Supporters of the Uluru Statement insist that the reform package has a strict sequence which places constitutional enshrinement of the Voice as the first step, and treaties to come after.

The Greens – (seemingly led on this issue by Senator Lidia Thorpe) have been critisised as backflipping and against the Uluru Statement mandate by suggesting the re-ordering of the sequence to “Treaty First”, or – Treaty before Constitutional change.

The issue here is that Uluru Statement supporters are not clearly articulating the full reasons why the Voice must come first. Advocates are being dishonest by claiming that the reason for sequencing the “Voice” first is that a protected voice is needed for political leverage. They are not telling us the real reason – that “Constitutional Reform” is a technical prerequisite for “modern treaties”.

At the root of this issue, is the difference between “modern treaties” and historical, or first contact treaties. Structurally they are very different instruments. The Uluru Statement calls for a modern treaty process.

While I don’t want to put words in Senator Thorpe’s mouth, my understanding is that she (on behalf of her grassroots following) is calling for what is structurally a historical treaty, even though it is done in modern times.

This blog post I am going to present what I think the structural difference is between modern treaties and historical treaties.

Some observations/clues

I have never seen a decent explanation on the difference between historical and modern treaties, but there is a trail of clues.

• The distinction between modern and historical treaties is only ever made in a colonial context. For example, no one calls the Treaty of Versailles as a historical treaty; even though it is of historical importance. It is simply a Treaty.

• Normally a “Treaty” is understood as being a formal, binding agreement between actors in International law. Are peoples under settler-colonial subjugation actors in international law? If they are, it implies they are capable of making a Treaty.

• A common justification why Modern treaties are needed is because of out-of-date content in historical treaties. For example in Canada there are historical treaties that pay some First Nation individuals an annuity of $4 per year. This would have been a decent amount at one time, but because of inflation it will not pay for a shopping trip. Now it has more symbolic value than practical value. Modern treaties reflect modern times and deal with content that is more practical for today.

• Modern treaties are better because of the unenforceability of historical treaties, and the colonisers historical lack of ability or will to uphold their side of the agreement. Note however, colonising States are today much better at upholding these antiquated treaties than in the past. There seems to have been a shift from historical treaties not being worth the paper they are written on to being of fundamental importance to the colonial nation State’s legitimacy. What promoted this shift in perception when treaties remain unenforceable? Why would colonial states wish to move from unenforceable historical treaties to those enforceable in their domestic legislation? This shift towards increased enforceability appears to be against settler-colonial State interests.

• The modern treaty process is somehow linked with referendum success when lawyers and academics write about them. Why is a referendum needed for a treaty?

• Modern treaty is mostly a British Colombia/Canadian model/innovation, and is often looked to as an example to follow in Australia. The British Colombia situation is especially relevant to Australia because British Colombia was; like Australia, colonised terra nullius without treaties.

• New Zealand and the USA; settler colonial states with historical treaties, are not considering modern treaties. But New Zealand is considering increased self-government for Maori, and constitutional reform. Self-government is commonly cited as a characteristic of a modern treaty. And constitutional reform seems to be somehow related to treaty in Australia. So why not also refresh the Treaty of Waitangi content for modern times? New Zealand seem to be borrowing some of the main elements that are part and parcel of modern treaties, but without a modern treaty. As for the USA, why don’t they talk about modern treaties or constitutional reform at all?

I’ve come up with a hypothesis that explains many of these questions. It draws on the UN decolonisation resolutions 1514 (which is 60 years old today!) and 2625.

Historical Treaties

From a structural standpoint, these are entered into at or around the time of first contact. Original peoples were approached by European discoverer powers. The European settlements were established both legally and morally dependent on upholding the binding treaty terms. This was beneficial for both parties. The coloniser gains some protection of their territorial claim to ward off other European crowns. The original peoples set the conditions of settlement.

