Bennelong Papers

Premier Dan’s Dangerously Addled ‘Treaty’

Being a member of an oppressed minority is great.  Well, not so much in China, obviously, but in Australia it’s a doddle.  Take, for example, our ‘First Nations’ people. Not a day goes by that some pitched as designed to allow them to take their rightful place in Australia doesn’t get some prominence in the media. One such initiative is ‘Treaty’.

Promised by Bob Hawke in 1988, it hasn’t yet come to fruition but that is part of its charm.  We all find, from time to time, that once some cherished objective is achieved it loses much of its lustre.  It’s the anticipation and the struggle that really motivates us. But things are now moving on the Treaty front, at least in the People’s Republic of Victoria.

In 2018, the Victorian government, under the leadership of the man who is perhaps the most left-wing premier in our nation’s history, announced that it would negotiate a treaty with Indigenous peoples.  If you Google ‘Victorian Treaty’, chances are, depending on the browser you’re using, the first website that pops up will be that of ‘Australians for Native Title and Recognition’ or ANTaR.   ANTaR describes itself as a ‘national advocacy organisation dedicated specifically to the rights — and overcoming the disadvantage — of Aboriginal and Torres Strait Islander people’.  Its website tells us

The Victorian Government recognises that the Aboriginal peoples of Victoria never ceded sovereignty and that Treaties are necessary to address the wrongdoings of the past. Treaties are an opportunity to redefine the relationship between Aboriginal and non-Aboriginal Victorians.

What instrument has the Victorian government used to recognise that ‘the Aboriginal people of Victoria never ceded sovereignty’, I wondered?  The High Court of Australia, after all, has affirmed that no sovereignty, in the sense that we understand it today, resides in the Aboriginal people. It turns out that the  instrument in question is the Advancing the Treaty Process with Aboriginal Victorians Act 2018. What the Act says is:

Victorian traditional owners maintain that their sovereignty has never been ceded, and Aboriginal Victorians have long called for treaty. These calls have long gone unanswered. The time has now come to take the next step towards reconciliation and to advance Aboriginal self-determination. Aboriginal Victorians and the State are ready to talk treaty.

So what the ANTaR site claims is somewhat disingenuous. What the Victorian government says is that traditional owners ‘maintain’ that their sovereignty has never been ceded.  Although they don’t claim that the Victorian government actually recognizes Aboriginal sovereignty, their use of the word ‘recognise’ gives the impression that the government acquiesces in this claim and that its actions in negotiating a treaty are based on that premise. The Act established the First People’s Assembly – a body comprising 21 elected members and 11 members appointed by traditional owner groups – whose function, according to the Act is:

to represent the diversity of traditional owners and Aboriginal Victorians in working with the State to establish by agreement elements necessary to support future treaty negotiations.

That seems a pretty limited remit to me so I can’t help feeling the Assembly is getting rather ahead of itself, if this extract from its first Annual Report to Parliament is anything to go by:

The report signals more clearly than ever the new relationship between Aboriginal people and the Parliament of Victoria. Traditional Owners of Victoria have never before engaged with Parliament on equal terms. The Assembly is Parliament’s sovereign equal, comprising democratically elected Members who have been honoured with the responsibility of representing and advocating for Traditional Owners, and the broader Victorian Aboriginal community.

And this little gem from the same document (my emphasis):

Looking ahead. Doing business the Aboriginal way

This is an historic journey, and all Victorians are walking it together. The Assembly, comprising Traditional Owners elected from every part of this state, recognised by law as equal to government, is ready for negotiations to establish a system for Treaties. Through the process of negotiation we will assert our sovereignty and our inherent rights, including our right to self-determination. This will be an Aboriginal-led process, however Treaties will not be a success without the commitment of both the Government and the Parliament of Victoria. Treaty is a bold concept, but bold concepts are necessary to undo centuries of entrenched disadvantage.

 I have the distinct impression that the Assembly is not going anywhere soon.  It will undoubtedly morph into a Voice to the Victorian Parliament, even if a treaty doesn’t eventuate. 

The Act identifies parties to the treaty process as:

(a) the Aboriginal Representative Body;

(b) the State;

(c) the Treaty Authority;

(d) any person, group or body participating in future treaty negotiations.

Notably absent from this list, indeed not mentioned at all anywhere in the Act, is the non-Indigenous people of Victoria.  Conceivably, they could be included in category (d) if someone were aware and committed enough to establish a lobby group to represent the interests and views of the majority of Victorians.  But I doubt that they would be allowed anywhere near the negotiating table.  Presumably, Chairman Dan believes he is the people.

I doubt that many see themselves as ‘walking this historic journey together’.  Although, the Treaty was a Labor election pledge, which the Coalition opposed, I doubt that many votes hinged on this issue.  And I suspect even many Labor voters would be surprised to learn that the Aboriginal Representative Body sees itself as equal to Parliament.

