OPINION | Treaty is the demand of Aboriginal and Torres Strait Islander people beyond a single constitutional moment, writes Mark MacMillan.
By
Mark McMillan

Source:
NITV News
16 Jun 2016 - 11:16 AM  UPDATED 16 Jun 2016 - 11:21 AM

I am astounded at the persistent lack of interest of the leaders of the major political parties in hearing the voices of Aboriginal and Torres Strait Islander peoples and organisations when it comes to the ongoing demand by our mobs for a clear and unambiguous lawful relationship to be understood.

This understanding of the relationship can come through a treaty or treaties.

Our ancestors and Elders have been demanding recognition of these relationships through a Treaty (or treaties) since contact.

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The current Treaty discussions highlights what has always been known by black fellas... that is, we are in lawful relations. As long as white fellas exist (and you do), and we exist (and we do) - then there is a continuing relationship.

This relationship is not one of politics. It is a relationship of law and laws. The current leaders of the major political parties keep insisting that these relationships – and how they can be known by white people – are only issues of politics.

When Aboriginal and Torres Strait Islander leaders and activists state that ‘we have never ceded our sovereignty’, such statements have been characterised as political statements. Such statements are the activity of LAW (both ours and yours) and are not just political.

Continually rejecting cession as a sovereign act, is a lawful action. After the Mabo decision in 1992 when the settler legal system rejected the doctrine of Terra Nullius as the lawful mode of acquisition, the High Court also decided that Indigenous people had never ceded sovereignty either – we never agreed to your sovereignty. This created a moment of clarity for the Australian legal system to identify that its very existence requires a lawful relationship with Indigenous peoples. 

What might be new for white fellas, including Bill Shorten and Malcom Turnbull, is that all of the current discussions, whether they be Treaty, or constitutional recognition, are for us - as Aboriginal and Torres Strait Islander peoples - about lawful relationships. And more importantly, what Aboriginal and Torres Strait Islander peoples are demanding of what must be heard in the current debates, and how we think that you should be in the relationship with us throughout these debates… and beyond.  Instead the current debates are framed as: what white people can give us (recognition); Or, what cannot be given (Treaty).

Bill Shorten ventured (some say steered) into the unchartered world of the other ‘R’ word on the ABC's 'Q & A' television program on Monday night. That 'R' word is: RELATIONSHIP. It is clear that Shorten is striving to have a more nuanced understanding of actually how to be in relationship with Aboriginal and Torres Peoples and Nations. 'Q&A' was a public demonstration of his own evolution.

Shorten was demonstrating that Treaty and constitutional recognition are not mutually exclusive. They are both public opportunities to state what a lawful relationship is, and where such relationships can be seen. It is fitting that the sovereign relationships should be recognised in the constitution. That for me is what recognition should be: recognition of sovereign relationships. ‘Recognition’ should not only be about racial discrimination or merely symbolic recognition – by naming us. ‘Recognition’ must be more sophisticated than what it has been allowed (some might say directed) to be and MUST be broadened to include an opportunity for the relationship to be known.  Shorten seemed to get this.

The Prime Minister’s response to Shorten’s bringing together the logic of Treaty and constitutional recognition in the press  demonstrates a lack of will to a relationship; a relationship that Aboriginal and Torres Strait Islanders continually demand exists.

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Suggesting that a Treaty imperils an opportunity to get a successful referendum really exposes the lack of depth to the debates about a relationship with Aboriginal and Torres Islander peoples. The Prime Minister’s severing of Treaty from ‘con rec’ by allowing fear of failure of the referendum suggests that Australians do not realise that they are actually in a relationship with us - now.

The National Congress of Australia’s First Peoples, and ATSIC before it, are demanding a Treaty at the national level. And why is this demand being publicly articulated now? It is because Treaty is the demand of Aboriginal and Torres Strait Islander people beyond a single constitutional moment.

And it makes sense that if 'con rec' is about recognising the relationship with us, then treaty is the mechanism of which that relationship can be carried forward. 

Mark McMillan is a Wiradjuri man from Trangie, NSW and an Associate Professor at Melbourne Law School.  He is a Director of the National Congress of Australia’s First Peoples and a board member of the Trangie Local Aboriginal Land Council. Mark is a member and Node Leader of the National Indigenous Research and Knowledges Network.