What might a treaty look like?

A letter published in today’s Northern Territory News by David Mitchell of Nhulunbuy encapsulates several of the common misconceptions that many Territorians have about the possibility of a treaty or treaties between the Northern Territory Government and Aboriginal clans. Several commenters to a recent article at The Summit Facebook page had similar uncertainties, but Mr Mitchell’s letter is the most convenient to quote:

Mr Guyula and his mostly Balanda entourage only seem to be interested in getting a treaty and tribal law both of which are impossible. Any government that cedes sovereignty of any part of Australia, by way of a treaty, to any group whatsoever will fall immediately that the implications dawn on the wider community.

Any “treaty” that Mr Guyula manages to negotiate, without sovereignty, won’t be a treaty it will just be another money wasting, time wasting, backslapping gammon piece of paper. It will do nothing for jobs, poverty and disadvantage in his electorate.

I want a treaty but I know that we are never going to get a real one so why waste valuable effort on a gammon one? Let’s get some real jobs here instead so our kids can learn and earn.

Ceding sovereignty

It may well be that a good part of the confusion arises from the very use of the word “treaty” in this context. That authoritative source Wikipedia defines treaty as follows:

treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations.

There is a reasonable argument that we shouldn’t even use the word “treaty” in relation to an agreement involving the Northern Territory Government, because it is not a sovereign state. The Northern Territory is a territory of the Commonwealth of Australia and has itself only been granted limited self-government by the Australian Parliament, which could revoke that self-government at any time and can override any Territory law by federal legislation (as it did with our euthanasia legislation back in the 1990s, not to mention the Northern Territory Emergency Response Act). Because the Northern Territory is not a sovereign state itself, it cannot “cede” sovereignty to anyone else.

Nor do Aboriginal clans (not even all Aboriginal people collectively) now possess any form of sovereignty, probably not in international law and certainly not under Australian law.  High Court Chief Justice Sir Anthony Mason comprehensively debunked that claim in in Coe v The Commonwealth in 1993, citing with approval observations by Gibbs J in 1979 in earlier litigation commenced by Coe:

The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.

Accordingly, an agreement between the Northern Territory government and Aboriginal clans simply can’t be a treaty in an international law sense. We might be better off using a word like “compact” or simply “agreement” because that is what is being talked about. However, having explained the confusion I think I will keep using the word treaty anyway because it’s convenient.

By an obscure process of logic, Mr Mitchell appears to be arguing that the ceding of sovereignty by any Australian government would be absolutely outrageous (and therefore impossible), but that any form of treaty that does not involve the ceding of sovereignty would be completely pointless and should not be bothered about. Why that should be the case is not explained.

What sort of agreement?

In fact the Territory government and Aboriginal people could make an agreement/treaty dealing with any subjects they choose as long as those subjects are within their respective legal powers.

It is certainly true that any agreement the Territory government enters into (with anyone at all) could be overridden at any time by federal legislation, but that is true of any legislative or executive action of the Territory government. That is a consequence of being a Commonwealth territory. The Territory government would also need express Commonwealth approval for any agreement specifically affecting rights to Aboriginal land. Under the current Coalition federal government that approval is likely to prove problematic.

As for Aboriginal clans, the High Court’s seminal Mabo decision held that their rights are capable of legal recognition under Australian common law, and they can and do hold title to their traditional lands. Aboriginal clans/traditional owners are also recognised and have legally enforceable rights under a range of federal and Territory legislation, most notably the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

Management and funding of local communities

The Northern Territory government and Aboriginal clans could certainly enter into a treaty or treaties which recognised their rights to manage their own communities, rights they did actually enjoy until 2007 when they were removed by the former ALP government’s “super shires” legislation. A treaty could also provide an assured share of government funding for community management.

Wider governance structures

The parties could also make agreements about amateur fishermen’s access to tidal waters adjacent to Aboriginal land (which traditional owners control as a result of the High Court’s Blue Mud Bay decision).

The NT government and Aboriginal clans could also agree on processes to create clearer relationships, reciprocal rights and duties, and dispute resolution mechanisms between government, land councils and traditional owners.  That would have direct benefits for all parties, not to mention businesses attempting to negotiate agreements for ventures and developments on Aboriginal land.  For a start, that sort of agreement would unquestionably create jobs for our kids and ourselves, contrary to what Mr Mitchell asserts.

One of the biggest problems about NT self-government is that very little thought was given back in 1978 to what legal and institutional relationships needed to exist between the new government, land councils and traditional owners to allow for a smoothly functioning polity. Those relationships remain confused and ill-defined. There are effectively no structures or institutions tying government, land councils and traditional owners together in a defined or workable manner, even though Aboriginal Territorians own fifty percent of the Northern Territory and can largely prevent development on that land if they wish.

Yet each of them have significant real world authority over the same land mass, and therefore real roles in important decisions made about land use, tenure and development  on half of the Territory’s land, which in turn comprises twenty percent of Australia’s land mass. In constitutional terms the Territory actually possesses an evolved but largely unplanned system of separation of powers between government, land councils and traditional owners (customary law authority structures) which isn’t constitutionally or legislatively defined, and isn’t clearly understood by any of the participants. It’s hardly surprising that it doesn’t work very well.

The lack of carefully designed and broadly agreed governance structures means that negotiating business and development deals on Aboriginal land is much more difficult, time-consuming and expensive than elsewhere.  As a direct result much less economic activity takes place.

