The Uluru Statement, released late last week after three days of apparently tortuous negotiation, is the latest call from Aboriginal Australia to the dominant settler society for a re-setting of fundamental national relationships. It has been hailed as an emotional and heartfelt expression of ambition and determination of this country’s true owners that sets out, in too-vague terms for mine, three bold claims, firstly to re-assert long-held claims to sovereignty, the need for a voice in—or near to—the seat of parliamentary power, and moves to a Makarrata, or treaty (or multiple treaties), between Aboriginal ‘nations’ and the Federal government.

Much of the Uluru Statement consists of emotional—albeit noble—claims, motherhood statements and flowery language that no doubt resonated as spoken words to the hundreds of delegates at Yulara, mentally and physically exhausted after three days in the, albeit air-conditioned, desert but that on paper render as little more that mawky and poorly drafted rhetoric. A tepid call to arms, the Uluru Statement has all the revolutionary fervour of a cup of cold tea.

Do the 444 words of the statement enunciate a clear statement of intent sufficient to firstly, convince the lumpen masses that these are ‘good things’ that should be pursued, and secondly—more importantly—will, or can, the too-polite-by-half requests resonate beyond the turbulent echo-chamber of Aboriginal politics and be adopted by the political mainstream who will be charged with it’s carriage through the political process?

Early indications are that the Uluru Statement will, after a brief, delirious honeymoon period, fizzle away into interminable talk-festing, rancour within and without the Aboriginal milieu, the dead zone of administrative and bureaucratic torpor, populist confusion (read resistance) and political chaos and opportunism that has characterised previous attempts at resolution between pan-Aboriginal Australia and settler society.

We won’t be seeing a Treaty—or makarrata, call it what you will—anytime soon. Those who’ll oppose the implementation of the Uluru Statement will likely, as will its supporters, fail to appreciate the oft-paraphrased words of Spanish-American philosopher George Santayana that those who cannot remember the past are condemned to repeat it.

It was a fatal error in the first settlement of Van Diemen’s Land, that a treaty was not entered into with the natives … had they received some compensation on the territory they surrendered, no matter how trifling, and had adequate laws been from the very first introduced and enforced for their protection, His Majesty’s Government would have acquired a valuable possession without the injurious consequences which have followed our occupation and which must forever remain a stain upon the colonisation of Van Diemen’s Land. Governor Arthur, 24 September 1832.

As the Kungarakan/Gurindji historian Sue Stanton* has pointed out, Australians have long been bemoaning the lack of a treaty or appropriate settlement between the original owners of this country and the settler society that pushed them aside. In words that ring as true now as when Stanton wrote them in 2006:

Australia has, over time, been presented with the challenge to right the wrongs of the past and allow itself to move to a new negotiating level, but it refuses to.

Not much of note happened with the development of a treaty until 1975 when the Australian Senate passed a resolution by Liberal Senator (and the first Aboriginal person elected to Federal Parliament) Neville Bonner which urged the Australian Government to at least acknowledge prior ownership of Australia by Aboriginal people.

Four years later, following the lead of Dr H C “Nugget”Coombs and others clustered around the National Aboriginal Conference (the NAC), the establishment of the Aboriginal Treaty Committee (the ATC) represented the first substantial push for appropriate recognition of the historical occupation of Australia by Aboriginal people. As documented in Judith Wright’s book We Call for a Treaty, the committee stumbled from pillar to difficult political post on goodwill and a shoestring budget before dissolving more with a whimper than a constitutional bang.

In Chapter 6, Treaty or Makarrata? Wright, reflecting on the unwelcome response to the word ‘treaty’ by some in the legal profession and the uncertainty about the implications wrapped up in that word, noted that for the committee:

The question of what the final agreement might be called did not concern us much; what mattered was that it should be seen by the dominant society as binding, in the same way as any international agreement, on the Commonwealth.

Broader debate about the merits of a treaty followed the publication of the ATC’s manifesto in the National Times in August 1979. This debate included pushback from (some) Aboriginal activists, who were concerned that the Fraser government might conclude an agreement without proper consultation with Aboriginal people across the country.

Malcolm Fraser—who would now be regarded as being from well to the left of the Liberal Party—was under pressure for the apparent inconsistency between his outspoken views on the future of the racist regimes in South Africa and Zimbabwe and his government’s approach to domestic race issues. Surprisingly for some he announced that he would be prepared to discuss the “concept of a treaty” with representatives of the NAC.

The publication of a second advertisement in November 1979 was followed by a response from Senator Fred Chaney, then Minister for Aboriginal Affairs, indicating that the government would provide funding for the NAC to conduct an 18 month consultation with Aboriginal people across the country. But, echoing earlier concerns about the use of the ‘T’ word, Chaney advised that the proposed agreement be called a ‘Makarrata’ instead.

Around this time the ATC published It’s Coming Yet, a modest volume by ATC member Stewart Harris written, as one reviewer has noted, “when confidence was high that a Treaty would soon be drafted and signed … It remains as valid today as then – representing the history of the black-white struggle, the years of destruction & despair, days of revival and recognition.”

The book sold well and drew good reviews, including from legal academics. But while there was apparent goodwill from some sections of the public, the media and politics—both Labor and the Democrats had indicated what  Judith Wright described as “a surprising degree of acceptance of the treaty idea”—there was uncertainty about support from the Commonwealth Government.