Once the European settlers had safely established themselves and their initially fragile colonial settlements, they turned to the Doctrine of Discovery Papal Bulls to justify wide-scale theft of land and genocide of the original people.

“…invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit”

Papal Bull Dum Diversas 18 June, 1452

The historical treaties were typically honored for a honeymoon period while invading powers established themselves, then ignored.

The Doctrine of Discovery has now been rightly repudiated and can no longer be used to justify territorial claims. Without the Doctrines of Discovery giving settler-colonial states their dieu et mon droit mandate to steal the land of infidels, historical treaties become – plain, normal treaties. That is; binding agreements between actors in International law.

In the withdrawal of the Discovery Doctrines from customary international law, settler states now remain dependent on these historical treaties for their territorial legitimacy. They operate on indigenous land conditionally on the terms of these historical treaties. The treaties are still binding. Most historical treaties did not explicitly agree to a complete cession of sovereignty. Because of this, the underlying sovereignty of the territory still resides with the original peoples.

In case of treaty-less territories (Australia, the Canadian province of British Colombia and perhaps other pockets); on the condemnation of the Doctrines of Discovery – the settler state is left with a flimsy legal basis. They must stay afloat by clinging to the wreckage of Discovery, while searching for a more sturdy legal foundation through “reconciliation”. For example, the Mabo 2 decision absurdly clung to the Doctrines of Discovery via Johnson vs. M’Intosh – more than 30 years after the UN Declaration on Colonialism.

There is an often cited criticism that historical treaties are not enforceable, and conversely modern treaties are better. As in there is no centralised “world police” to enforce internationally binding treaties, “historical” or otherwise. However there are mechanisms for non-centralised, diplomatic enforcement of treaties through international customary law. Hand-waving in the UN Security Council or General Assembly, withdrawing diplomats, closing embassies, sanctions etc. But settler-colonial states; like common burglars in the night, cut the phone lines to diplomacy and guard the doors of the courthouse to prevent historical treaties being enforced. Peoples under settler-colonial subjugation are effectively locked out of normal enforceability mechanisms. For example; the main judicial organ in International law is the International Court of Justice (ICJ). It is not possible to force a State into being judged on their unlawfullness in the ICJ (see Portugal vs. Australia). This is just one of barrier that locks peoples suffering under colonialism from the ICJ. The colonising state can refuse to consent to ICJ jurisdiction. Many of the usual treaty enforceability mechanisms in International law are denied because original nations are not recognised as being States.

Historical Treaties are effectively unenforceable. But there is now a ‘big stick’ available to all peoples under colonial subjugation in the Decolonisation resolution 1514 and the Friendly Relations resolution 2625. “Self-determination” in the colonial sense has not been technically achieved in settler-colonial states, including the USA. There is unfinished business, colonial settler states are on notice. Peoples under colonial subjugation can now theoretically pull the rug out from colonial states who are violating historical treaties.

This is why it is vital that settler states now uphold their historical treaties. The treaties are the settlers lifeline in the event of a challenge from original peoples under 1514. The Bluewater Thesis is an illusion and will not hold up forever.

Settler states remain burdened by the original peoples still holding the underlying authority of the land. This is not an ideal situation for them. If there was a way to wriggle out of this burden, they would find it.

Modern Treaties

There are three basic characteristics of modern treaties. Harry Hobbs and George Williams explain;

 A first principles assessment, and close examination of the modern treaty-making process in Canada, reveals that a treaty contains three elements. First, recognition that Indigenous peoples are polities, and so are distinctive and differentiated from other citizens within the State. Second, that settlement is achieved via a broad-ranging political agreement negotiated in good faith and in a manner respectful of each party’s standing as a polity. Third, that the State recognises or establishes, and resources, structures of culturally appropriate governance with powers of decision-making and control that amount to (at least) a limited form of self-government. Treaties are not merely symbolic instruments; they entail transferring some decision-making power from the State to Indigenous polities. The extent and scope of that self-governing power will differ according to context, but some decision-making power must be transferred. In consideration, Indigenous peoples must accept that the settlement constitutes a resolution of their claims against the State.

