Constitutional Recognition or a Treaty: Horns of a Dilemma or False Dichotomy?

The Aboriginal Tent Embassy as it looked in January 1999. Photography: The Daily Telegraph.

Asmi Wood is an Associate Professor at the ANU College of Law.

The First Peoples of this continent were recognised in the common law by the High Court in 1992, in the seminal Mabo #2 case. The next logical legal step, arguably, is constitutional recognition, thus harmonising Australian law. Recognition, as equals, is a prerequisite for establishing respectful, formal legal relations between Indigenous people and non-Indigenous people in Australia and creating a level legal platform for the subsequent legislative framework. Recognition, however, is often conflated – often for understandable reasons – with broader issues, such as the creation of clear positive human rights in the Constitution or the conclusion of a treaty between the ‘two peoples’ – two very broad notions that need to be unpacked.

History shows that notwithstanding the mention of ‘aboriginal natives’ in the original Constitution, the fiction of Australia as terra nullius – nobody’s land – continued through Federation and formalised Indigenous ‘invisibility’ under the law.  This situation continued until the 1967 Referendum, when the Constitution was amended to legitimise the counting of ‘aboriginal natives’ in the National Census, but not to recognise us as equals. In the 1992 Mabo #2 Case, the Mason Court recognised Indigenous people as the first people of the continent in the common law, which Parliament codified in statute.  Constitutional recognition, if successful, will synchronise the common law and the Constitution on this issue with no conditions – two specific areas of concern for many Indigenous people which are the surrender of sovereignty and precluding ongoing negotiations between the parties in the future.

On the other hand, recognition does not preclude the possibility of concluding a treaty between parties in the future, nor do the currently proposed forms of recognition cede Aboriginal sovereignty. The recognition referendum, if successful, would be a unilateral act, expressing the will of the majority of voters, most of whom are non-Indigenous. What recognition does for the nation, however, is to synchronise the law, which recognises the First Peoples, with the Constitution, which in effect still carries Founding Fathers’ notion of a continent that was terra nullius. Recognition will explicitly and finally expunge this lie of an empty land, one that remains embedded in the Constitution, a document which was created at a time when Indigenous people were considered sub-human.

Recognition provides a first necessary legal step towards an entrenched recognition of Australia’s Indigenous civilisations in their truest and broadest sense. That is, recognition is a step in that proverbial 1000 mile journey to acknowledge Indigenous civilisations, languages, laws, cultures and customs, and one that is closer to the beginning than it is to its end. Formal recognition is a first but necessary step towards the majority of Australians beginning to appreciate the rich civilisation on this continent, one that has continued unbroken from the dawn of time.  Such an understanding is arguably a necessary condition for the respectful coexistence that would enrich all and promote common understanding, or in Yothu Yindi’s words: ‘Now two rivers run their course, separated for so long, I’m dreaming of a brighter day, when the waters will be one.’

Further, without this recognition, a treaty between two parties who do not recognise each other’s existence is a contradiction in terms. In comparable jurisdictions with colonised Indigenous minorities, recognition was a consequence of a treaty, albeit a poor second best option.  For example, in New Zealand (Aotearoa) or the US and Canada (Turtle Island), the Europeans did recognise the existence of the Indigenous people but with the quid pro quo of partial or total loss of Indigenous sovereignty.  The Australian referendum affords Indigenous people here the opportunity to entrench formal recognition of their status in the Australian Constitution without ceding sovereignty, as neither the Australian Constitution nor the common law imposes such an obligation on Indigenous people.

Paradoxically a great advantage that Indigenous people in Australia have today, as compared with Indigenous peoples in other comparable jurisdictions, is that the absence of a treaty so far, clearly means that sovereignty was never lawfully ceded. Indeed, the very notion of terra nullius negates the possibility of there being anyone to cede sovereignty. An Australian treaty that explicitly or implicitly accepts the Crown as the de facto superior Sovereign could, depending upon the exact wording, cede Indigenous sovereignty. This most likely would not be acceptable to the majority of Indigenous people, and treaty formation should therefore at this stage be deferred until Indigenous people can carefully craft a form of words that would do our ancestors proud.  Nevertheless,  an honourable treaty can be constructed if it is approved by Aboriginal elders and is to support recognition already existing in the constitution. This is the process is currently underway in the state of Victoria.

On the other hand, Australia’s history of constitutional amendments shows significant conservatism. Thus the real question for the referendum surrounds the question itself. What is the ‘right question’ that a majority will support? Arguably, the wording of any successful formulation needs to be fairly straightforward.  Complex and overly convoluted language and reasoning could rightly be interpreted as deceptive legal jargon, containing hidden surprises and consequently fail.  The only way to gain the majority’s trust is to seek gradual change; careful, deliberate change is also arguably less likely to entrench further disadvantage.  The question must also ensure the repeal of the racially discriminatory provisions in the Constitution – and yes, the Constitution does permit detrimental treatment of Indigenous people, a shameful relic of the past and one unbecoming of an otherwise progressive advanced and modern country.

A simple statement of recognition coupled with the rescission of the racially discriminatory provisions in the Constitution such as ‘Should Australia recognise Indigenous Peoples as equals?’, should both gain majority support and create the legal conditions for the equal treatment of Indigenous people and consequently, better outcomes in the near future. However, in Australia, recognition is merely a prerequisite to a durable and long-term solution that will reverse the impact of two centuries of oppression and neglect. Recognition alone cannot and will not solve every problem, but can provide a sound legal and political basis for negotiation between two parties who recognise, acknowledge and hopefully respect one another and their respective civilisations.