IDENTIFYING A LEGAL FRAMEWORK FOR A TREATY BETWEEN AUSTRALIA’S FIRST PEOPLES AND OTHERS Professor Asmi Wood* & Christie M. Gardiner** I INTRODUCTION For several decades, various political commitments have been made to develop a legal apparatus in Australia which recognises the agency of Indigenous people1 and which facilitates their autonomy and self-determination. These commitments have rarely yielded outcomes that sustainably advance the short to long term interests of Indigenous peoples, and often fail to address the inherent relationship injustice that exists between Indigenous peoples and the commonwealth. For instance, in June 1988, then Australian Prime Minister Mr R.J. Hawke promised a historic treaty with the Aboriginal people at the Barunga festival in the Northern Territory.2 The resulting Barunga Statement, called for a ‘Treaty recognising our [Indigenous] * Asmi Wood is the Director of the National Centre for Indigenous Studies (NCIS) at the Australian National University and teaches at the Australian National University College of Law. ** Christie Gardiner is a Lecturer at the Australian National University College of Law. 1 ‘Aboriginal and Torres Strait Islander’ peoples is the commonly used term in Australian to describe its first/indigenous peoples. These are clearly colonial terms (ie, terminology variously used by the settler state collectively to refer to a range of tribes and peoples often who each identify separately) and the use of these terms is not uncontentious. This paper generally (but not exclusively) employs the phrase ‘indigenous people’ for this purpose, as this is the term preferred in international instruments, including by consensus in the UN DRIP (see ‘The Declaration on the Rights of Indigenous People 2 October 2007 UN General Assembly Sixty-first session, A/RES/61/295). Damien Murphy ‘The Aboriginal rights treaty that never came: cabinet papers 1988-1989’, Sydney Morning Herald 1 January 2015, <http://www.smh.com.au/nsw/the-aboriginal-rights-treaty-that- never-came-cabinet-papers-19881989-20141218-129yhm.html>. For the purposes of this paper, and in concert with international law, a formal statement by a current head of government is taken as being indicative of the position of that nation: Article 7(2)(a) Vienna Convention on the Law of Treaties [1969] [‘VCLT’]) United Nations, Treaty Series, vol. 1155, p. 331. Consequently, the fact that a Prime Minister has proposed a treaty, an idea that has survived for 30 years or so must mean that Indigenous people can reasonably expect that legal or political obstacles (if any) to a treaty can be overcome. 1 prior ownership, continued occupation and sovereignty and affirming our human rights and freedom.’ The Statement hangs prominently in the Parliament House of Australia in Canberra. Despite this commitment a Treaty was not forthcoming, yet it remains an aspiration of indigenous peoples, both for its’ content and for the symbolic significance of this necessary gesture. In advancing the concept of a Treaty between Indigenous peoples and the Australian State, there are fundamental issues which need to be resolved, at law, in order to bind the parties to an agreement which ensures the progress of further productive relations between all peoples. Unfortunately, the political environment surrounding the current debate on constitutional recognition of Indigenous people has been ‘toxic’,3 a description that is likely to apply equally to treaty negotiations given domestic opposition to this.4 The issue of constitutional recognition, its form and its implications have been examined by Parliament and others.5 The broad concept of a treaty is also popular among Indigenous peoples, as popularised in a song called ‘Treaty’ in 1988. 3 Breanna Tucker, 'Toxic, childish, poor and pathetic’, The Guardian, 20 March 2013, <http://www.theguardian.com.au/story/1377269/toxic-childish-poor-and-pathetic/>; for a discussion of the legal environment see for example Asmi Wood, ‘The Confluence of Two Rivers: Constitutional Recognition of Australia’s First Peoples’ in Kelli Te Maiharoa, Heather Devere & John Synott Eds “Peacebuilding and the Rights of Indigenous Peoples: Experiences and Strategies for the 21st Century”, (Springer Press, 2017), 89-104; Asmi Wood, ‘Constitutional Recognition and Racial equality’ in Eds (Federation Press) In ‘Constitutional Recognition’ Jennifer Nielsen, Simon Young and Jeremy Patrick Eds (Federation Press, November 2016, pp 103-128. 4 See discussion accompanying n 23 below. 