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Reflections on the history
of Indigenous people's struggle for human rights in Australia - What role
could a treaty play?

Dr William Jonas AM

Aboriginal and Torres Strait Islander Social Justice Commissioner, Human
Rights and Equal Opportunity Commission

Treaty - Advancing reconciliation

Murdoch University, Western Australia, 27 June 2002

I would like to begin
by acknowledging the Noongar people and to thank Mort Hansen for his welcome
to country yesterday.

The title of this
session on the conference program is 'The history of human rights in Australian
law'. I have chosen to slightly change the topic for a number of reasons.
The main reason is because Indigenous peoples' struggle for recognition
of their human rights remains to a large extent unfulfilled. Consequently,
it is not, and has never been, well reflected in Australian law. Second,
because human rights continue to be poorly and rather patchily implemented
in our legal system. A focus on human rights in Australian law would therefore
leave us missing at least half the story of the struggle for recognition
by Indigenous peoples in this country.

Accordingly, I intend
to provide an overview of Indigenous people's struggle for recognition
of their human rights, noting some of the significant gains that have
been made to date as well as restrictions on the exercise of rights. As
my time is short, I can only do this in an extremely limited way. I will
then conclude with some observations about where we are currently at,
the problems we continue to face and how a treaty could assist us to provide
the just settlement that continues to elude Indigenous peoples.

Aborigines and Torres
Strait Islanders - the Indigenous peoples of this country - have fought
for the recognition of their human rights since the beginning of European
settlement. We could look to the efforts of every generation of Indigenous
peoples and we would find resistance and the assertion of rights - though
earlier generations would not have referred to them as 'rights'.

Over the course of
the nineteenth century, Indigenous peoples faced decimation of their populations
through warfare, disease and dislocation, and the slow but sure dispossession
from their lands as the white man's frontier expanded 'on the sheep's
back' as Geoffrey Blainey once put it.

As has been noted
already in this conference, there was no negotiation with Indigenous peoples
about the taking of their land. There was no compensation. The colonization
process was one based on the belief of racial superiority over Indigenous
peoples. This was manifested through the assertion of terra nullius
- that Indigenous peoples were so low in the social scale as to not have
systems of government, property, law and culture that could be recognized.
Instead, this land was deemed to be empty - land belonging to no one.

The injustice of
this history, and the illegitimacy of this process, has only just begun
to be recognized for what it is in recent years. The foundational myth
of peaceful, consensual settlement has created what the Aboriginal Provincial
Government refer to as a lack of 'moral legitimacy' of the assertion of
sovereignty over Indigenous peoples.

By the end of the
nineteenth century there had emerged some key themes to the treatment
of Indigenous peoples - first, that our numbers were so reduced that we
were seen to be a 'dying race', with policies very much oriented towards
facilitating this eventuality by 'smoothing the dying pillow'. This approach
was implemented largely through a system of segregation of Aboriginal
people to reserves and progressively into the 20th century through attempts
at assimilation through the separation of Indigenous children of mixed
descent from their families. This was accompanied by the most extraordinary
levels of regulation and control over the lives and movement of Indigenous
peoples. And this regulation by governments led to an almost total denial
of the citizenship rights of Indigenous peoples.

This is very much
the situation as it existed at federation in 1900. The federal Constitution
of 1900 contained only two references to Indigenous peoples - both which
excluded Indigenous people. Section 127 provided that in the reckoning
of the numbers of the Commonwealth 'aboriginal natives shall not be counted',
whereas section 51(26) - the so-called 'races power' - provided the federal
Parliament with the ability to make laws with respect to 'the people of
any race, other than the Aboriginal race in any state, for whom it is
deemed necessary to make special laws'.