Reconciling the Towers of Power

The Territory government and land councils represent competing but largely unreconciled major sources of power over the same land (half of the Territory).  The two central pieces of “constitutional” federal legislation which establish them (the Northern Territory (Self-Government Act 1978 and Aboriginal Land Rights (Northern Territory) Act 1976) contain only rudimentary provisions spelling out how those Towers of Power should interact with each other.

But the relationship between land councils and the traditional owners they represent/manage is also largely undefined. Aboriginal traditional owners can only exercise power over their own land via the agency of the land councils, whether they like it or not, and quite a few of them don’t. Exactly which TOs the land councils consult,whose wishes they regard as binding, and to whom they distribute mining royalties and in what proportions, are all quite opaque to most traditional owners.

Some years ago the land councils managed to convince the federal government that they should have an unchecked statutory discretion as to whether they maintain a register setting out who they regard as the traditional owners of a given area of land, and it appears they mostly choose not to do so. That gives them vast and largely unchecked, unaccountable and potentially arbitrary power. I’m not suggesting land councils don’t usually make good faith attempts to consult and implement the wishes of the right people. But the lack of transparency and clear accountability mechanisms is a big problem that we can’t afford to keep ignoring.

Groups of traditional owners regularly attempt to move away from the big land councils and form their own “breakaway” land councils because they don’t believe the existing ones are representing their interests. However, despite the fact that the Land Rights Act provides for the formation of new land councils, successive federal governments have chosen to ignore those demands. It’s more convenient for governments only to deal with the large land council bureaucracies and leave to them the messy job of reconciling often fractious disputes between traditional owner groups about land tenure and development issues. Even though the land councils’ efforts may not accord with any recognisable version of democratic deliberation and may even play fast and loose with customary law authority structures, governments prefer not to disturb this ill-designed status quo. The land councils are the Mussolini of modern Territory politics. Many liberal democrats chose to embrace him for pragmatic reasons because he made the trains run on time, but they preferred not to look at how he achieved that outcome.

Poorly designed governance structures impact jobs and growth directly and in a major way. It’s not that Aboriginal Territorians don’t want jobs or development for themselves or their kids, it’s just that they also insist on maintaining their land, law, language and culture.  Those aims aren’t incompatible, but they require not only mutual respect and listening to each other, but also suitable governance structures, institutions and clear rules on which we can all agree. The vehicle of a treaty or treaties is the most obvious and perhaps only one that can achieve those aims. For anyone who truly wants more jobs, growth and development for the Territory, kneejerk opposition to even the possibility of a treaty is just not sensible.

Rights to maintain customary law, language and culture

Treaties could also provide enforceable guarantees of rights to maintain customary law, language and culture. Mr Mitchell’s letter exhibits a combination of confusion and prejudice on those questions as well:

Women will never go back to how they were treated under tribal law either.

But Mark Guyula MLA, Reverend Djiniyini Gondarra OAM and Yolngu Nations Assembly do not advocate practices like payback violence or promised marriages of old men to under-aged girls. Those things are not part of customary law as it is practised today at least in most communities (even though a few people may still try to act in that way). Contemporary customary law (which actually changes and evolves over time just as Anglo-Saxon law does, despite the label “customary”) is largely compatible with the Australian legal system. It could and to an extent already does function smoothly within that system. This idea isn’t unprecedented or even unusual. For example, religious (canon) law and military law have always operated within the framework of general Australian law, as have the laws applied by numerous sporting codes.

Of course, they only operate to the extent they are compatible with general Australian law.  Similarly, any treaty with Aboriginal people that an Australian government could conceivably sign would need to make it expressly clear that customary law is valid only to the extent that it is consistent with the fundamental protections of Australian criminal law and our obligations in international humanitarian law. Thoughtful Aboriginal leaders like Gondarra and Guyula are not arguing otherwise. Exaggerated claims about “tribal law” are just a rhetorical straw man.

Entrenching treaty rights

There are various ways treaty rights could be assured (though not against Commonwealth interference while the Territory isn’t a state). They include a charter of rights enacting treaty rights and entrenched in the Northern Territory (Self-Government Act 1978 (Cth). Alternatively the treaty provisions could be enacted by Territory legislation which is “double entrenched” by providing for a parliamentary super-majority (say 70%) before any treaty provision could be amended.  Another option would be an agreed number of dedicated Aboriginal seats in the NT Legislative Assembly (as New Zealand provides for Maoris). The latter would also need federal legislation (amending the Self-Government Act). Each of those options would no doubt provoke active community debate, and would be targets for opponents intent on sowing division and confusion. However, they’re all constitutionally possible and all have advantages.

Conclusion

We might or might not end up with a treaty or treaties in the Territory. As Mr Mitchell’s letter and some of the comments at The Summit Facebook page starkly demonstrate, it is a topic that provokes passionate reactions and is very prone to misunderstanding and misrepresentation, often caused by genuine confusion and lack of familiarity with what a treaty might actually involve. Australian mostly aren’t taught civics in school in any meaningful way, and the concept of a treaty between government and Indigenous Australians has never really been widely discussed. It’s time that changed, especially in the Northern Territory. If we don’t at least discuss the subject in a civil and careful manner, the Territory will never achieve its full economic or social potential. Nurturing that sort of discussion is one of the key objectives of The Summit.

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