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Issue #1737      June 29, 2016

Treaty ... the way forward

The following is an edited version of Pat Dodson’s Wentworth Lecture at the Australian Institute of Aboriginal and Torres Strait Islander Studies in Canberra on May 14, 2000.

For successive Australian governments, whether colonial, federal, territory or state ... our intertwined histories have been about their solutions to us as the problem!

The problem of our being here!

The problem of our disposal!

The problem of our assimilation!

And the problem of having us appreciative of all that governments have done “for our own good”.

For Aboriginal Australians the hope has always been for governments to enter into serious dialogue about our position in the nation and for the Constitution to recognise us as the first Australians, with our Indigenous rights, obligations and responsibilities respected and recognised.

There has never been any agreement about how we might progress this fundamental dilemma. They have been met with obstruction and deferral. The reasons often given have been that the electorate will not support them to do so.

The Day of Mourning and Protest*, like many other gatherings held by Aborigines since, has always been about rights. Most, if not all, have had little success in achieving lasting security and protection of the rights that we have sought.

The priority on the government’s side of the equation has been about securing the non-Aboriginal voters. For the people’s movement, for reconciliation to count, this is where it will have to make a difference.

Our interests and rights simply just do not count in the context of government ideology and political pragmatism. It has been on very rare occasions that governments have led the community against the contrary view of the polls.

The demands and petitions may have varied in language but never in content and intent. The Harris delegation that met the Western Australian state government in 1928 sought the same rights as the Day of Mourning campaigners.

The people of Noonkenbah and the Pilbara Strikers sought only to protect the rights and responsibilities that they had in the law and the land.

The history has not been told of all the occasions that Aboriginal people throughout Australia have protested or mourned for their stories. Most of these occasions appear to have fallen upon half-hearted or empty responses. Their comfort has come from their fellow Australians who have shared in our pain and disappointment.

No more or no less, the Aboriginal people who have survived the theft of their lands, the removal of their children and the destruction of their law and languages are seeking the guarantee of their rights to live within our law and culture.

To have recognition and respect in the Australian law that has assumed its power over our ancient rights and people. To be able to carry out our laws, customs and traditions through a formal accord recognising our equal status alongside the Australian law.

The government wishes to drive a wedge between [not only] the concepts of rights and welfare but also between those who advocate a rights agenda and those who seek relief from the appalling poverty.

This is an attempt at a new spin on a very old wicket of divide and rule.

If it were a matter of rice bowl politics it might not be so bad, but it is far more sinister than that. It is about removing the centrality of community as the life centre, and focusing on the individual as the essential unit of society.

This is not our way. With all our social problems the answer is not to attack the foundations of our community by putting the individual before the community.


Aborigines have never wanted to be the same as the white man. What we have sought is to have substantial equality so that as human beings there might be a quality of life that we can enjoy in keeping with our own values and societal ways. Lives for our peoples, similar to that of the majority in Australia, but lives uniquely ours, not ones that governments wished to impose upon us.

Lives where we meet our obligations as citizens but where we are accommodated also as Aborigines. Lives where our human and cultural rights are respected by the governments that have told the world they would respect them.

We have been an affront to the foundational thinking and perceptions that underpin the British mould of Australian institutional principles of society.

The confidence of the nation to celebrate with some pride its achievements is always tempered with the concern that the issues of unfinished business between us would surface and detract from the moment.

This inevitably sends the message to those who observe us, as a nation divided in the one country. It further highlights the inability of a modern democracy to come to grips fairly and respectfully with its Indigenous peoples.

From a cultural position, the only way that the mourning period can be ended is when the proper protocols and practical arrangements have been carried out. When the people who have had a wrong or an injustice done to them have been accommodated by the action of those responsible. Then we can come together as friends and mates.

What are the protocols to provide the relief to the causes of the mourning and trauma flowing from the intertwined history? There is no easy cultural match up. This is not about a fresh event; it is about a continuing state of being for the government and the society.

If this were a matter of a singular recent event in everyday life then the cultural leaders amongst us would know what to do. But this is beyond that relatively simple situation.

We have offered on occasions the deepest secrets of our societies to those in highest authority, who claimed to be seeking empathy and understanding, only to have that encounter and the gift to be diminished, as of no account.

The cross-cultural learning has not happened. Everything about us has to be subject and subordinate to the rules, practices and values of the dominant society.

Customary law details of the initiation business are not immune to the native title processes of our courts. Lawmen are forced to violate their own law to conform to the superior demands of the Australian court proceedings and rules to highlight connection and continuity for the benefit of the other parties, including the government, without necessarily securing the title to their lands.

At the Day of Mourning ceremony after the meeting in 1938, flowers were thrown into the sea as a sign of respect and remembrance of all the Aboriginal people who had died since the white man’s arrival.

The future

It was also an expression of the pain, hurt and frustration that the people had witnessed and experienced in their time and before that. It was also about their underlying fear for their future.

Those leaders of 1938 saw the loss and destruction of their peoples over the 150-year period as a sad and painful episode. The prospects of this past continuing required the leaders to look with hope to the future.

