Australia remains unique among settler societies in not signing treaties with local Indigenous peoples, nor recognising their prior occupation in foundational documents like the Constitution. States such as Canada and New Zealand are currently seeking to ameliorate previous non-recognition via negotiated settlements, treaty processes, and even redrawing their internal boundaries to accommodate Indigenous autonomy. Given that these developments build on historical recognitions of Indigenous status that simply never happened on this continent, it may not be surprising that processes of negotiation remain less developed in Australia. Yet the fact is that such processes are largely absent, not simply underdeveloped. Perhaps more alarmingly, at the beginning of the twentyfirst century there seems little appetite for a national dialogue on the question of creative new ways to accommodate Indigenous political aspirations.

For many Australians, the articulation of a distinct Indigenous identity challenges notions of ‘one Australia’. Cultural representations of Aboriginality are acceptable and may even be presented as ‘Australian’, such as on a Qantas jet, or when we bask in the reflected glory of Indigenous art’s international popularity. However, overtly political claims are more worrying, being viewed not on their own merits but largely in terms of their ability to upset the unity of the state. Arguments for people-to-people negotiations or a treaty relationship are hardly heard because of the degree to which non-Indigenous Australians have psychologically as well as institutionally absorbed Indigenous peoples into the state. It is then conceptually incoherent to ‘treat with oneself’.

An alternative position was argued in novel fashion by Patrick Dodson in his ‘Wentworth Lecture’ of 2000.1 In it he identified twin Indigenous aspirations of exercising a distinct identity and retaining the protection of Australian citizenship. Despite fears to the contrary, Dodson felt these aspirations could be realised in a way that strengthens rather than undermines the unity of the state. This, he believes, can take place through a formal treaty process that sets out the proper protocols for a just relationship between peoples.

This article seeks to analyse these positions in terms of their conception of Indigenous status. At a superficial level, we see a battle between those who advocate ‘assimilation’ and those who demand ‘separatism’. A key weapon in this battle is the deployment of particular views of history. However, both these extremes seem unrealistic given the strength of Indigenous identity on the one hand, and the continued dominance of ‘European’ institutions on the other. With this in mind, Patrick Dodson’s vision of distinct but coexisting peoples seems more in tune with the reality that more than one people, or ‘nation’, must share this continent. Any attempt to go ‘back to the future’ by slotting Indigenous people into assumed structures appears doomed. Developing a negotiated, or treaty, relationship may be one way of affirming the legitimacy of both Indigenous and non-Indigenous identities in Australia.

Back to the future: citizenship not Aboriginality

Australia’s political culture is devoid of a tradition of explicitly recognising, negotiating and accommodating the rights of those peoples present before European occupation. The relationship between Indigenous and non-Indigenous peoples has thus been dominated by the ongoing dynamic of colonialism. Given this history, developing a culture of negotiation would take time, and would be reliant upon grasping opportunities, making mistakes, and learning through practice. In a very real sense, the opportunity to fundamentally alter relations only came about in 1992 with the High Court’s recognition of native title in Mabo.2 In determining the continued existence of rights which inhered in Aboriginal and Torres Strait Islander peoples, it raised the possibility of Australia as home to two or more nations or peoples. It could have been expected that the court put paid forever to the notion that Indigenous peoples should be treated ‘the same as’ (that is, identically to) non-Indigenous Australians.

The High Court built on this with the 1996 Wik decision.3Wik maintained the priority of non-Indigenous interests that was preserved by Mabo. Because it also raised the possibility of some Indigenous and non-Indigenous rights to land coexisting, Wik did establish a new level of uncertainty in Australia’s land law. But it also created the context for real negotiations to take place between Indigenous and non-Indigenous Australians at local, regional and national levels. Again, as with Mabo, it raised the unfamiliar and challenging idea that Australia was the home of at least two (or three, or many?) peoples. Public reactions to both Mabo and Wik, indicated, perhaps unsurprisingly, this idea did not ‘take’ immediately.

Us, them, and practical reconciliation

As is usually the case in Indigenous-state relations, the trajectory of things to come following Wik was largely determined by those with the power and the numbers — the government. The incoming conservative coalition, elected in a landslide, came to office with a slogan suggesting the end of government for noisy minorities, including Indigenous people. It would govern not for them but ‘For all of us’. It decided that with Wik the pendulum had swung too far in the direction of accommodating collective Indigenous rights. It amended the Native Title Act in order to shore up non-Indigenous interests, and the need for negotiation over land was lost, or at least diminished significantly. The shift toward negotiation between peoples as a major organising principle of Indigenous–state relations (as seen elsewhere) was halted. Coexistence was rejected in favour of the more familiar assimilation/separatism paradigm.

