Despite the fanfare of a fairly one-sided proposal up until now, there is growing sentiment within the Aboriginal population for preferring a treaty over constitutional recognition. It seems the razzle dazzle of footballers, airlines and the backing of all political parties has had little, if any, effect on Aboriginal opinion.
At the core of the constitutional recognition campaign is the emotional need of many Aboriginals wanting to be recognised in Australia’s most potent political document - the Constitution - matched by a desire by many non-Aboriginals wanting to cleanse the past by re-establishing a relationship with Aboriginals based on that recognition. Emotions are important in our lives and should not be trivialised.
The constitutional recognition campaigners understandably added more product to the proposal by seeking to stop Federal Parliament using the race power to discriminate against Aboriginals (NT Intervention; Hindmarsh Bridge and validating invalid grants under the Native Title Act) and removing what they say is the now obsolete but nevertheless odious section 25 (theoretically allowing for stopping Aboriginals from voting). Noel Pearson has proposed an advisory body be included in the referendum.
The view expressed at the Melbourne meeting of 100 people from a broad cross section of Aboriginal and Islander communities is that a treaty capable of delivering land, empowerment, guaranteed resources and forms of self-determination is far more beneficial than any constitutional recognition could possibly be. The relationship between constitutional recognition and a treaty is also contentious because of the understandable fear that if recognition and a treaty are run together, the politicians may take up the easier option (recognition) and defer the more contentious, treaty. In that scenario, a key consideration is what happens to a treaty if the recognition proposal is defeated at a referendum.
A lost referendum on recognition may spook politicians from openly supporting a treaty. Their thinking may be that if voters rejected minimalist recognition it would be politically risky to stake their reputation on other Aboriginal reforms, especially involving Aboriginal rights. The experience of the lost referendum on NT statehood in 1998 offers a cautionary precedent.
When the NT referendum for statehood was narrowly rejected it virtually doomed any further serious support by Canberra for legislating for Territory statehood. 18 years later, despite the worthy efforts of some Territorians, no major political party has shown any interest in reigniting statehood as a political issue.
There is also a timing issue if a treaty is to be preferred over recognition. A referendum on recognition is proposed for May 2017 (unlikely) and any treaty is a good 5-10 years away. If recognition is worthy, should it be deferred until a treaty is completed or near completed? Then again, if a treaty becomes more probable, a different form of constitutional recognition might be preferable: preventing any treaty from being altered or repealed without Indigenous approval. That overcomes the single weakness of a legislated treaty of the ability of later parliaments to remove an agreement legislated by a previous parliament.
There were no conclusions from the Melbourne meeting and nor should there be. It is the beginning of consultation, not the end.