Treaty: yeah, nah, maybe …

It was surprising (at least to me) that there wasn’t more discussion at the NT Governance Summit surrounding the question of a possible treaty between Aboriginal Territorians and the Northern Territory Government. It seemed as if most of the current and former politicians and politically engaged Territorians in attendance regarded the subject as one from cloud cuckoo land, not a fit topic for serious political debate by mature adults.

It’s certainly true that until the last year or so the question of a treaty was one mostly discussed by lefties and dreamers. Prime Minister Bob Hawke raised it as a serious question in 1990 but dropped it like a hot potato when a couple of influential State Premiers objected strongly. Not long after the High Court’s Mabo decision was handed down and treaty talk just dropped off the public radar. The issue hasn’t surfaced again seriously until very recently.

Rev Dr Wankal (Djiṉiyiṉi) Gondarra OAM addresses a meeting of Yolngu Nations Assembly

Indeed as recently as 2015 in a speech strongly advocating a treaty, Natalie Cromb observed:

Whilst I advocate for treaty, I am not flippant in thinking that getting a treaty is going to be easy, because it is the least palatable option for governments as it holds them to a set of obligations that they ordinarily would not live up to.

Yet the current state of play is that the governments of both Victoria and South Australia are now negotiating seriously with their Indigenous citizens with a view to concluding a treaty, and new Northern Territory Labor Chief Minister Michael Gunner has announced that he likewise will be negotiating towards a treaty (or at least “listening”).

This article by Harry Hobbs puts the new state-based treaty movement in context.

It appears that the expressed concerns of many Indigenous people, that the proposed Recognition Referendum is at best a minimalist response to demands for proper recognition of Indigenous people and their rights, have led some more enlightened state governments to revisit the idea of a treaty. Prominent Indigenous legal academic Megan Davis recently observed:

The reinvigorated treaty movement underscores the contested nature of recognition and the rejection of minimalist recognition. In the most obvious example, the state of Victoria has become the first Crown entity since 1788 willing to enter into a treaty process with Aboriginal people. According to Emeritus Professor Cheryl Saunders, a world-renowned expert in constitutional reform and design, “the idea of a state-based treaty bubbling up from the grassroots” is a good one, in part because it “probably puts a bit of a break on the idea that national constitutional recognition can be purely symbolic”.

For Northern Territory Chief Minister Gunner the imperative to negotiate seriously towards a treaty (not just “listen”) is much more pressing than for the governments of Victoria or South Australia. Not only did Independent MLA Mark Yingiya Guyula campaign strongly on the treaty issue in defeating Labor’s Deputy Leader Lynn Walker for the Legislative Assembly seat of Nhulunbuy, as Gunner acknowledged in his treaty “listening” announcement. More importantly, the previous Henderson Labor government was voted out of office in 2012 almost wholly as a result of Aboriginal anger at what was widely seen as a betrayal of Indigenous rights and interests perpetrated by:

  1. imposing a “super shires” local government amalgamation scheme which stripped Aboriginal communities of their rights to govern themselves; and
  2. adopting the role of willing tool of the federal government in imposing the Howard Intervention/Emergency Response on NT Aboriginal communities, a draconian series of measures which almost completely removed the capacity of Aboriginal Territorians to manage their own affairs and communities for a period of five years.

That anger hasn’t disappeared since 2012, it’s just that Aboriginal Territorians discovered like the rest of us that the Giles CLP government was even worse. Moreover, a succession of Aboriginal MLAs of both parties[1]Malandirri McCarthy, Marion Scrymgour, Alison Anderson, Larisa Lee and Francis Xavier Kurrupu have repeatedly demonstrated a willingness to cross the floor of Parliament or even leave their respective parties and sit on the crossbenches where they believe their party has failed to adequately protect Aboriginal rights and interests.  That was the principal reason why the Giles government went from a comfortable parliamentary majority of 16 to a minority government of just 12 MLAs in the space of just three years.

If Michael Gunner is smart (and I think he is) he already realises that he will need to do much more than merely “listen” to Aboriginal aspirations for a treaty. As Natalie Cromb argues:

A fair go cannot be achieved without a Treaty.

A Treaty would be the basis upon which the sovereign Indigenous people of Australia and the Government could negotiate the terms of rights to land, minerals and resources and the self-governing of communities. It would be a binding agreement that would have sanctions to deter breaches of the terms of the treaty.

The events of the last decade have demonstrated to Aboriginal Territorians that they cannot rely on any political party or any level of government necessarily to protect their rights and interests. Only legally enforceable rights can achieve that. As Yothu Yindi memorably put it: “But promises can disappear, just like writing in the sand”.  The song became something of an irritating earworm when it was a smash hit in 1990 and played on high rotation.  But unlike most pop songs its lyrics are profound and worth reading and listening to afresh.


1 Malandirri McCarthy, Marion Scrymgour, Alison Anderson, Larisa Lee and Francis Xavier Kurrupu
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