While the two need not be mutually exclusive, the government has continued to eschew the rights agenda in Indigenous affairs in favour of a policy of ‘practical reconciliation’. This policy prioritises alleviating socio-economic disadvantage over the recognition and negotiation of rights. The prime minister has stated:

We are determined to design policy and structure administrative arrangements to address these very real issues and ensure standards in education and employment, health and housing improve to a significant degree … That is why we place a great deal of emphasis on practical reconciliation.4

Practical reconciliation seeks to address Australia’s failure to guarantee the rights of Indigenous peoples to equal enjoyment of the privileges of citizenship. This means taking action to address issues such as health, housing, education and employment as isolated examples of disadvantage suffered by Indigenous individuals.5 There is a real argument that these issues should properly be addressed as part of normal public policy and provisions, even if the delivery of services must be modified to meet particular needs, such as those of remote communities. Yet the inference in labelling them with the slogan ‘practical reconciliation’ is that without this policy, Indigenous people could expect none of the routine services and standards provided for all other Australians. It gives the impression something specific is being contributed toward the project of Indigenous reconciliation, while the outcomes sought are the same as those for all Australians. For this reason, the policy has been described as ‘a smokescreen’.6 Intensive government programs directed at bringing about formal equality with other citizens cannot, on their own, bring about the justice Indigenous people seek.7 While a focus on Indigenous economic development is vital,8 criticisms of practical reconciliation go beyond issues of economic policy, raising important questions about the philosophical underpinnings of the current approach. Mick Dodson and Lisa Strelein see it as an extension of past policies aimed at the ‘civilising’ of the Indigenous population to enjoy the ‘superior’ way of life and enjoy equal participation in the uniform structures of colonial government, where individual rights can be accommodated.9

Larissa Behrendt agrees with this analysis, while also questioning the success of the approach even in its stated aims. She argues:

The Howard government’s policies have done nothing to alter the socio-economic disparities between Indigenous and non-Indigenous Australians. This embrace of an assimilation policy as the new cornerstone in Howard’s Indigenous policy is a dangerous direction and it is disturbing that there has not been more vocal opposition to this reversion to policies that were rejected more than thirty years ago as being fundamentally flawed. It highlights the fact that the federal government has no vision on Indigenous issues and can only repeat antiquated and out-dated policies.10

Yet, underlying the government’s approach, there is an agenda. Residing within policy is the enduring historical belief that any distinct Indigenous status must be denied in order to maintain an imagined national unity — or rather, uniformity. Proponents of this approach want to ‘protect’ their idea of an undifferentiated citizenship from aspects of Aboriginality that have the ability to ‘split the nation’. Under this view, the right of an individual to pursue her or his culture may be supported by the state. However, a distinctly political, collective Indigenous identity cannot be recognised, as it is conceived only in terms of a challenge to that state.

Australia’s denial of a distinctly political rather than cultural Indigenous identity is out of step with both contemporary political philosophy and the reality of other settler states today. Even an avowedly liberal philosopher like Canadian Will Kymlicka suggests those political entities that include a non-dominant Indigenous people or peoples are ‘multi-nation states’ which should engage in negotiations over self-government for these ‘national minorities’.11 The enduring nature and legitimacy of Indigenous demands has led a state such as Canada to engage in modern day treaty-making based on Constitutional recognition of Aboriginal rights, and federal policy acknowledging Aboriginal peoples’ inherent right to self-government.

Why does such an approach seem impossible in Australia? Why is there so little public discourse on creative ways to accommodate Indigenous political aspirations? Our lack of experience in Indigenous–state negotiations is certainly one factor. However, the vehemence with which Australia has sought to deny recognition of Aboriginal peoples beyond roles determined and controlled by the state, such as ‘disadvantaged minority’ or ‘Australian citizen’, indicates that the issue runs deeper than our previous failure to enter treaties, or even pragmatic power politics.

The current government, of course, is not on its own here. It may well be in tune with the majority of Australians in tapping into what Behrendt calls Australia’s ‘psychological terra nullius’12 — the entrenched bias reflected within Australia’s institutional arrangements that continues to deny Indigenous presence. It appears that in Australia a lack of historical recognition has combined with the usual settler-state reluctance to give up power to create an enduring mindset that is unusually suspicious of Indigenous rights. For Mick Dodson, the current federal approach to Indigenous affairs reflects ‘genuine fear’.13 This fear arises because full acceptance of the Indigenous experience is regarded as a challenge to core Liberal Party values. While Liberals champion Australia as ‘one indivisible nation’, their philosophy is actually dichotomous, suggesting a ‘fundamental division between the interests of Indigenous people as a minority and the interests of the mainstream Australian society’.14 The latter constituency feels under siege from increased recognition of an Indigenous identity, which should be inseparable from the mainstream in any meaningful, particularly political, way.