The Commonwealth’s views were clarified by Attorney-General Senator Peter Durack in July 1980. As Wright notes, the Attorney’s views on the legal possibilities inherent in a treaty hinged on the use of the word itself.

The word, wrote the Attorney-General, was inapplicable. He quoted the opinion in Coe [Coe v Commonwealth (1979) 24 ALR 118] that the Aborigines did not constitute a ‘domestic nation’. Unless there were explicit provisions against any agreement made being regarded as one between the Australian community and a separate community, he feared there would be a risk that the agreement accorded a status to which the Aborigines could refer in a claim to the right of self-determination as a ‘nation.’ … ‘Compensation’ could also be provided under Commonwealth law for the treatment of Aborigines in the past; but the word would have to be used in a colloquial sense, not a legal sense … the ‘Makarrata’ was therefore already, from a point of view of Aboriginal demands for recognition and compensation, something of a dead letter.

The ATC’s pleas for help towards the development of a treaty fell on deaf ears, mired in political caution and a lack of broad public support. As Sue Stanton notes, a few years later, the 1983 report by the Senate Standing Committee on Constitutional and Legal Affairs Two Hundred Years Later rejected:

… suggestions of a treaty, adopting the old argument that Indigenous nations of Australia, not being sovereign entities, could not enter into treaty negotiations with the Commonwealth … Still this Committee called for a ‘compact’ which possibly could eventually be inserted into the Australian Constitution by way of referendum.

It took another five years for the notion of a treaty to re-emerge on the broader political landscape but Prime Minister Bob Hawke’s commitment to a treaty at the Barunga Festival in the NT in June 1988 was half-promise, half cautious rhetoric.

Responding to the proposals put forward by Northern Territory traditional owners in the Barunga Statement that included a call for the Commonwealth Parliament to, among other things: ” … negotiate with us a Treaty recognising our prior ownership, continued occupation and sovereignty and affirming our human rights and freedom,” Hawke said that “there shall be a treaty negotiated between Aboriginal people and the Government on behalf of all the people of Australia.”

By 1991, the notion of a treaty had been subsumed into broader issues of reconciliation. In a Cabinet Submission from December 1990 then Minister for Aboriginal Affairs Robert Tickner proposed the establishment of a Council for Aboriginal Reconciliation, responding to an August 1999 proposal for a Submission ‘outlining the strategy for developing the treaty or compact.’

Tickner’s Cabinet Submission noted the need for a reconciliation process:

… arises through Aboriginal Australians having been dispossessed of their land by the early European settlers without any formal treaty having been negotiated … Although there has been growing pressure during the past two decades to promote a compact or treaty, no real progress has been made in recent times principally due to hostile Opposition response … In light of the Coalition’s position, the Government needs to continue to make clear that it is not pursuing a ‘treaty’ in the sense of a negotiated settlement between separate and autonomous nations. Without backing away from the possibility of an instrument, it should emphasis the process of reconciliation … The complex and controversial question of the eventual format and parameters of any instrument should be put aside to focus on the process.

Tickner’s assessment of the nation’s appetite for a treaty echoed the words of Prime Minister Bob Hawke’s May 1990 letter to John Hewson, Leader of the Opposition that referred to Hawke’s earlier commitment to a treaty, noting that he was not “necessarily wedded to the term ‘treaty’; others have proposed a ‘Makarratta’, or ‘compact’, as a form of instrument of reconciliation.

Hawke then rings the death-knell that any treaty be a substantive agreement between parties on an equal footing:

I understand that in the recent past the Coalition, on the basis of an assumption that the nature of a ‘treaty’ involves an agreement between two nations, has stated its opposition to such a cause. I assure you that it has never been in the Government’s mind that the reconciliation process lead to such an outcome.

It is fair to say that the Hawke’s response to the Barunga Statement represents the high point of prospects of development towards a treaty between Aboriginal Australia and the settler society and that his governments did more to advance Aboriginal interests than most before or since. But in three short years the Hawke government had walked away from the notion of a treaty, in whatever form.

Speaking to a crowd that included Aboriginal leaders Wenten Rubuntja, Galarrwuy Yunupingu and Robert Lee on the occasion of the hanging of the Barunga Statement in Parliament House in December 1991, Hawke opened with a ‘prophetic’ teaser. But he wasn’t talking about his promise to negotiate a treaty, the prospect for which had evaporated in rancour and disappointment, but that his last official act as Prime Minister would be to hang the Barunga Statement in Parliament House.

It is an irony beyond measure that Tony Abbott, arguably our worst Prime Minister of recent years, presented Aboriginal Australia with the best opportunity for meaningful recognition of their interests. Abbott, despite his propensity for stunts and stumbles, was a political conservative who understood and engaged with Aboriginal Australia better than any recent Australian leader.

That is modest praise indeed but if Abbott had been in power last Friday when the Uluru Statement was delivered he would have in all likelihood made a better response than the equivocation from our current leaders. Neither Malcolm Turnbull or Bill Shorten have the wit, interest or political savvy to get a treaty—or the other proposals in the Uluru Statement—past their respective right wings, who as my colleague Bernard Keane stressed in Crikey yesterday will—with their fellow-travellers—be more than willing to employ dishonesty and deceit to push back on any proposal for a treaty.

Regardless of the dishonesty of that coming campaign and of the worthiness of the Uluru Statement’s objectives, Australian’s won’t be voting in favour of a treaty, legislated representation or sovereignty anytime soon. Not in my lifetime at least.

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