Constitutional Recognition, Treaty and Sovereignty

Constitutional Recognition, Treaty and Sovereignty

Treaty Where

Well I heard it on the radio

And I saw it on the television

Back in 1988, all those talking politicians

Words are easy, words are cheap

Much cheaper than our priceless land

But promises can disappear

Just like writing in the sand

Treaty yeah treaty now treaty yeah treaty now

Treaty, by Yothu Yindi

Treaties and other forms of agreements are accepted around the world as the means of reaching a settlement between Indigenous peoples and those who have colonized their lands.

Australia is the exception. We have never entered into negotiations with them about the taking of their lands or their place in this nation.

Rather than building our country on the idea of a partnership with Aboriginal people, our laws have sought to exclude and discriminate against them.

While there has been moves towards constitutional recognition and settlement agreements at a State level (which can be argued is a  recognition  of sovereignty and treaty). Australia currently has a constitution that ignores the existence of Aboriginal people and that laws can be passed that discriminate against people for the same reason.

The question now is how we can end this pattern of exclusion and discrimination. Constitutional change is part of the answer but so is a treaty. These are separate debates but inextricably linked in the Australian consciousness.

While Australia has never entered into negotiations with Indigenous people about the invading their lands or their place in the new nation; the idea of a treaty in Australia goes back many years. In 1832 the Governor of Van Diemen’s Land remarked that it was “a fatal error…that a treaty was not entered into” with the Tasmanian Aboriginal people. In more recent times, Prime Minister Bob Hawke promised to deliver a treaty by 1990; instead we got reconciliation (see link below).

How is treaty different from Constitutional recognition?

There is currently a major push towards constitutional recognition in Australia and there is a diversity of views on this in the Indigenous community.  Treaties and constitutions serve two different purposes; a treaty is a contract between two sovereign parties, while a Constitution is a set of governing laws. These initiatives are not mutually exclusive, and can even complement each other.

Some people are concerned that Constitutional recognition will negate Indigenous sovereignty, making future attempts at a treaty impossible. However, legal experts state that none of the current proposals to change the Constitution do anything to undermine claims to Indigenous sovereignty

Why is treaty important?

A treaty could provide, among other things:

  • a symbolic recognition of Indigenous sovereignty and prior occupation of this land
  • a redefinition and restructuring of the relationship between Indigenous people and wider Australia
  • better protection of Indigenous rights
  • a basis for regional self-government
  • guidelines for local or regional treaties
  • structures and systems for local and regional decision-making processes

What is sovereignty and what does it have to do with treaty?

Many Indigenous people base their calls for treaty on claims to sovereignty. The word sovereignty is usually used to describe the independence of nation states. It refers to a nation’s ultimate authority to govern its own affairs without interference from others.

Many Indigenous people in Australia claim sovereignty on the grounds that Indigenous people have never surrendered to the government. Therefore, they claim that their sovereignty has never been extinguished.

Sovereignty is a means for Indigenous people to seek greater control over their lives and limiting government interference. Indigenous sovereignty in Australia includes concepts such as self-government, autonomy and the recognition of cultural distinctiveness, though not the creation of a new country.

The issue of sovereignty continues to underlie calls for, and opposition to, treaty.

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Stephen Hall
Stephen Hall
Lives in Perth, Western Australia.

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