A common argument which is thrown up against the idea of a treaty with Aboriginal and Torres Straight Islands peoples is that the idea itself is invalid because a sovereign nation can only make treaties with other sovereign nations. I think that this is bunk.
As it is usually understood at law, a treaty is an agreement between two entities which are legally binding on both of them. In the case of treaties between nation states, treaties are most often made at the end of hostilities or at the beginnings of other formal endeavours. The Treaty Of Paris is an example of the former and the Treaty Of Rome an example of the latter. As well as peace treaties which end wars, defensive and other military treaties commit nations to the aid of other nations in the event that they find themselves in conflict. Treaties like NATO and ANZUS are examples of this.
It is worth remembering that in New Zealand, the Treaty Of Waitangi came about because the Maori collectively rose up against the British in open hostility; which resulted in armed conflict. What's different about the first peoples of Australia is that they were not one people, nor did they rise as a single entity against an invading foe, nor did they have a common language. Had circumstances been different and they had had a common language, then a treaty might have arisen. As it was, at one of the Constitutional Conventions, one of the reasons cited as to why New Zealand would eventually not become the seventh state of Australia is that the then Governor Of New Zealand feared an Aboriginal uprising and didn't want a war in Australia in the same way that it had occurred in New Zealand.
They were many, and the white settlers were few, and when our hearts were not softened by the missionary, we were controlled by the thought of the Maoris' numbers, and of their rifles. Therefore we recognised their right to their own land, and instead of confiscating it we admitted their claim to its full possession, administration, and disposal.
- Hon Captain William Russell, Constitutional Convention (1890)
I don't know if this is a tacit admission that there was or could have been a state of war which existed between white people and the first peoples of the land but it does at least indicate one of the reasons why there is no existing treaty. It could be argued that just like the Korean War which hasn't officially come to a conclusion and therefore no peace treaty can exist, that the initial conflict between the Commonwealth and the first peoples of the land hasn't been officially concluded; if that's true then it makes sense that there's no treaty. I can only assume that the people who are opposed to the writing of a treaty must either be in denial that a state of conflict and injury exists or perhaps more troubling, that they like the idea of being at war with the first peoples of the land due to unadmitted issues of racism.
What I reject though is the underlying motive which would drive someone to try and halt discussion at that point. What this says in principle is that the nation should be held accountable or responsible for any past injustices and injuries which may have been called and that there endeth the matter. The argument that no treaty with first people should be made, is basically a refusal to admit that actions have consequences and is in my opinion, little more than repackaged racism which has been wrapped in a thin layer of legalese.
If this be true and people want to argue this in the theatre of legal language, then the best response is to couch a counter proposal in a different set of legal language. If you can't get in through the door, then climb in through the window.
The suggestion that entities such as governments can not enter into agreements and contracts with things that aren't governments, is bunk. Governments regularly enter into things like leasing agreements, contracts with businesses to build things like infrastructure, contracts with utility companies, as well as with individuals in the form of labour contracts which might be negotiated with the aid of unions which themselves might be free associations. The suggestion that governments can not enter into legally binding contracts and agreements with smaller entities including to the most atomic of entities, individuals, is repeatedly and demonstrably untrue.
Something that I've found deliciously hilarious while reading through the series of arguments which created the Commonwealth Of Australia, through the instrument of the Constitution, is that the idea of an agreement is continually reinforced. Not only does the preamble mention that the Constitution itself is an agreement between the people of the six states but the word that keeps on repeating to describe the nature of the thing which is to be created is the word "federal". The word "federal" is derived from the Latin fœdus, which was an agreement between the Roman state and various vassals, clients and individuals. When the word was reapplied for use in the setting up of nations such as the United States, Switzerland, Canada and Germany, all of which were seen as different sorts of models of federation, they all referred to an agreement between either the various states which founded them or perhaps most famously in the case of the United States, "We the people". Logically if an agreement can arise between things which aren't nations as we understand them, or as a mass agreement between the people themselves, which literally create the nation state out of nothing, then the idea that a nation state can not enter into an agreement with various people, is in my opinion bunk.
I don't claim to know what sort of thing at law that such an agreement might take but I do know that there are brilliant enough legal minds in Australia who can work this out. The agreement might take the form of a compact, which is similar to the arrangements between entities like Palau, Guam and the Federated States of Micronesia have with the United States. They have a Compact of Free Association which is not a treaty because they aren't really sovereign states but they're not really independent either.
Whether the instrument is called a treaty, a compact, a covenant or some other legal agreement is more or less irrelevant to me; what is important is what it intends to do and how the various people groups join it. The argument that the various Aboriginal and Torres Straight Island groups are not a single cohesive bloc and therefore any attempt to begin a multi party agreement is futile, is in my opinion totally bunk.
The European Coal and Steel Union developed into the European Economic Community and then later the European Union proper. Countries have been joining it and it has changed and gradually grown in import. A theoretical agreement between the Commonwealth Of Australia and the first peoples of the land, might take the form of something similar as each individual people group considered the significance of it to them. It also need not be static in the way that say existing treaties have a tendency to be but be a living document as the various groups and the Commonwealth think about how they relate to each other.
Probably English would be the default language of said document but I think that it would be singularly excellent it as each people group ratified it, that copies should be issued in each new language and some gallery kept, preferably within Parliament House itself, of all the copies in the various languages.
Okay, the thing might not be a treaty but that surely is only a matter of legal pedantry. The agreement, whatever you want to call it, should be the end goal and that surely is what's important. The document isn't even the most important thing here either. What is of greatest import is having the Commonwealth Of Australia as an entity, take responsibility for its actions and make a plan for action and peace with its first peoples. The hardest part of this process is making the Commonwealth realise that it has acted beastly in the past and that it needs to take action as a result.
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