The question of identity may be a key element in the denial of Indigenous rights and status. Whether or not it is actually the case, many non-Indigenous Australians seem to see their identity being fundamentally challenged by the assertion of Indigenous rights. The visceral responses to Mabo and Wik15 have something to do with the way the issue of native title challenges our sense of history, our national sense of self. Leaders who are incapable of facing this ‘crisis of national conscience’ then resort to the ‘unnecessary and draconian’ amendments seen in Wik16 as a means of reasserting the ‘old’ view of an homogeneous political community.

Recent trends such as resistance to Indigenous rights and increased public support for a hard-line approach to asylum seekers led to the suggestion contemporary Australia is ‘an unhappy country, neither relaxed nor comfortable except in the immediate sense’.17 The current (re)construction of Australian identity relies on this, and shies away from embracing a deep pluralism towards the more familiar reassertion of a largely monocultural value system. The move is almost unconscious, being portrayed as non-ideological, common sense and natural. In this view, Indigenous peoples are allowed entry into the political community only at the cost and consequence of giving up their cultural and political distinctiveness. The message is you can be ‘one of us’ as long as you deny who you are. For example, former High Court Justice Harry Gibbs is happy to support Indigenous claims as long as they are presented ‘in the same way as other Australians’.18 This effectively denies the essential particularity of Indigenous experiences, traditions and philosophies — as well as the High Court’s recognition of native title. A colonial history of differential treatment is also conveniently forgotten, and equality is conceived not in terms of substantive outcomes but as treating all people the same from this point onwards. The costs of this ‘forgive and forget’, ‘level playing field’ mentality — costs to the victims of colonisation — are described by Colin Tatz:

It is they who must forgo the desire or need for retributive justice; it is they who must eschew notions of guilt and atonement and, all too often, compensation for harms done. It is they who must agree to the diminution, or even abolition, of that shared historical memory that holds victim groups together. It is they who must concur in the substitution of their memory and their history with our history.19

Historical battles

With the ascension of the Liberal–National coalition in 1996, the idea of Australia as ‘one nation’ returned as a dominant, or at least aspirational, theme of our political culture. Controlling the historical narrative — the story of our identity — was seen as fundamental to asserting a uniform political community. The (re)construction of Australia as ‘one nation’ required the presentation of what has been termed a ‘simplistic, bipolar defence of Australian history and culture’, which drew sharp lines of distinction between unambiguous truth an unacceptable interpretation.20 Howard ‘fundamentally rejected’ arguments that stressed the colonial nature of Australia’s history.21 Following Geoffrey Blainey, he described this position as a ‘black armband’ view of history.22 While Howard was openly critical of those, such as Henry Reynolds, who pursued this line, in the name of ‘free speech’ he supported former Independent member of parliament Pauline Hanson’s right to express views which denied Indigenous people any distinct claim against, or place within, the state.23 The prime minister has most recently found an ally in historian Keith Windschuttle, whose work has attempted to reveal the ‘fabrication’ of conflict history.24

While Windschuttle claims he is merely engaged in a valiant search for the truth, he clearly operates within certain ideological parameters. Firstly, the idea of Indigenous self-government is rejected out of hand as dangerous, unacceptable separatism. He interprets ATSIC’s suggestion ‘that Aboriginal peoples and Torres Strait Islander peoples would want to negotiate self-government in relation to traditional lands as part of a treaty in Australia’25 as a manifesto for the establishment of a ‘black state’ that would jeopardise Australia’s sovereignty and undermine the key concept of ‘a nation for a continent and a continent for a nation’.26 Windschuttle’s assertion that at federation this concept was ‘especially attractive because of its implications for national security’27 certainly does not apply to the Indigenous nation(s) battling to maintain their own security at this time.

Of course, Windschuttle does not view Indigenous society in these terms. For him, Indigenous notions of ‘ownership’ or ‘possession of territory’ were not simply different from our own but ‘not part of the Aborigines’ mental universe’.28 Speaking of Tasmania, he concedes only that ‘some Aborigines did identify themselves with certain territories, to which they had a certain emotional affinity, though not a connection we might call cultural or religious’.29 The idea that Indigenous people had a political connection to land, or were even capable of acting politically, is clearly not in Windschuttle’s mental universe. He suggests the idea that Indigenous people ‘were patriots engaged in a valiant defence of their territory … has nothing to do with the mentality of tribal hunter-gatherers’.30 We are left with a picture of Indigenous people as little more than savages wandering aimlessly over the soil. As with initial denial, continued non-recognition of rights is then axiomatic.

It may be difficult for contemporary Australian liberalism not to view today’s Indigenous society in these terms, which were more explicitly popular in previous centuries. Judith Brett suggests this is because the individualistic philosophy of liberalism needs a means of stressing social unity at a time when previous sources of cohesion such as race, Britishness and the monarchy are largely unavailable.31 What we are left with is the idea of ‘the nation’ as the only potentially unifying symbol to hold together individual citizens. As we have seen, Indigenous people challenge not only this view of one nation but also what Brett sees as liberalism’s ‘deep psychological need’ to make a line between a past riven with rival histories and an unburdened future.32 Given this background, when faced with contemporary Indigenous Australians’ demands, Liberals tend to see pre-modern — ‘pre-historic’ in the literal sense — Indigenous traditions only as holding people back, rather than as sources of strength with the potential to change and adapt. This is the latent meaning of practical reconciliation’s continual stress on alleviating Indigenous ‘disadvantage’.

