A treaty with first Australians is divisive and dangerous

Bookmark and Share Legal Rights Project | Simon Breheny
The Australian 8th July, 2016

The concept of a treaty with Aboriginal and Torres Strait Islander peoples is illogical and divisive. The current push for such a document is misguided, and should be abandoned.

It's difficult to think of another policy idea that has taken hold with so many people with so little thought.

Bill Shorten backed the idea on national television. University academics have endorsed a treaty. Newspapers have editorialised welcoming the concept. The striking thing about the discussion is that there's so much of it but so little actual engagement with what it means that it has failed to grasp the fact that the most basic requirements for a treaty simply do not exist.

This is symbolism over substance at its absolute worst. Promising better prospects for some of Australia's least well off without having any evidence that this proposal could achieve such a future is wicked. But the idea of a treaty does not just hold out false hope. It is also a highly divisive and dangerous idea.

You do not have to be an expert on the Vienna Convention on the Law of Treaties to understand that a government entering into a treaty with a group of its own citizens is legally nonsensical. Treaties are legal documents entered into by two or more sovereign states.

Individuals or groups of individuals simply do not have capacity to enter into this form of legal arrangement. Capacity is a legal term that many will be familiar with in the context of contract law. It is the legal concept which dictates that children are unable to sign a valid contract.

But capacity also has application in the area of treaty law because only sovereign states can enter into treaties. An individual may sign a treaty but only on behalf of a sovereign entity.

In the context of a potential treaty with Aboriginal and Torres Strait Islanders, there is no second sovereign state. We are all Australians - indigenous and non-indigenous.

The only way the concept of a treaty makes any sense is if it is coupled with secession. Although this part of the equation is not often talked about it was hinted at by an audience member when the Opposition Leader was on ABC's Q&A before the election.

An Aboriginal sovereign state is not an idea that will gain much traction in Australia. Part of the reason for this is that Australians recognise that many of the problems faced by Aboriginal and Torres Strait Islanders have been caused by treating Australia's indigenous population as separate from the rest of us. Rather than addressing Aboriginals as individuals, many policies have lumped them together and tried to apply one-size-fits-all solutions. No idea is more offensive to our egalitarian instincts than dividing Australia according to race or ethnicity.

Even setting aside the sovereignty question for the sake of the argument gets us no closer to resolving all the problems associated with this ill-considered proposal. Who speaks on behalf of Aboriginal people? Even if such a person or a group of people could be identified it is still unclear whether a single treaty covering all indigenous Australians would be sufficient.

Before European settlement in Australia there were a large number of Aboriginal nations - perhaps as many as 700 - that occupied the land mass now known as Australia. A not unreasonable question is whether separate treaties are required for each nation still in existence today.

These are the initial hurdles proponents must clear before we get to the central question at issue with any treaty: what goes in it?

Much of the discussion about the content of a potential treaty has involved a ramping up of existing indigenous policy areas - land rights, self-determination, and language and cultural issues. Apart from lacking any creativity, this approach fails to recognise that past policies have not achieved the outcomes they set out to.

Moreover, every policy area proposed as content to any treaty will be debated just as passionately as indigenous policies are debated today. A treaty doesn't circumvent the democratic process.

Advocates for a treaty are attempting to solve a complex conceptual problem with an even more complex conceptual mechanism. It's a recipe for failure.

As demonstrated here, a treaty makes no conceptual sense. The very idea is legally unsound. But there is an even more fundamental reason for abandoning the pursuit of a treaty: it seeks to divide Australia.

Both a treaty and constitutional recognition of Aboriginal and Torres Strait Islanders will be rejected for the same reason: they would entrench division, rather than seeking to unify us. Policies that separate one group of Australians from another are not ideas that represent the country that Australia is and should continue to aspire to be.