Under 18th century international law, Britain could only claim outright ownership of uninhabited territory. Obviously Australia was inhabited. Even the British could see that. But Britain assumed the inhabitants didn’t claim ownership of the land. They saw nomads living in unstructured societies with no recognisable civic or legal systems; who moved seemingly randomly over vast areas but didn’t claim any particular territory for themselves and didn’t manage the land. They designated our continent as terra nullius, the land of no-one; a territory no nation had yet claimed sovereignty over.
They were wrong. In 1788 there were hundreds of nations across Australia, each with their own languages, traditions, kinship systems and governance. They had trading routes and methods for navigating long distances. They modified, and intervened, in the environment to improve food sources and availability. They had kinship systems defining both personal and civic rights and responsibilities. Each group knew what was their country and what was the country of another group.
These were Australia’s first nations and they are the oldest surviving nations in the world.
The Mabo decision put an end to terra nullius. This was the first time Australia’s first nations were recognised by the Australian Commonwealth.
18th century international law also required that if territory was inhabited, Britain could either purchase land from the inhabitants or conquer it by force. However, conquest didn’t extinguish the inhabitants’ land rights. So both conquest and land purchase usually involved a treaty or agreement with the indigenous peoples of that territory.
Britain signed treaties across Polynesia, India, North America and Africa. But, it never signed a treaty with any of the first nations of Australia. This remains unfinished business.
Today recognition and reconciliation dominate Indigenous engagement. Neither will achieve anything unless we go back to the idea of a treaty. A treaty marks the end of a conflict, draws a line in history and allows people to move on based on a clean slate. A treaty brings about recognition and reconciliation.
But what do we mean when we talk about a treaty? In the past it has meant treaty between Indigenous people as a whole and the Australian Government. Work was done on this idea after the National Aboriginal Conference (NAC) called for a treaty in 1979. It didn’t get anywhere and don’t believe this idea will ever work. There isn’t anyone who speaks for Indigenous Australians as a single group.
Contrast NAC’s proposal for a treaty with the Yolngu bark petitions in 1963 which objected to mining leases being issued on Yolngu land without their consent and demanded recognition of their rights to land and sea. The bark petitions were signed by Yolngu clan leaders and presented on behalf of the Yolngu people to the Australian Government, nation to nation. The petitions didn’t claim to represent non-Yolngu people. And we all understand why. Yolngu speak for Yolngu country. Others speak for their country.
Think about it. Who speaks for your country?
To this day the Yolngu regard the bark petitions as speaking for them and their country. NAC’s call for a treaty represented no one but NAC. Even if the government had offered NAC a treaty to sign, no first nation would recognise it.
To have any meaning, a treaty has to be between Australia and each first nation of Australia, nation to nation.
I want to see the Australian Government offer each first nation a treaty recognising them as the traditional owners and custodians of their land and sea and as a first nation of Australia. As part of that agreement, their native title claims should be fast-tracked, accepted and concluded. The “continuous connection to the land” condition of native title claims should be dispensed with. Most people lost their continuous connection to country through no choice of their own. The first nations have been extensively studied and documented and by and large the country of each first nation is known. Individuals would have to establish membership of a first nation to participate in its native title settlement and governance system and be part of the treaty.
At the same time, each first nation who signs onto the treaty should formally recognise the nation of Australia and and be prepared to move on from a clean slate, as a part of Australia as a whole.
Each first nation should have a choice whether to sign a treaty or not, something which would be determined by a proper governance process involving members of that nation.
Some people have given up on the idea of a treaty and say it’s unrealistic. That’s probably true if you’re talking about one treaty between the Australian Government and Indigenous Australians as a whole. But the idea of treaties with first nations is very achievable because it’s only a few steps beyond what is happening anyway. Native title groups already enter into Indigenous Land Use Agreements with governments, organisations and/or others regarding their native title and other matters. Once registered, ILUAs bind all native title holders in the agreement area, even those who didn’t personally sign it. They are, in a sense, a form of treaty.
If Britain had followed the law, there would be treaties with each of the first nations of Australia. That is a wrong that needs to be righted.
Nyunggai Warren Mundine is Chairman and Managing Director of Nyungga Black Group
Treaties with Australia's First Nations are required to right the wrongs
3 December 2015
By Nyunggai Warren Mundine