Under this view, the denial of self-determination is almost complete. The state dictates that ‘Aboriginality’ gives way to ‘citizenship’. There is no choice here, just as there is no need for dialogue. When Aboriginality is perceived as inferior or deficient — and dangerous — there is no understanding that people wish to maintain and enhance that identity, effectively foreclosing the need to discuss creative approaches to autonomy.

In this political climate, arguments for negotiated agreements like treaties appear not just as distractions from the ‘main game’ of practical reconciliation but as incoherent, or inconsistent with ‘our’ sense of self. As such, the prime minister suggested: ‘A nation, an undivided united nation does not make a treaty with itself. I mean, to talk about one part of Australia making a treaty with another part is to accept that we are in effect two nations’.33 With rhetoric that foreshadowed the rise of ‘Hansonism’ nearly a decade later, Howard had stated in 1988: ‘I abhor the notion of an Aboriginal treaty because it is repugnant to the ideals of one Australia’.34

However, if the goal of those who oppose Aboriginal autonomy is to preserve what they view as a threatened national stability, their approach may be selfdefeating. As I have argued, the government would much rather deal with Indigenous issues as though they merely involved the effective delivery of services to individuals or, to the extent that some recognition of native title is unavoidable, the acknowledgement of specific rights held by specific individuals. This response will only perpetuate instability while Indigenous demands for distinct collective recognition are met with blanket denials. As Jeremy Webber suggests:

Durable solutions require the kind of carefully adjusted mechanisms that are only available through negotiations. And to have stable negotiated outcomes, one must have actors with whom one can deal. All parties, Indigenous and non-Indigenous, therefore have an interest in strong, representative and respected Indigenous political institutions.35

ATSIC’s continuing difficulties illustrate how hard it is for these bodies to gain legitimacy in the eyes of either black or white communities. Far from nurturing such institutions, contemporary Liberal ideology combines with state power to suppress political expression of a distinct Indigenous status. This shortsighted view sees Indigenous political aspirations only as a threat to the status quo, not as an opportunity to creatively renegotiate the state along just lines.

Of course, dominant state discourses are never completely dominant. They merely paper over rather than destroy alternative views. Often these views stress the concept of co-existence rather than separatism. For instance, Mick Dodson posits the pursuit of Indigenous land, and other, rights as firmly in tune with ‘core Australian values’, suggesting conservative fears are without legitimacy.36 Another important articulation of this vision was put recently by Patrick Dodson. He summarised much Indigenous argument in presenting a picture which unified Aboriginality and citizenship through the negotiation of a treaty relationship.

Toward treaty: Citizenship and Aboriginality

In May 2000 Patrick Dodson relaunched the treaty debate with his Wentworth Lecture, ‘Beyond the Mourning gate: Dealing with Unfinished Business’.37 The significance of his speech is that it represents a senior Indigenous leader collecting and summarising a number of commonly held notions and feelings delivered in convincing style. Dodson challenged the simplistic separatism/assimilation dichotomy that still tends to dominate discussion of the Indigenous–state relationship. He presented an argument — still comparatively novel in Australia — for recognition of a distinct and political Indigenous identity within the Australian body politic. Far from advocating for a separate state, he argued coexistence is not just possible but essential if the Australian state is to be free of its colonial beginnings. This coexistence is achievable through the establishment of a treaty relationship that provides the framework for the historically consistent twin objectives of Australia’s Indigenous people — exercising the rights that attach to both ‘citizenship and Aboriginality’.38 While this relationship will not be easily achieved, the attraction of Patrick Dodson’s analysis is that, through his emphasis on coexistence, he suggests that despite a colonial history of domination, there is a just place within the Australian state for both Indigenous and non- Indigenous peoples alike. Importantly, the conciliatory tone he adopted exemplifies the spirit of the relationship for which he argues.

Dodson proposes a treaty between ‘the Australian and Aboriginal peoples’ as a means of finally establishing a ‘proper’ relationship between the first Australians and those who came later.39 In an age where Indigenous title and other rights are often seen to be incompatible with the traditions, institutions and sovereignty of the modern state, Dodson’s vision is interesting in its attempt to draw together the apparently competing elements of a distinct Indigenous status and a commitment to citizenship of the state.

Why treaty?

