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• A common justification why Modern treaties are needed is because of out-of-date content in historical treaties.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