They would give up their sons and daughters to the god of war in a matter of months in defence of a nation that had rejected them. They would go on into the life of the nation with great contributions of citizenship when they had none of the rights that go with being a citizen.

One went on to become a State Governor but only after being forced to sleep in the sheds of country pubs in towns where he had gone to compete in athletic events.

But more than this, these leaders, who had the temerity to challenge those who would seek to prolong the suppression of their cultural, political and human rights, have demonstrated that we have survived – no matter how the policies of assimilation, cultural genocide and exclusion have impacted on our people.

The need to defend our rights for our children and out of the obligations to our people and the land remains.

Let there be no misunderstanding. The anger and disappointment that many Indigenous Australians have with the way the content of the “Towards a Document of Reconciliation” proposal is being handled is not directed at the Council for Aboriginal Reconciliation.

We are angry and disappointed at the cynical manipulation of the process that has been employed by the federal government and, in particular, the leader of that government [John Howard].

A manipulation that is an affront to the millions of Australians of goodwill that have sought a genuine reconciliation between our peoples. A reconciliation that is based on equity and justice for all of us.

On other occasions I have endeavoured to outline to people of this country what I believe are the key principles that must be addressed in any legislated framework agreement or treaty between our two peoples. Core principles, the extent of which must be negotiated between us, come under these core headings:

  • political representation;
  • reparations and compensation;
  • regional agreements;
  • Indigenous regional self-government;
  • cultural and intellectual property rights;
  • recognition of customary law;
  • an economic base.

In common with all other Australians we must have the right to maintain our unique cultural identity without having our entitlements as Australian citizens held hostage to the social imperatives of governments and their leaders, unable to comprehend the value of the contribution that we bring to this country as first Australians.

It may well be beyond the imagination of this current government to grasp the consequences of what the continued denial of the rights of the first Australians will be.

It may be beyond their imagination to grasp the importance in the same way that so many Australians have come to terms with the truth of our past and are seeking to provide a shared future of justice for all our children.

But one thing the leaders of 1938 taught us is that, unless we have the courage to persevere and confront the denial and prejudices placed before us, a just future for our children will not be secured.

For us to pass through the mourning gate I am proposing today that with the completion of the work of Council for Aboriginal Reconciliation only seven months away, that they place before the Parliament of this country the following proposal.


First, before the Council’s 27 and 28 event, the Prime Minister needs to make it clear that he will accept what the Council has put forward and that he will commit to a process with the Aboriginal peoples of finding practical, legal and political ways of advancing all aspects of the Council’s recommendations.

Second, Council has recommended that 40 distinguished Australians, 20 from each side, be commissioned with drafting a treaty between the Australian government and Aboriginal peoples.

The treaty is to be based on the matters raised by the Council’s recommendations and those other matters relayed to it during the course of its life as the ongoing causes for discord and division between us. The government is to nominate half the dignitaries and ATSIC [Aboriginal and Torres Strait Islander Commission] to nominate the Aboriginal dignitaries.

The government’s response to this proposal needs to be made clear.

Third, that the Aboriginal people and the government nominate their respective representatives to negotiate the draft treaty.

This process of negotiation should be overseen by all past Prime Ministers, High Court Judges and former Heads of State and an equivalent number of senior Aboriginal representatives.

An independent Treaty Commission should be established, independent of the government and the bureaucracy. It should be resourced appropriately.

If there is no agreement reached between the government and Aboriginal negotiators, the government should put the question of a treaty with Aboriginal people to a referendum.

If there is a positive result from the negotiations or the referendum, the government should adopt the treaty as part of our modus operandi and legislate for its adoption.

Just the other day I received a lovely letter from a 73-year-old non-Aboriginal Tasmanian woman, full of kindness but also with a vision.

Her kindness was in seeking advice on changing her will to fund a scholarship for future Aboriginal legal students. Her vision was one of reconciliation. She lives next to a conservation zone. She said in a PS to her letter:

“Hope the pelicans helped to ease your heart. I witnessed a riotous event one day. A pelican paddled in with a seagull on its back. The seagull hopped off at one stage and the pelican continued on its way.

“Realising he was alone, the pelican turned and paddled back to the gull. I could almost hear him saying, `Hey are you coming or not?’ The gull hopped back on and the twosome continued on their navigation of the area.”

In my home country, an event witnessed in the natural world such as this is can be read as a vision of spirit, or rai. The pelican gliding across the water is like the spirit of reconciliation, black and white together moving forward.

The seagull is in some ways like the governments of the day, forever changing, coming on and off the process, flying off to scream loudly before one day returning and joining the voyage, navigating towards a new future.

This future is our future, if we have the courage and will. Otherwise, as the Irish saying goes, “Bigots and begrudgers will never bid the past farewell”, and we will be trapped in our history.

* The Day of Mourning Protest, on January 26, 1938, was organised by the Aborigines Progressive Association whose leaders met at 148 Elizabeth Street, Sydney. A motion at the meeting said in part: “We, representing the Aborigines of Australia ... this being the 150th anniversary of the white man’s seizure of our country, hereby make protest against the callous treatment of our people by the white man during the past 150 years.”

Next article – Orlando: Latest G4S employee involved in pointless tragedy

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