Patrick Dodson reminds us that Indigenous demands for recognition of their particular status and restitution for past wrongs have received in-principle support from a wide variety of local sources, reports, inquiries, royal commissions and speeches. Yet these recognitions have all ultimately failed to secure lasting change because the key problem is that ‘such reports rely upon Governments hearing them, adopting them and driving forward to achieve the intended outcomes’.40

Dodson suggests that the fundamental structural cause of the failure to advance Indigenous aspirations lies in the failure to recognise the status of Indigenous peoples. He restates what others have said before him — the perennial difficulty for ‘Aboriginal Australians’ is that they remain at the mercy of an exclusionary political process that has to date shown little willingness to address the questions that concern them. This is because, to the extent that they have latterly been involved in the political process at all, their inclusion has been on the basis that collectively they represent no more than an interest group or minority — a categorisation that predetermines their marginal status. This has been seen most recently in the native title process where Indigenous people may be regarded as little more than one among hundreds of other stakeholders, despite the unique importance of the issue to Aboriginal and Torres Strait Islanders.41

The same is true of day-to-day democratic politics. While majority rules, the priority of the government is securing votes, and it can use the excuse of electoral support as a mechanism of ‘obstruction and deferral’. Indigenous rights simply do not count when up against ‘government ideology and political pragmatism’.42 The treatment of Indigenous peoples as a mere minority group effectively ensures only ‘incremental change’ to the status quo in the form of ‘short-term stop-gap bureaucratic solutions’. Such ‘solutions’ contrast sharply with the ‘real and lasting change’ Dodson sees as necessary — change to ‘the political architecture of the country’ which aims at nothing less than fundamentally ‘realigning the relationship’ between Indigenous and non-Indigenous peoples in Australia.43 The establishment of a treaty process would address this fundamental realignment.

Sustaining Aboriginality, retaining citizenship

Indigenous people may be both citizens and treaty partners, because Patrick Dodson argues citizenship does not mean ‘sameness’ but ‘substantial equality’.44 Similarly, he speaks of the need for ‘unity’ rather than uniformity within Australia.45 This goal reflects the reality that perhaps a majority of Indigenous people are integrated into society in ways that do not apparently differ vastly to other Australians. What they seek, Dodson argues, is the freedom to determine their status within the broad boundaries of contemporary Australian society. That is, the freedom to live lives ‘similar to that of the majority in Australia but lives uniquely ours. Lives where we meet our obligations as citizens but where we are accommodated also as Aborigines’.46

Here, Dodson describes a nuanced relationship between apparently oppositional concepts of sameness and difference. He argues there is no contradiction between the ‘similarity’ and ‘uniqueness’ he describes, and that Indigenous Australians have always sought recognition of their right to live within these coexisting realities.47 Dodson explains, ‘in common with all other Australians, we must have the right to maintain our unique cultural identity without having our entitlements as Australian citizens held hostage’.48

It is not simply a cultural identity that Patrick Dodson wishes to see recognised. He strongly distances himself from an understanding of Indigenous identity as merely another ingredient in the multicultural melting pot. His description of a ‘unique cultural identity’ retains within it an essential political aspect. Thus, he refers explicitly to the particular dynamics of colonialism that demand attention in the present. It is this experience of colonialism which distinguishes Indigenous Australians from all other ‘cultural minorities’. It is the dynamic of colonialism that distinguishes the Indigenous–state relationship from those between all other minorities and the state.

In the context of current policy, then, Dodson argues: ‘Reconciliation involves beneficial resolution of our status as the first peoples of this country and restitution for the way our inheritance as owners and custodians of the land have been taken from us’. Once this status is recognised, the second part of reconciliation can be addressed. Thus, ‘it also requires us meeting our obligations and responsibilities in the changed world of contemporary Australian society’.49

In referring to this ‘changed world’, Dodson realistically accepts the existence of Australian institutions that will continue to influence Indigenous lives. Given the facts of history, it may be impossible for Indigenous peoples to return to the complete independence seen prior to colonisation — if that is what they desire. Yet the fact that Indigenous leaders such as Patrick Dodson do not advocate for complete independence does not automatically render Indigenous laws and traditions irrelevant or subordinate. Acknowledging a degree of connectedness and interdependence should in fact allay separatist fears, and make accommodation of Indigenous political aspirations easier.