There is a perception
that because of these provisions the Constitution in fact operated to
exclude Indigenous peoples from citizenship in Australia. This is, however,
a fallacy. As John Chesterman and Brian Galligan note in their excellent
study of Indigenous citizenship in Australia which is titled Citizens
without rights:

The exclusion
of Aborigines from citizenship was by no means a constitutionally ordained
necessity, but rather a deliberate product of Commonwealth and State
government legislation and administration. The exclusionary category
of 'aboriginal native' was central to the institutional definition and
development of Australian citizenship, and was created by the legislature,
defended to a certain extent by the judiciary, and most importantly,
developed, nurtured and administered by the bureaucracy for over sixty
years. Far from being a product of a rigid constitution, conceived and
endorsed by nineteenth century colonial racists, the long exclusion
of Aboriginal Australians from Australian citizenship was implemented
and routinely administered by Australian governments and bureaucracy
until well into the second half of the twentieth century. (p84)…

In this sense the
Constitution cannot be seen as a taker of rights -it is not the Constitution
for example that excluded many Indigenous people from voting or that imposed
strict regulation of employment. That instead was the result of a complex
web of state and territory laws, regulations and ordinances.

But the Constitution
can also not be seen as a protector of rights. Chief Justice Malcolm yesterday
talked about the absence of a Bill of Rights in Australia. Many people
also often cite the absence of a power for the Commonwealth to make special
laws for Aboriginal peoples as problematic in this regard.

And there are many
examples in the following fifty years which demonstrate that the federal
government would use the express limitation of the races power in section
51(26) as a basis for not extending many basic citizenship entitlements
to Indigenous peoples. It was, of course, an erroneous reading of the
races power to suggest that it did not provide the federal government
with the power to include Aboriginal peoples within programs and service
delivery which were provided to the general community - instead it simply
excluded the establishment of specialised laws and programs.

It must also be said
that as a practical matter it is unlikely that - at least in the first
half of the twentieth century - direct powers in the federal government
to legislate for Indigenous peoples would have been of much benefit or
resulted in a different situation to that which eventuated. This is clear
by looking at the way that the Commonwealth administered the Northern
Territory from 1911, with a system of control strikingly similar to other
states at the time. The lack of protection in the Constitution, however,
is something that has been of great significance in the recent past, and
I'll talk further about that shortly.

The movement for
recognition of rights in the fifty or sixty years since federation can
generally be summarized as one which focused on trying to achieve recognition
of basic citizenship entitlements and the achievement of formal equality
with the non-Indigenous population - that is, sameness of treatment.

One of the most important
examples of this struggle for equality took place on the 150th anniversary
of white settlement - Australia Day 1938. An event known as the Day of
Mourning was held in Sydney by the Aborigines Progressive Association.
Following this day, the Aborigines Progressive Association presented a
'10 point plan' - perhaps the original ten point plan - to Prime Minister
Lyons on 13 January 1938 which included the following demands:

• Commonwealth
  control of Aboriginal affairs;
• The establishment
  of a Commonwealth minister for Aboriginal affairs with cabinet rank
  - something which, incidentally, Minister Ruddock is the first to have
  achieved;
• The establishment
  of a Department of Aboriginal Affairs with Aboriginal representation;
• The aim of the
  department being to raise Indigenous peoples to 'full citizen status
  and civil equality with the whites in Australia', including through
  the provision of educational opportunities and equal entitlement to
  employment conditions, workers compensation and insurance, social security,
  the application of the same laws of intestacy and transmission of property
  as white people, to receive wages in cash, and to be able to purchase
  and own property;
• The application
  of the same marriage laws and housing entitlements as whites;
• Land settlement
  policies similar to the soldier settlers scheme to be introduced and
  financed; and
• Entitlements
  to maternity treatment and clinic instruction on baby welfare for Aboriginal
  mothers, among other things.

By 1948, however,
there remained significant limitations on Indigenous peoples freedoms,
such as statutory bars on Aboriginal people voting in the NT, WA and the
NT; laws which allowed removal to reserves in all states and territories
except Tasmania; and the formal regulation of Indigenous employment in
all states except NSW, South Australia and Tasmania.