Harry Hobbs, George Williams

These three elements;

• recognition as political communities
• negotiation
• and an ongoing (possibly tokenistic eg. advisory-only) element of self-government

I posit that modern treaties are Instruments of Accession, similar to the instruments used in the formation of India, East Pakistan (Bangladesh) and West Pakistan (Pakistan). Accession is a process of entering into a treaty that is already negotiated, signed and in effect.

Remembering that both Canada and Australia, the two countries contemplating modern treaties; are already federations. A federation is a treaty. The treaty ‘documents’ are the Constitutions of each of the members of the federation (hence the requirement for constitutional reform for modern treaties to happen). The Commonwealth of Australia is already a treaty, or a compact between states or provinces. For original peoples to become party to one of these existing treaties of federation (Canada or Australia), they can do so through an accession instrument.

Accession instruments to a federation logically must include self-government because a federation is an arrangement where each member has a degree of self-government.

As Mohawk activist Russel Diabo has noted, Canada considers indigenous people as a “fourth level of government”. This is a possible outcome of the conclusion of “modern treaties” with an element of self-government.

New Zealand; unlike Canada and Australia, is a unitary State. Maori cannot accede to New Zealand because it is not a federation. This is why New Zealand is not doing “modern treaties”. It doesn’t work in their situation. They are trying a slightly different path.

Under a geographically comprehensive set of modern treaties or instruments of accession with original peoples (being kept track of through a Treaty depository), the settler-colonial State fully incorporates the original peoples into the settler polity and settler governance system. It is the political equivalent of marriage. ‘What’s mine is yours, what’s yours is mine’, there is no longer any distinction as to where sovereignty lies. The settler-colonial law can continue, using the original peoples’ legitimacy without having to meaningfully incorporate the cultural values or laws of those peoples. The terms of agreement can be fenced in by UNDRIP “rights”. The territory falls under the consented, legitimate control of the settler state. The land loses the influence of sacred lawkeepers and custodians. The settler-colonial communities are not expected to observe the sacred, ancient laws. But these ancient laws must be acknowledged at least tokenistically as they will replace the Crown as a source of legitimacy.

Modern treaty disarms the original peoples’ of holding the underlying authority of the land, and displaces original laws with foreign colonial law.

To enjoy the benefits from UNDRIP, the original peoples must meet the State’s burden of proof of cultural continuity. On the other side of the coin – the State now meets the burden of proof of their sovereign legitimacy through the consensual incorporation of the original peoples into the State itself.

Modern Treaties vs. Historical Treaties in the long-run

If you really want to see where modern treaties will lead in the long run, the best example to look towards is not British Colombia/Canada – but India. The act of Accession to the Indian federation remains internationally binding. But the negotiated terms of the (domestically binding) accession instruments themselves were and still are being betrayed. This is why Kashmir is still in turmoil today – India is not respecting the terms of the domestic “agreement-making”.

A recent example – Kashmir has tried to preserve it’s traditional family-based land-title through the terms of the accession instrument, and is now under huge pressure from mainstream India to open up to developers. There’s not a lot it can do against it, it is only a matter of time before they will be worn into submission.

There is one aspect today that could make a slight improvement on the Indian situation, and that is the UNDRIP. However, UNDRIP is not binding; it is an aspirational agreement between the “club” of nation states, and does not offer indigenous people’s their own leverage mechanisms.

Why “Treaty First” or Historical style Treaties are better

Historical, sovereign-to-sovereign treaties are (insofar as keeping up appearances internationally) respected by colonial states under the threat of the stick of UN Decolonisation. Settler-colonial states are scared of having the rug pulled out from under them. By not respecting historical treaties, they increase a real risk of their legitimacy being challenged under the UN Decolonisation framework.