While acknowledging contemporary realities, Dodson certainly sees continuing Indigenous traditions as the key to maintaining a distinct Aboriginal identity, even (or particularly) one expressed within the geographical boundaries of the current state. At stake in the maintenance of these traditions is nothing less than the continued existence of Indigenous peoples. He argues that ‘if we lose our sense of value and meaning in the Aboriginal world then we become a successful clone of what assimilation policies and strategies sought to achieve’.50 In stressing the importance of both citizenship and a sense of meaning ‘in the Aboriginal world’, Dodson recognises the enjoyment of those rights delegated by the state need not negate or extinguish the inherent rights that flow from Indigenous status as First Peoples. He suggests:

For Aboriginal Australians the search has always been for governments to enter into serious dialogue about our position in the nation [or state] and for the Constitution to recognise us as the First Australians with our Indigenous rights, obligations and responsibilities respected and recognised.51

The treaty (as) relationship

Patrick Dodson suggests that there are currently two clear options before us in the conduct of Indigenous–state relations. We may remain within a colonial paradigm where the relationship is governed by European ‘traditions of superiority’. In this relationship, these traditions are relied upon to deny the possibility of Indigenous authority flowing from their own social and political traditions. Thus, ‘Everything about us has to be subject and subordinate to the rules, practices and values of the dominant society’.52 This state of affairs not only diminishes the lives of Indigenous peoples, but also non-Indigenous Australians, and the society we must share.

The alternative to this essentially assimilationist paradigm does not rely on the notion of separatism but coexistence. A treaty will not magically eradicate Indigenous disadvantage and create a sustainable economic base. It is not, as Dodson says, about a single document or event, but ‘a continuous state of being for the government and society’.53 The significance of the treaty process lies in the relationship that is established through the process of negotiating an agreement or, more likely, agreements.

The spectre of a treaty process ‘splitting the nation’ relies on the fundamental assertion that we are indeed, ‘one nation’, when the single most important feature of Australia’s history is the colonisation of Indigenous peoples who already occupied Australia by peoples who came later. While a treaty process will not resolve all historical grievances, nor immediately fix contemporary disadvantage; to expect it to do so is to misunderstand the nature of treaty as a political instrument. In bringing together nations or peoples in a process of negotiation, the treaty process establishes and then reinforces norms of mutual recognition, mutual respect, coexistence and the equality of peoples. It is a beginning, not an ending. It provides the context for issues to be resolved, rather than resolving the issues in and of itself. In doing so, the treaty relationship has the potential to deliver to the transformed state the unity it currently lacks, and must always lack while the claims of First Peoples are not addressed in good faith.

This then, is the most profound contribution to be made by the treaty relationship. It can facilitate the desired unity required of a functioning state without insisting on an inevitably destructive uniformity. Similarly, it should be clear by now that the type of citizenship Patrick Dodson envisages for Indigenous people will not be the same as that of non-Indigenous people. What Indigenous Australians seek is substantive equality rather than sameness. So while Dodson’s conception goes a long way to legitimating the jurisdiction of the state, it also leaves room for the exercise of independent Indigenous action. The nature of this coexistence will have to be negotiated — as will the question of who signs, the limits of jurisdiction, the need for shared standards, and a host of other difficult issues. However, to fail at the outset to investigate the possibilities of a treaty process simply because such issues are complex is not merely disingenuous, it continues Australia’s ‘psychological terra nullius’, again leaving Indigenous demands unaddressed. Sooner or later, the state must recognise Indigenous Australians have always sought:

the guarantee of their rights to live within our law and culture. To have recognition and respect in the Australian law that has assumed its power over our ancient rights and people. To be able to carry out our laws, customs and traditions through a formal accord recognising our status alongside the Australian law.54

A mutually determined treaty process may be the formal accord Patrick Dodson speaks of here, providing a middle road between the extremes of assimilation and separatism.

Conclusion

Despite the gains of the eighties and nineties, Peter Read suggests that ‘non- Aborigines have not yet, despite ATSIC, a number of royal commissions, Mabo, the native title legislation, and the Social Justice Package, come to grips with the differentness of Aboriginal culture’.55 Differentness for its own sake can be dangerous of course. It can banish Indigenous people from our universe of understanding to a lesser realm where the same rights do not apply, where the same emotions are not felt. But denying what Noel Pearson describes as the ‘insuppressible reality’ that Australia is made up of different peoples,56 is also doomed to failure.

Simply asserting Australians are ‘one people’ for whom ‘the same’ treatment is appropriate pretends there are no peoples who base their identity on a set of rights and traditions that had their source not in English common law, nor European history, but with their Indigenous ancestors. Notwithstanding a long history of attempts to do so, strategies aimed at treating such rights as if they do not exist cannot work. Firstly, there is a growing body of international theory and practice which contradicts this simplistic assertion.57 But perhaps more importantly, Indigenous demands, and the peoples who make them, prevail even when faced with the starkest denials by the most powerful organs of the state.