At the same time
at the federal level, Indigenous people who were under state control through
reservations were not entitled to the range of social security benefits
that existed at the time (age, invalid and widows pensions plus maternity
allowances). Those who were exempt also did not automatically have an
entitlement to such benefits - it was then a matter of bureaucratic determination
as to whether they were 'sufficiently advanced'. Should they be found
to be so advanced, the benefits could then be paid to an institution rather
than the individual concerned. New legislation in 1959 simplified the
system but continued to deny to 'nomadic or primitive' Aborigines any
entitlement to welfare. The last exclusionary provisions relating to welfare
entitlements were removed in 1966, ie, just 36 years ago.

I have gone through
the range of exclusions in some detail to highlight the extent of the
control and exclusion that was exercised over Indigenous peoples lives.
But I also wanted to emphasise how recently this approach was implemented,
for we are talking about the living memory of many Indigenous people.
The implications of this in terms of distrust of the broader community
and the lack of skills to participate in the broader society on an equal
footing cannot be forgotten or underestimated.

Most of the issues
that have been used as examples - voting rights, social security entitlements
etc - were remedied by the mid to late 1960s, and it is also important
to recognize this. We also have to reflect, however, on the entrenched
disparity that their enforcement until the 1960s has had on Indigenous
peoples. In my view, a significant factor that the broader community is
still yet to embrace sufficiently is recognition that mere formal equality
of treatment is not sufficient to undo generations of systemic discrimination
and exclusion. This is a key issue for the treaty debate and I will talk
about it again shortly.

Perhaps the culmination
of this period was the 1967 Referendum. On 27 May 1967, 90.77 % of Australians
agreed to the Referendum question to delete section 127 of the Constitution
and remove the words which excluded Aborigines from the scope of the races
power.

There had been a
growing movement dating largely to the 1950s to alter the two provisions
of the Constitution which excluded Indigenous peoples. The government
of the day did not support the alteration of the races power as late as
November 1965, when it put forward a bill which would see a referendum
solely to repeal section 127. In support of this Prime Minister Menzies
stated that the exclusion of Aborigines from section 51(26) - the races
powers - was not discriminatory and indeed provided 'protection against
discrimination by the Commonwealth Parliament'. It is perverse how this
comment has come to be true through the passage of the amendments to the
Native Title Act in 1998.

The Referendum is
often seen as 'citizenship maker', but as I have stated this is not true
- those reforms took place in the years before the referendum and in some
instances - such as in Queensland - did not take place until the 1970s.
In many ways this perception has arisen as Indigenous demands in the era
that is seen as 'post-1967' is that they are more vocal and focused more
squarely on the recognition of Indigenous rights - that is, on the recognition
of the distinct status of Indigenous peoples be it through land rights,
or calls for measures to protect and maintain culture.

The Referendum is
not such a clear point of delineation - such protest became more prominent
before this. From the Yirrkala bark petition and fight over mining in
Arnhem land from 1963 to the Wave Hill walkoff in 1966 to the freedom
ride of 1965. These events, right through to the creation of the tent
embassy on the lawns of Parliament House on 26 January 1972 all contributed
to a greater awareness of the desires of Indigenous peoples that extended
beyond the provision of basic citizenship entitlements.

These protests motivated
the passage of land rights legislation in the NT and racial discrimination
legislation at the federal level by the mid-1970s. They also motivated
a broader public movement for improving the treatment of Indigenous peoples
- perhaps the most relevant of these movements, from the non-Indigenous
side of things, was through the establishment of the Aboriginal Treaty
Commission in 1979. This Commission, which Farley Garlett spoke about
yesterday, published an ad in the National Times on 25 August 1979 titled
'We call for a treaty within Australia, between Australians'. It followed
the call for a treaty by the National Aboriginal Congress earlier that
year.

In their booklet,
Its coming yet…, the Aboriginal Treaty Commission stated that:
'We believe there is a deep and wide concern among other Australians that
our ownership of this land, as defined in the imported British law, should
still be based solely upon force, without any documentary recognition
of the rights or the quality and courage of those who were conquered.
It is time to right this wrong'.

