonwealth, Closing the Gap: Prime Minister’s Report (Department of Families, Housing
Community Services and Indigenous Affairs, 2
Costar, Brian, Odious and Outmoded? Race and Section 25 of the Constitution’ in John
Chesterman and David Philips (eds), Selective Democracy: Race, Gender and the Australian
Vote (Melbourne Publishing Group, 2003) 89
Council of Australian Governments, National Partnership Agreement on Remote Service
Delivery (2009)

Davis, Megan and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a More
Inclusive Constitution or Entrenching Marginalisation?’ (2010) 33(2) University of New South
Wales Law Journal 239
Davis, Megan, ‘A Narrative of Exclusion: Indigenous Rights in Australia’ (2007) 14(3) Human
Rights Defender 16
Davis, Megan, ‘Responses to Henry Reynolds’ (2006) 6 Macquarie Law Journal 13
Dillon, Michael C and Neil D Westbury, Beyond Humbug: Transforming Government
Engagement with Indigenous Australia (Seaview Press, 2007)
Dodson, Michael, ‘Sovereignty’ (2002) 4 Balayi: Culture, Law and Colonisation 13
Dodson, Patrick, 1999 Vincent Lingiari Memorial Lecture, ‘Until the Chains Are Broken’ (2000)
5(2) Australian Indigenous Law Reporter 73
Dodson, Patrick, The Wentworth Lecture 2000: Beyond the Mourning Gate—Dealing with
Unfinished Business (Australian Institute of Aboriginal and Torres Strait Islander Studies, 12
May 2000)
Dow, Coral, ‘Aboriginal Tent Embassy: Icon or Eyesore?’ (2000) Social Policy Group 1