Sooner or later in Australia, concepts of national uniformity will have to give way to the reality contained within Mabo that ‘Aboriginal law does now run in Australia’.58 As Mick Dodson suggests, rather than continue to rely on them, we ‘need to be moving away from legal theories based on discrimination and looking at the day-to-day realities of indigenous people’.59 Yet there is no doubt that consistent and strident assertions of Indigenous identity and sovereignty have had the effect of challenging the legitimacy and confidence of Australian identity and institutions. Even as they come under sustained attack (and because of such ‘attacks’), triumphal historical narratives of old continue to define those who see their very identity at stake — from the prime minister down. However, we cannot replace one exclusive historically based narrative with another if we are to promote a cohesive society. As such, Richard Mulgan suggests that:

what is needed is a theory of constitutional legitimacy that equally legitimates Aboriginal rights and the general citizenship rights of all Australians and the institutional framework that creates and supports these rights.60

It is apparent that many Indigenous aspirants seek recognition of both distinct rights and general citizenship rights. Yet the expression of a distinct political status also assumes the right to choose the relationship Indigenous people have with(in) this institutional framework. Dialogue on this subject has been constrained by those wishing to maintain current power relations, but at a deeper level the need for dialogue has been precluded by the failure to investigate Indigenous status as a distinct people, or peoples. This is part of the ‘psychological terra nullius’ that prevents deep consideration of many alternatives to current Indigenous–state relations. In this context, Tatz’s call — some three decades ago — for a new framework ‘for and about Aborigines’ remains apt. He felt the need:

to find a framework and the right words with which to get across a perception of people — a consciousness and an attitude — different from that which has kept Aborigines inferior, aberrant, inept, oppressed, depressed, suppressed both in image and in reality … I see an urgent need for a new frame of reference for and about Aborigines.61

There is no easy formula for altering the ‘perception of a people’. In political terms, it is the shift from ‘consultation’ to ‘negotiation’ that can only come about if Indigenous Australians are seen as worthy of being, in C D Rowley’s words, a ‘full negotiating legal person vis-à-vis the Commonwealth’.62 Indigenous peoples have consistently argued for a distinct political status, yet have been denied a hearing primarily due to historically informed perceptions of them as ‘less than’, and latterly ‘the same as’. The circularity of Indigenous–state relations in Australia in the last thirty years — a period which both began and ended with calls for a treaty — suggests the need for some sort of ‘circuit-breaker’ that can transform both non-Indigenous perception as well as Indigenous status.

The treaty process offers potential as just such a transformative process. Echoing Mick Dodson’s plea for a theoretical framework that addresses the Indigenous reality, Michael Detmold noted: ‘We have made Aboriginal Australians citizens by our Constitution. But that is just our idea. Atreaty stretches beyond the idea of Constitution into the reality of people in place’.63We now need to embrace rather than fear a creative national dialogue about the reality of people in place.

Notes

Many thanks to Dr Clair Scrine for comments on earlier drafts of this paper.