As Bill Stanner,
a member of the Treaty Committee, had stated in 1973: 'if you study carefully
the words used in any one of our formal statements of policy towards (Indigenous
people) you will not find anywhere two things said simply and clearly.
The first is that we injured Aboriginal society and owe just recompense
to its living members. The second is that what we will do now for them
we will do in recognition of their natural rights as a distinct people,
not in expression of our sufferance of them, of our acceptance of them,
or of our acceptance of them if they will copy our ways'.

This is what the
call for a treaty was about then. And I would submit it is what it is
still about some 29 years after these words were spoken.

Accordingly, the
Treaty Committee called for a treaty to be negotiated which covered the
following issues:

• The protection
  of Aboriginal identity, languages, law and culture;
• National land
  rights legislation;
• Conditions governing
  mining and exploration of natural resources on Aboriginal land;
• Compensation for
  loss of traditional lands and for damage to those lands and traditional
  way of life; and
• Right of Aboriginals
  to control their own affairs and establish their own associations for
  this purpose.

Concern was also
expressed at the lack of priority given to Indigenous issues through minimal
expenditure by the federal government - often being at a level of about
0.5 of one percent of the federal budget.

The call for a treaty
also had its antecedents in a call for recognition of the fact of dispossession
and the provision of compensation by the first Aboriginal Senator, Neville
Bonner on 19 September 1974. The words that Senator Bonner spoke on that
day have great resonance today. He said:

I do not decry
the vast sums of money that have been spent by previous governments…
on indigenous affairs. I do not deny that the present government…
has instigated superbly beneficial programs to improve my fellow Aborigine's'
and Torres Strait Islanders' way of life within our broader Australian
community. But it is truly to no avail, dignitywise, when it is but
an allocating of money for a disadvantaged people because it if but
a form of charity. We, the indigenous people, for far too long have
been the recipients of charity - the charity of the government of the
day; charity, with its modern day connotations implying a handout mentality.

What I am seeking
is true and due entitlement for dispossession. Surely no one can deny
that the aborigines and Torres Strait Islanders were dispossessed of
what was theirs by right of inheritance…

He continued:

How do you value
human suffering, the loss of human dignity, the loss of culture, the
loss of a traditional way of life and the destruction of the Aboriginal
society?... You can put no monetary value on enforced disintegration.
I am asking for compensation for this loss of land - earth - our entire
being… I am asking for compensation for our enforced disintegration.

What Senator Bonner
proposed was for a set amount to be set aside from the annual budget to
become the true entitlement of the Indigenous peoples 'so that we may
recapture our dignity and our pride as human beings'. This motion passed
through the Senate six months after it had been proposed. Nothing more
came of it.

Similarly, the 'deep
and wide concern' of the broader community that had been identified by
the Aboriginal Treaty Committee about the history of dispossession of
Indigenous peoples did not lead to the irresistible campaign for a treaty
that they had hoped for. And discussion of a treaty soon went off the
national agenda until the signing of the Barunga statement by Prime Minister
Hawke nearly ten years later in 1988.

This statement committed
the government to:

• Work for a negotiated
  treaty with Aboriginal people;
• Provide the necessary
  support for Aboriginal people to carry out their own consultations and
  negotiations; and
• To stand ready
  to negotiate when the Aborigines presented their proposals to the government.

Yesterday we heard
Farley quote from Yothu Yindi's song about this. And I also understand
that there are sessions later in the conference that will examine the
subsequent Makarrata debate and so I won't go into any detail about it.
The end result was that somehow, by the end of the decade treaty had again
gone off the national agenda and been replaced by the seemingly less frightening
process of reconciliation in 1991.

In my view, it is
no surprise that in the decade of fundamental change that was the nineties,
treaty had again emerged at the end of the decade.