This is why supporters of the Uluru Statement insist on constitutional reform BEFORE treaty. Constitutional reform in this context is federalism, and it is a structural prerequisite for modern treaties. It is preferable for the colony to have “modern treaties”, domestically enforced instruments which can be later ignored like what is happening in Kashmir.

A ‘historical’ type treaty – a “Treaty First” approach that Senator Lidia Thorpe advocates would be fully binding under International law. It is also theoretically enforceable under the “big stick” leverage of Aboriginal Torres Strait Islander peoples knowing they can walk away and declare independence under UN General Assembly resolution 1514 if their historical-style treaties are being violated.

The main reason why a historical treaty may not happen is because it would cause embarrassment for the Crown. But the Crown will have no choice once people see what’s going on.

Image by Steve Buissinne from Pixabay

In this video, Megan Davis spends about an hour talking about the importance of removing racial discrimination from the constitution. This was in 2012. She gives many good reasons why the Australian constitution needs an anti racial discrimination clause.

Fast forward to 2017.

The Referendum Council dumps the anti racial discrimination clause. This is despite more than 5 years of mainstream media propaganda trying to convince everyone why it was needed.

The stated reasons for the Referendum Council leaving out a prohibition on racial discrimination clause was that it wouldn’t advance self-determination, and wouldn’t provide a platform for treaty and truth-telling.

Well no shit. It doesn’t tick every single box. Neither would the Declaration of Recognition if they had bothered evaluating that against the same checklist. But the Declaration made it into the package.

A constitutional prohibition on racial discrimination – despite many good reasons to include it, was completely left out. ICERD (International Convention on the Elimination of all forms of Racial Discrimination) reviews continue to raise the weaknesses of the Racial Discrimination Act and the racist parts of the constitution as a major failure of Australia’s compliance with this important human rights convention. A constitutional anti-racial discrimination clause would have had a decent chance at preventing the cashless welfare card and the NTER. Both of these racist laws would probably be unconstitutional if a prohibition on racial discrimination were in the constitution and if ICERD were properly implemented. The legislation could be challenged in court, or to the Australian Human Rights Commission. The Human Rights Commission would then have the backup of the constitution itself. And even though going to a court might be expensive and time-consuming – it would be a deterrent to those drafting legislation that they have to make sure that they are not drafting something racist and unconstitutional.

A Voice to Parliament on the other hand would just give members of Parliament a bit of extra information to make their decision on a bill. Parliamentary backroom deals and members telephoning each other to get a bill through will happen regardless. “You vote yes on this bill, I’ll owe you one, wink wink…”. That’s how Parliament works – a “Voice” won’t change that. Watching the drama yesterday of the cashless welfare card passing the senate it’s clear that this is exactly how it works.

The real reason they left out the anti-racial discrimination clause is because there is a secret agenda behind all of this, and that is to decolonise. And you don’t need to remove discrimination under decolonisation by “free association”.Compare UN General Assembly Resolution 1541 annex Principles VII and VIII.

“Integration” (preambular recognition) requires the removal of discrimination – it needs to happen on the basis of equality. But “free association” (federalism with “First Nations” as per the Uluru Statement) does not.

The colony is so petty that it went out of it’s way, getting Megan Davis to back-flip on the anti-racial discrimination clause. They could have just left it in there – the Australian people would probably not bat an eyelid at it being included, it would protect everyone and make the Australian constitution look a bit less backward.

Image by edith lüthi from Pixabay

This post is part of some work I am working on in raising awareness for the UN Declaration on the Granting of Independence to Colonial Countries and Peoples (A/RES/1514/XV) made in 1960. The Declaration will be 60 years old on 14 December 2020.

1990’s “Reconciliation” was a project to lead to the decolonisation of Australia in a technical sense according to resolution (A/RES/1514/XV).

