I was sent an email from someone called Joanna Dudley, which said:
I saw your article about why you think that recognising Indigenous Australians in the preamble of the Constitution is pointless and at first I was really angry but then I saw that your solution of setting aside places like the Senate was a practical, rather than having a symbolic solution to issue. I think that your idea is unworkable and would never be seriously proposed but what do you think about a treaty.
(email address withheld)
What I initially found odd about this email was where it came from. I am a little bit hesitant to reveal even where this was because of reasons of confidentiality. However, it poses an interesting question which I'll now unpack.
As far as I can make out, a treaty at law is an agreement between two entities which come together to either end hostilities, or alternatively to set up some new state of alliance of agreement. Most of the famous treaties such as the Treaty of Versailles, or the Treaty of Paris end states of war; hence the reason why the Korean War hasn't technically ended. Other treaties such as the Treaty of Waitangi or the ANZUS Treaty, set up a new state of being where the various parties work together for a new state of mutual benefit.
This tends to make me think that in general, constitutions and replaceable rules are treaties of sorts. Constitutions set up the rules which govern the rule making process of countries, provinces and states and corporations, therefore I suggest that the preamble to the US Constitution explicitly spells out that the document is itself a treaty; which was entered into voluntarily and which is binding.
The biggest hurdle that I can see which would hinder a treaty being made with indigenous Australians is the question of who such a treaty would be made with. Unlike the Maori in New Zealand, Aboriginals and Torres Straight Islanders aren't a single group but a richly diverse collection of many people groups. Opponents would argue that the nation can't make a treaty to such a varied group of entities but that is rubbish. There are loads of treaties at international law which have been entered into by many countries. Something like the European Union started out as the European Coal and Steel Community and that had six signatories, and it gradually changed and grew to more than twenty. The United Nations has instruments like the Nuclear Non Proliferation Treaty and various rights declarations such as the Universal Declaration Of Human Rights and the Declaration Of The Rights Of The Child, which have been entered into by more than one hundred different parties.
Without a single unified organisation which represents all indigenous Australian people groups, a treaty would need to be entered into by the various people groups separately. Quite frankly, I don't see that as a problem at all. Most, if not all indigenous people groups, have some sort of internal organisation such as elders and they would be the ones who would sign the treaty on behalf of their people. I really don't see how this is different in spirit to covenant arrangements which might have been made between the various groups themselves.
A grand treaty made with the first peoples of Australia might have several hundred signatories on it, from all over the country and if anything, that's a symbolic act where they'd recognise each other as well as the "big mob".
Of course the whole point of a treaty is to spell out what the various parties involved intend to do. The Australian Government as a thing hasn't really had a set of principles to work with in relation to indigenous people and as a result has tended to act in piecemeal fashion and often in an unprincipled fashion. A treaty would actually mean that the Australian Government would have to face up to the fact that the country was stolen by the cunning use of flags, and then had government and nationhood imposed upon people without their say so. No doubt there will be some commentators who will argue that indigenous Australians already receive many benefits but that is to deny the fact that they are being spoken to; rather than being spoken for.
On the other hand, although a treaty would recognise the original invasion of this great southern land, it then asks the question of indigenous peoples of how the intend to move forward. Not only would a treaty require the nation to recognise indigenous peoples, it would also require them to recognise the nation. That means that although an invasion did happen in the past, those sorts of moral claims might need to be set aside. The nation of Australia in 2016 is made up of precisely zero people who stole the land by force and all direct memories of those people has also been extinguished by the march of history. At what point can you continue to hold people accountable for the acts of people who they have never even met? Furthermore, does it even make moral sense to continue to accuse someone if through the act of a treaty, they would be trying to make good upon the actions of the past?
As with any important document like this, the puzzle lies in solving the details and so I imagine that before there was a final treaty to be signed off on, there would be a series of conventions which would undertake precisely that task. Since a constitution is a treaty of sorts between "the people" and themselves, the working out of a treaty with the first peoples of Australia would probably follow similar lines of thinking, argument, discovery and agreement.
No doubt there would be commentators who think that a treaty is unnecessary but I suspect that all of those people live in places of privilege, have never known hardship and certainly do not know what it is like to be someone who is marginalised. I'm just going to come out and accuse all of them of racism. Polite racism wrapped in the veil of conservatism is still racism; it's just a little bit more insidious; that's all.
As an Australian who has visited the New Zealand Parliament and heard references to "the spirit of Waitangi", that among other things, really makes me ashamed of this country. I think that the guiding principle of "peace, order and good government" as spelled out in Section 51 of our own Constitution, should be instructive in this case and before we even think about the idea of a republic, we should do a lot of growing up first.
I don't know exactly what a treaty between the first people's of Australia and the nation would look like but I do know that it would look better than the 228 years of neglect and dereliction that we've given to the issue so far.