As I have noted in
my recent Social Justice Reports, the period beginning with the
reports of the Royal Commission into Aboriginal Deaths in Custody and
the reconciliation process, have been a significant period of transformation
in Australian history. From deaths in custody to the creation of ATSIC,
to Mabo, the rejection of terra nullius and recognition
of the ongoing connections of Indigenous cultures to land, to the Native
Title Act, Indigenous Land Fund and Social Justice Package proposals,
to the Bringing them home report, the foundational myths of settlement
and the reality of the history of Indigenous - non-Indigenous relations
have been exposed and recognised once and for all.

We have now reached
a point from which there is no turning back. Non-Indigenous Australians
have been exposed to a version of history which wasn't taught in school
and which has brought into question - in the most confronting way - the
fundamental basis of their relationships with Indigenous people. We cannot
under-estimate the significance or importance of this.

But such recognition
does not of itself solve the problems that have emerged throughout this
history. In short, this recognition has sent us into a no-man's land.
As I stated in my Social Justice Report 2000, it has exposed the
fundamental contradiction at the heart of Australian society. But what
have we done, as a society, about this contradiction?

It is my firm belief
that rather than acknowledging this contradiction, rather than acknowledging
the harm, as a society we have simply put it into the too-hard basket
with justifications about the level of 'uncertainty', the 'divisiveness'
and the cost of addressing the issue.

And governments have
gone to extraordinary, breathtaking lengths to maintain the status quo
and prevent the leakage of any power back to Indigenous peoples.

We have seen the
excision of the operation of Aboriginal heritage protection laws to allow
development to go ahead at Hindmarsh Island. In legal challenges to this
action the federal government conceded that it believed that it was feasible
that it could use the races power in the Constitution to introduce 'Nazi-style'
laws, rather than that power being solely for laws which are purely beneficial
in nature. Ultimately the Court did not resolve this issue, though it
hinted strongly that this may indeed be the case.

We have seen the
steadfast refusal of the federal government to comply with its human rights
obligations by enforcing compliance of states and territories with such
obligations by repealing racially discriminatory mandatory detention laws.

We have seen the
rejection of an holistic response to the stolen generations through the
partial implementation of the recommendations of Bringing them home, the
refusal to make reparation and the failure to engage in symbolic gestures
of apology.

We have seen marginal
improvements in the ratio of deaths in custody and increasing levels of
over-representation, despite the constant commitment of governments to
addressing these issues as matters of urgency.

And we have seen
the introduction of racially discriminatory amendments to native title
laws which have taken a system of checks and balances and re-oriented
it away from providing lasting opportunities for Indigenous peoples.

As I said in my Native
Title Report 2001, the native title system now aims to restrict rather
than maximise the benefits to Indigenous peoples:

As an embodiment
of social relations, the native title system places Indigenous interests
at a lower level than non-Indigenous interests, every time. As an embodiment
of economic relations, the native title system removes Indigenous people's
effective control over their only asset: exclusive rights to land and
sea country. As an embodiment of political relations, native title fails
to recognise traditional decision-making structures.

And I must say that
I do not share the optimism that has been voiced at this conference, and
in many other forums - including by parliamentary committees, that agreement
making processes under the Native Title Act offer a de facto treaty
making process. This is too simplistic and fundamentally ignores the point
that the native title system as structured is one that is not based on
equality and non-discrimination. It does not facilitate the full and effective
participation of Indigenous people. It is not a respectful system.

Only when the native
title system does provide real equality of opportunity - ranging from
adequate, and equitable, resourcing of native title representatives through
to the ability to negotiate over economic and development opportunities
through to processes which facilitate Indigenous governance rather than
imposed management structures - can it aim to fulfill this broader role.

But to return to
an issue I raised earlier, perhaps the greatest problem that we still
face is the response to the ongoing, entrenched disadvantage of Indigenous
people. So-called 'practical reconciliation' is a cruel illusion of equality,
which in fact amounts to a perpetuation of the marginalization and disadvantage
of the past.