Australia’s first attempt at decolonisation was in the 60’s with the 1967 referendum. But in 1970, UN General Assembly resolution 2625(XXV) had a further development on the technical side of decolonisation – which retrospectively meant that the 1967 referendum didn’t meet it’s decolonisation goal. Resolution 2625 says (in quote below) that the native peoples of the territory retain their special status as people under alien subjugation (in accordance with the purposes and principles of the UN Charter) until they exercise their right to self-determination.

The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

Exercising the right to self-determination in the context of decolonisation means to assert a political status on the international stage of nation states.

So all up this means – for a territory to decolonise – the descendant communities of the pre-colonial communities (or polities) must explicitly assert their political status in an international sense. This is what “self-determination” means in the context of decolonisation. It is not to do with autonomy or “having a say in their affairs”. It simply means to assert a status.

(Don’t confuse the right of self-determination for colonised peoples (A/RES/1514/XV) with the right of self-determination for indigenous peoples (UNDRIP) – they are completely different things.)

During the 90’s, this was what Australia was trying to achieve. The goal was to form a republic, with inclusion of an assertion of a status from the pre-colonial peoples.ATSIC was intended to be the vehicle for this exercise of assertion of political status.

Who did ATSIC represent?

The ATSIC Act was (at least in part) a special law for a race – it was established using the federal races power. The Aboriginal and Torres Strait Islander Commission Act 1989 defines:

* “Aboriginal person” means a person of the Aboriginal race of Australia.

* “Torres Strait Islander” means a descendant of an indigenous inhabitant of the Torres Strait Islands

One of these terms is clearly race based, and the other based on an individual holding indigenous descent. Note that there is no legal definition of “indigenous” in international or in Australian law.

A major change in who ATSIC represents

In the late 1990’s, there was a change in who – conceptually – ATSIC represents. The original terms relating to persons of a race, and persons with indigenous descent (Aboriginal persons, Torres Strait Islanders) morphed into a new political term: “Aboriginal and Torres Strait Islander peoples”.

The colony changed from using race/descent terms to using a single term representing a distinct polity through manipulation via the courts. The main case this occurred was in Shaw v Wolf.

In Shaw vs Wolf, eleven people tried to become ATSIC representatives and had their eligibility challenged in the courts. One of the persons, Ms Oakford, could not demonstrate Aboriginal descent; although she had self-identification and community acceptance. The court determined her to be ineligible to run in the ATSIC election because she couldn’t demonstrate Aboriginal ancestry. Judge Merkel’s decision redefined “Aboriginal person” from being a race-based term as per the constitutional foundation of the ATSIC Act into a political definition.

The courts established the three part definition. The three parts are descent, self-identification and community recognition. The latter two criteria plus the fact that ATSIC’s function is to control resources for the community form a textbook definition of a polity.

Including descent as the first of the three criteria allowed some semblance of continuity in using the races power against pre-colonial polities.

However there was a problem. Most political communities and nations in the world enjoy the prerogative to decide whether or not to confer membership on outsiders; regardless of bloodline. In deciding to exclude Ms Oakford from the Australian legal definition of Aboriginal community, the courts took that prerogative away from the Aboriginal community themselves. This undermining of the community’s prerogative may have been a technical blunder that put the whole republic project at risk.

The Shaw vs Wood court case occurred in April 1998, not long before the 1999 referendum. The court case was perfect timing to get the ducks in line before forming a republic. ATSIC was retrospectively defined by the court into a body that represents the descendant pre-colonial political communities. Compare this with UN resolution 2625. The three part definition (*almost) corresponds to the peoples who retain a “separate and distinct status” from the colonial occupation in resolution 2625. In the international law on decolonisation – a race cannot exercise the right to self-determination and decolonise. A political community can. ATSIC must represent the correct political community in order to fulfill it’s job of consenting to forming a republic.