5 The Report of the Expert Panel, ‘Recognising Aboriginal and Torres Strait Islander People in the Constitution’, January 2012; Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (JSCATSI, ‘the Committee’) of July 2014; Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (JSCATSI, ‘the Committee’) of June 2015; Marcia Langton and Megan Davis Eds in “It’s Our Country”. Indigenous arguments for meaningful constitutional recognition and reform (Melbourne University Press, 2016); ‘Constitutional Recognition’ Jennifer Nielsen, Simon Young and Jeremy Patrick Eds (Federation Press, November 2016. 2 It is expected that a proposed treaty would be between the descendants of the British Colonial Occupiers of the Australian Continent [and others who have come to Australia under their laws] (‘Settlers’) and the Continent’s First Peoples/ Nations/ Aboriginal and Torres Strait Islander Peoples/ Indigenous peoples (‘Indigenous peoples’) as the treaty parties. The ‘ethnic’ or racial6 compositions of the key stakeholders are complex, including in terms of law, language, culture and habit, but for convenience, this paper refers to the parties broadly as ‘the two groups’ or the ‘the two main parties’ to negotiations as appropriate.7 The treaty promised by Mr Hawke, which in principle also enjoys the support of other leaders of government and left-leaning political parties, have yet to be given form or substantive content. That is, what is currently being discussed in public is largely the concept of the two main parties entering into a treaty, through a yet unspecified process, and in some yet unspecified manner, form and content. Thus, the development of a framework for agreement making/ treaty negotiations as an essential prerequisite, can, and should, proceed in spite of the politics of the debate. The decision to enter into a treaty is clearly political,8 but one that in its execution touches on significant legal issues. The current discussions on the need or otherwise for a treaty, in what could be described as an almost clean slate in terms of legal policy, can therefore, become confused. This paper explores some of the procedural and substantive issues that will attend 6 Race is a socially constructed notion. Prichard notes that ‘the dominant view among biological scientists, anthropologists and social theorists in that the concept of ‘race is socially constructed imprecise, arbitrary and incapable of definition or scientific demonstration’: Sarah Pritchard, ‘The ‘Race’ Power in Section 51(xxvi) of the Constitution’, 15 Australian Indigenous Law Review 2 (2011), 44, 50. However, the term is used here as it is part of the Australian legal diction. The legal test for indigeneity in Australia also has a racial component: Shaw & Anor v Wolf & Ors (1999) 163 ALR 205. 7 It is conceded that this shorthand can be considered problematic as it is quite reductionist of both Indigenous peoples and the Settler community, both broad groups of which are composed of multiple ethnicities, cultures and linguistic backgrounds. 8 Mabo v State of Queensland (No 2) (1992) 175 CLR 1. 3 the conclusion of a treaty. While important legal issues are raised they are not examined in a strict technical legal manner on the basis that the development of a coherent conceptual legal framework is the first barrier these two parties must overcome. The idea of a treaty has caused angst among some in the Settler community. Others believe that the ‘Aboriginal problem’ has been solved. Such preconceptions can result in emotive claims and counterclaims by people on all sides of the political divide. Such opinions, often in a vacuum, are difficult to substantiate or evaluate in a useful or constructive way. Thus, the discussions and creation of a legal framework for the free and transparent development of a substantive treaty is a useful, but relatively uncontentious step, in this process. While the list of issues discussed here is not exhaustive, this paper seeks to move beyond the conceptual question of the suitability of a treaty in order to highlight some of the complexities and identify some necessary steps that will need to be undertaken in order to effectively negotiate, draft and formalise a treaty. These processes and steps should be undertaken with due diligence and care if a resulting treaty is to have a chance of receiving the necessary support and acceptance in Australia. The outcome of this process is also of significant interest to the international community. A relevant but salient issue is that Indigenous people do not yet enjoy recognition or legal equality under the Australian Constitution.9 Mutual recognition between 9 Asmi Wood ‘Constitutional Recognition: A Case for Less is More’ in Marcia Langton and Megan Davis Eds in “It’s Our Country”. Indigenous arguments for meaningful constitutional recognition and reform (Melbourne University Press, 2016). pp 104-113; Constitutional recognition is in the view