I have explored these
issues in great detail in my Social Justice Report 2000, but to
give a brief example - human rights principles relating to non-discrimination
on the basis of race in the provision of economic, social and cultural
rights - such as the rights to an adequate standard of living, to a minimum
standard of health and education for example - provide that governments
must take steps towards the 'progressive realization' of such rights.
They must identify that a particular issue is one of great priority and
seek to address it with urgency and in such a way that the inequality
gap is progressively reduced, within the shortest possible timeframe.

The level of Indigenous
marginalization and disadvantage, and the enormous gap that exists compared
to the non-Indigenous population on all measures of economic and social
status indicate that addressing Indigenous marginalization is unquestionably
an issue of such magnitude. Yet where are solid commitments to reducing
the gap, within the shortest possible timeframe? What are the targets?
Where is the accountability?

Or as a member of
the Committee on the Elimination of Racial Discrimination put it, why
in a modern industrialized nation does less than 2% of the population
continue to suffer such dire economic circumstances?

The answer to each
of these questions suggests that current progress is unacceptable. There
needs to be a deeper appreciation, and an unqualified acceptance, of the
simple fact that Indigenous marginalization is historically derived and
the result of systemic racism in this country. It also requires an unqualified
commitment to redressing it and to achieving genuine equality with the
rest of society.

My Social Justice
Report 2000 provides 14 recommendations towards achieving this goal.
It also looks at the social cost approach proposed by the Canadian Royal
Commission into Aboriginal Peoples and the Closing the gaps approach
adopted by the New Zealand government to similar issues.

This is an issue
that is legitimately the subject of negotiation with and commitments to
Indigenous people by Australian governments. And it is a matter of fundamental
importance for treaty.

To conclude, I do
not make these comments lightly. Nothing less than strong leadership and
commitment by governments, and within our own communities, will do to
resolve the often desperate conditions experienced by our peoples. But
I want to draw together the two main themes of this presentation.

There are two types
of rights that must be recognized for Indigenous peoples to be able to
live equally in Australia. Those that are enjoyed by every Australian,
including Aboriginal people, commonly referred to as citizenship rights;
and those that are inherent to Indigenous people only.

Australia has had
almost a decade to establish a fair and just system to allow the benefits
of inherent rights to be enjoyed by Indigenous people. This has not eventuated.

Formal equality on
its own is not enough. As a tool of social change it is inadequate and,
indeed, entrenches the inequality that already exists. The problem is
not that Aboriginal people were given equal rights and treated like everyone
else. The problem is that these are the only rights that Aboriginal people
were given. This type of equality, formal equality, is not enough to restore
Aboriginal people to their rightful place as the first peoples of this
country. We need to go further with rights. We need to adopt a rights
approach that does have the capacity to transform social, economic and
political relations in Australia.

I have, in my previous
annual reports advocated two types of measures, based on rights, which
have this capacity. First, measures known as special measures, aimed at
achieving equality, rather than assuming it; and second, the full recognition
of Indigenous people's inherent rights, in particular native title.

A combined approach,
utilising these two types of rights, has not been adopted by any government
as a way of addressing the disadvantage it is designed to transform. When
an opportunity did arise to recognise inherent rights through native title
it was immediately encased in a legal armature that gave it no room to
deliver real outcomes. Its capacity to provide economic opportunities
for Indigenous people, to provide equal respect for Indigenous culture,
to provide governance structures for Aboriginal communities has been severely
limited through the NTA and the common law. The proposal to implement
special measures to overcome the destructive cultural, social and economic
impact of dispossession with the full participation and consent of Indigenous
people through the Social Justice Package was never pursued by
any government.

For the third time
in thirty years, Indigenous people have begun to look to a treaty as an
all-encompassing way of addressing the deep contradictions that exist
in our society. It will be difficult. But it will ultimately be easier,
and I believe less costly, than the maintenance of the status quo which
is clearly unsustainable. Let's get it right this time.

Thank you

Last
updated 28 June 2002