The referendum – a (secret) backflip

ATSIC supported the preamble and the republic referendum right through the 90’s. The official position of the ATSIC delegation to the 1998 constitutional convention was of support. However something went wrong. I think the plug was pulled behind the scenes on the entire exercise. John Howard made unexplainable dumb decisions in 1999 which made the referendum very unappealing to the public. He effectively sabotaged it. “Aboriginal leaders” later backflipped on their support in 1999, they stated the reason was because Howard’s personal poet drafted the preamble. I don’t buy it ATSIC leaders… I smell a rat. Why drop support because of a poet, when it includes the recognition you spent a whole decade supporting?

One of the criteria of constitutional reform proposals since the 1999 failure was that reform must be technically and legally sound. The inclusion of this criteria is a bit strange – duh, it’s a given that any change to the constitution should be legally sound. Is this criteria stated, perhaps because the 1999 proposal was NOT technically and legally sound? Perhaps due to the courts denying the Aboriginal community’s choice to include Ms Oakford as an election candidate? Or another reason?

A second possible reason for Howard’s sabotage and eventual failure of the 1999 referendum is this – ATSIC was not able to demonstrate their position of support as being reflective of their constituency. The assertion of consent from the pre-colonial community is needed under UN General Assembly Resolution 2625 to decolonise. And it needs to be strong enough to demonstrate in an international court if challenged. ATSIC failed in it’s main job – the community did not consent. So early in 1999, Howard put forward an unviable republic proposal to ensure that Aboriginal and Torres Strait Islander peoples remain unaware of their own power, to give backflipping ATSIC leaders an excuse to back away, and to attempt to at least get the preamble change through (which was polling better than the republic question at that time). If Aboriginal and Torres Strait Islander peoples were to be tipped off that they have the right of veto on any republic proposal, they might be able to leverage that for land rights, reparations, a degree of self-governance, or to carve out their own fully separate nation state. Howard’s strategic sabotage kept that cat in the bag.

This theory sheds a new perspective on the Buckingham palace meeting. ATSIC leaders met with the Queen in Buckingham Palace in October, less than a month before the referendum in November. Members of the delegation reported that they did not discuss the referendum, but were talking about “Reconciliation”. I suppose they there to plan the next decade – Reconcilliation 2.0.

Rewriting History

I wanted to add a recent, and odd quote from a piece Megan Davis wrote.

The starting point is 1999. At the last referendum to be held in Australia in that year, Prime Minister John Howard put to the Australian people a preamble to the constitution that included recognition of Aboriginal and Torres Strait Islander Peoples. This form of recognition was rejected by all of the cultural authority of Australia in its entirety, from land councils to the elected representatives of the Aboriginal and Torres Strait Islander Commission (ATSIC), to the electorate.

Megan Davis – The long road to Uluru

She sets the scene at 1999 – thus brushing away the support of ATSIC and “Aboriginal leaders” during the entire 90’s, including at the 1998 Constitutional Convention where ATSIC leaders had a supportive delegation. This is dishonest.

Right up into late 1999, at least some prominent “Aboriginal leaders” still supported the referendum. After the Buckingham Palace meeting in October 1999 –  Lowitja O’Donoghue stated

But I ought to say, that personally my position hasn’t changed as a result of having come to see the Queen, the Queen of Australia. I will still be advocating and voting ‘yes’ for a republic.

Lowitja O’Donoghue

When someone is being dishonest, they often try too hard and over explain themselves, and divert attention. The cheating husband has a big, elaborate, detailed story ready when he stumbles home late. I wondered why Megan Davis often writes these long articles going through history – going all the way back to 1967, into details which I don’t expect people to be interested in.

Why doesn’t she focus instead on the current reforms, and perhaps spend some of her word count and expertise to give us a better explanation beyond buzzwords and three-word slogans? Maybe she could explain what federalism of a First Nations entity would mean. Perhaps she could explain for us mere mortals how the reforms are “sophisticated” and “substantive”.

Megan Davis is being dishonest about the intention of every single attempt of these reforms, all the way back to 1967. They are – to decolonise Australia under UN/RES/1514/XV, for the benefit of Australians and the detriment of Aboriginal and Torres Strait Islander people.