1 Patrick Dodson, The Wentworth Lecture 2000. Beyond the Mourning Gate — Dealing with Unfinished Business, AIATSIS, Canberra, 2000. The lecture can also be found at http://www.aiatsis.gov.au/lbry/dig_prgm/wentworth/wentworthcontents.htm
2 Mabo v Queensland [No 2] (1992) 175 CLR 1.
3 The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors (1996) (CTH).
4 John Howard cited in Larissa Behrendt, ‘Unfinished journey — Indigenous self-determination’, Arena, no 58, April–May 2002, p 26.
5 Michael Dodson and Lisa Strelein, ‘Australia’s nation-building: renegotiating the relationship between Indigenous peoples and the state’, University of New South Wales Law Journal, vol 24, no 3, 2001, pp 832–3.
6 Mike Steketee, Weekend Australian, 19–20 July 2003.
7 Dodson and Strelein, op. cit., p 838.
8 For examples of Noel Pearson’s arguments for economic development, see www.capeyorkpartnerships.com.
9 Dodson and Strelein, op. cit., p 832.
10 Larissa Behrendt, ‘Blood from a stone’, Arena, no 60, August–September 2002, p 34.
11 See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, Clarenden Press, Oxford, 1995.
12 Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Social Justice, Federation Press, Sydney, 2003, p 3.
13 Aboriginal and Torres Strait Islander Social Justice Commissioner, Fifth Report, AGPS, Canberra, 1997, p 4.
14 ibid., p 6.
15 See Gary D Meyers and Simone C Muller, Through the Eyes of the Media (Part I) : a Brief History of the Political and Social Responses to Mabo v Queensland, Murdoch University Environmental Law & Policy Centre, Murdoch, 1995; and Gary D Meyers and Sonia Potter, Mabo, Through the Eyes of the Media. (Part IV). Answering the Pastoral Leases Question, Murdoch University Environmental Law & Policy Centre, Murdoch, 1999.
16 Brian Keon-Cohen, ‘Wik: confusing myth and reality’, University of New South Wales Law Journal, vol 3, no 2, 1997, p 32.
17 Peter Beilharz, ‘Australian civilisation and its discontents’, Thesis Eleven, no 64, February 2001, p 65.
18 Harry Gibbs, ‘Two Rules of Law?’, accessed from http://www.samuelgriffith.org.au/papers/html/volume9/v9chap3.htm
19 Colin Tatz, Genocide Perspectives I, Centre for Comparative Genocide Studies Macquarie University, Sydney, 1997, p 310.
20 Andrew Markus, Race: John Howard and the Remaking of Australia, Allen and Unwin, Sydney, 2001, p 83. For discussion of Aboriginal historiography in Australia see Bain Attwood (ed), In the Age of Mabo: History, Aborigines and Australia, Allen & Unwin, Sydney, 1996.
21 Cited in Mark McKenna, ‘Different perspectives on black armband history’, Parliamentary Library Research Paper Number 5, 10 November 1997.
22 Geoffrey Blainey first used the term ‘black armband’ in his 26th Latham Memorial Speech delivered on 29 April 1993. See Blainey, ‘Goodbye to all that?’, Weekend Australian, 1–2 May 1993, for an edited extract.
23 See Philip Adams (ed), The Retreat from Tolerance: a Snapshot of Australian Society, ABC Books, Sydney, 1997.
24 Keith Windschuttle, The Fabrication of Aboriginal History, Macleay Press, Paddington NSW, 2002.
25 ATSIC, Treaty: Let’s Get it Right, ATSIC National Treaty Support Group, 2001, p 17.
26 Keith Windschuttle, ‘Why there should be no Aboriginal treaty’, Quadrant, vol 45, no 10, October 2001, p 21.
27 ibid.
28 Keith Windschuttle, ‘History, anthropology and the politics of Aboriginal sovereignty’, National Observer, issue 52, Autumn 2002, p 25.
29 ibid.
30 Windschuttle, ibid., p 30.
31 Judith Brett, ‘The treaty process and the limits of Australian Liberalism’, paper delivered to the AIATSIS seminar series ‘Limits and possibilities of a treaty process’, 4 June 2001. Accessed from http://www.aiatsis.gov.au:80/rsrch/smnrs/papers/brett.htm
32 ibid.
33 Tony Wright and Kerry Taylor, ‘PM rules out divisive treaty’, Age, 30 May 2000 [emphasis added].
34 See John Howard, ‘Treaty is a recipe for separatism’, in Ken Baker (ed), A Treaty with the Aborigines?, Institute of Public Affairs, Melbourne, 1988.
35 Jeremy Webber, ‘Native title as self-government’, University of New South Wales Law Journal, vol 22, no 2, 1999, p 603.
36 Aboriginal and Torres Strait Islander Social Justice Commissioner, op. cit., p 5.
37 Patrick Dodson,op. cit.
38 ibid., p 9 [emphasis mine].
39 ibid., p 15.
40 ibid., p 10.
41 See Lisa Strelein, ‘Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December 2002) – Comment’, Land, Rights, Laws: Issues of Native Title, vol 2, no 21, 2003.
42 Patrick Dodson, op. cit., p 13
43 ibid., p 8.
44 ibid.
45 ibid., p 12.
46 ibid., p 14.
47 ibid., p 9.
48 ibid., p 20.
49 ibid., p 12.
50 ibid., p 9.
51 ibid., p 15.
52 ibid., p 13.
53 ibid.
54 ibid., p 16.
55 Peter Read, review of H C Coombs, Aboriginal Autonomy: Issues and Strategies, Cambridge University Press, Melbourne, 1994, in Sydney Law Review, no 3, September 1995, p 489.
56 Noel Pearson, ‘Major changes to ATSIC are not the answer’, Options, no 16, April 2003, p 8. Available at http://www.sa.liberal.org.au/pyne/default.asp?Menu=options
57 Recent developments include the UN Draft Declaration on the Rights of Indigenous Peoples, and the establishment of a Permanent Forum on Indigenous Issues, whose first session was held 13–24 May 2002. See http://www.unhchr.ch/indigenous/main.html
58 Barbara Hocking, ‘Aboriginal law does now run in Australia’, Sydney Law Review, vol 15, no 2, 1993.
59 Michael Dodson, ‘Human Rights and the extinguishment of native title’, in Eliot Johnson, Martin Hinton and Daryle Higney (eds), Indigenous Australians and the Law, Cavendish Publishing, Sydney, 1997, p 165.
60 Richard Mulgan, ‘Citizenship and legitimacy in post-colonial Australia’, in Nicolas Petersen and Will Sanders (eds), Citizenship and Indigenous Australians: Changing Conceptions and Possibilities, Cambridge University Press, Cambridge, 1999, p 186.
61 Colin Tatz, Aborigines and Uranium and Other Essays, Heinmann Educational Australia, Richmond Vic, 1982, p 5.
62 C D Rowley, Recovery: The Politics of Aboriginal Reform, Penguin Books, Ringwood Victoria, p 42.
63 Michael Detmold, ‘Australian law: freedom and identity’, Sydney Law Review, vol 12, March


Originally published in Write/Up, Elizabeth Hartrick, Robert Hogg, Sian Supski (ed.), St Lucia, API Network and UQP, 2004.