But what of the Treaty itself?  What is it intended to achieve?  Well, the Act tells us:

The contents of a future treaty or treaties are yet unknown. A future treaty or treaties can help heal the wounds of the past, provide recognition for historic wrongs, address ongoing injustices, support reconciliation and promote the fundamental human rights of Aboriginal peoples, including the right to self-determination. A future treaty or treaties should enhance the existing laws of this State, acknowledge the importance of culture to Aboriginal identity, bring pride to all Victorians and have positive impacts for all of Victorian society. The State is committed to working with Aboriginal Victorians to negotiate a treaty or treaties on terms that will help tangibly improve their lives, and the lives of future generations.

The injustices of the past cannot be undone. The State is pursuing treaty because it is the right thing to do. Victoria needs a treaty or treaties that are reciprocal, and that through truth and justice provide far reaching benefits for Aboriginal Victorians. For traditional owners, Aboriginal children, elders, and stolen people; for a society that all Victorians can all be proud of; treaty will be for all Aboriginal Victorians. In the spirit of reconciliation, treaty will be for all Victorians.

So it seems that Aborigines have carte blanche to develop a wish list of whatever they want while the best outcome ordinary Victorians can hope for is a warm glow.

The Assembly’s first demands include establishment of a Truth Telling Commission and a Stolen Generations Redress Scheme, both of which the government has apparently agreed.  So ‘negotiations’ are obviously going well, then.  A Truth Commission, eh?  Hopefully, Professor Bruce Pascoe, that paragon of post-modern ‘truth-telling’, can find time out from his many media appearances to lend a hand.

Underpinning the process – running through the entire discussion – is the idea that it will lead to Aboriginal self-determination.  But what does “self-determination mean”?  It can best be summed up in three articles of the UN Declaration on the Rights of Indigenous Peoples:

Article 3: Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

 Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

 Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 5 is the clincher, the ‘have your cake and eat it’ clause that all oppressed minority groups need if they are to exercise real self-determination.

At the heart of every hot button Indigenous issue – be it reconciliation, the Voice, constitutional recognition, treaties or any other in a plethora of populist memes – is the concept of Aboriginal sovereignty, which rolls glibly off the tongues of the Marcia Langtons and Megan Davises of this world.  But it is a chimera.  A three-card trick.

What we have here in this First People’s Assembly is an Aboriginal polity, which did not exist in 1788, claiming a sovereignty that did not exist in 1788.  In 1788, what is now popularly and vacuously termed our First Nations comprised a number (300 or so) of distinct tribal groups, each with its own oral tradition and tribal law, spread across the continent and each separated into largely independent clan groups.   Due to geographical dispersion, most tribes could not communicate with other than their immediate neighbours.  When Thomas Mitchell travelled through New South Wales his guides could seldom communicate with the tribes through whose territory they passed.

Aboriginal clan groups exercised a form of governance that was roughly equivalent to local councils today.  That is the sovereignty that was ‘never ceded’.  They never exercised sovereignty over what is now the State of Victoria, let alone the whole continent. In areas where Native Title exists, Aboriginal communities already exercise the degree of ‘sovereignty’ that they had prior to 1788. 

This process the Victorian government has initiated and the Indigenous activists have embraced, owes nothing to Aboriginal culture.  It is a product of the very colonisation that these people so despise but without which not one of the 33 members of the First Nations Assembly, judging by their photographs, would exist.

Inasmuch as Aborigines wish to retain their cultural identity there is absolutely no impediment to this, providing that those elements of culture that offend against current norms are jettisoned.  That is, ceremonial and artistic aspects of culture, as well as familial obligations, are fully protected under Australian law.

Rather than being on the verge of extinction, what remains of traditional Aboriginal culture is remorselessly thrust down the throats of the rest of us. The ‘Aboriginal flag’, a for-profit concoction on which royalties must be paid, flies on every public building.  We regularly acknowledge Traditional Owners and are frequently ‘welcomed to country’.  We enjoy ‘You’re the Voice’ in ‘Language’ at New Year’s Eve fireworks.  We have indigenous football rounds.  We have NAIDOC, Reconciliation Week, National Sorry Day etc etc.  

One other aspect that apparently needs addressing is ‘equality before the law’.  What this means is the need to redress the disproportionate representation of Indigenous people in jail.  In this context ‘equality before the law’ actually means ‘special status before the law’.

Just about everything demanded by the activists — eg acknowledgement of past injustices, an end to racial discrimination, full participation of Indigenous people in the life of the nation etc — where they haven’t already done so, can be achieved by means of normal public policy initiatives.  In fact, the preamble to the Act says:

Through the strength, resilience and pride of Victorian traditional owners, their cultures, communities and economies endure and continue to grow and thrive today. Aboriginal Victorians are an intrinsic and valued part of Victoria’s past, present and future.

So Indigenous communities are not in danger of genocide.  There are major issues confronting some Aboriginal communities, as Jacinta Price has so eloquently argued, but those communities are not in Victoria.  The problems faced by ‘thriving’ Victorian Indigenous communities are more akin to the trauma suffered by Assembly member Sissy Austin, who is protesting the destruction of some trees, ‘birthing’ trees under which generations of Djab Wurrung women are said to have given birth, to make way for an expansion of the Western Highway.  I’m not suggesting this is not a legitimate grievance, but it is exactly the sort of bun fight communities engage in against development almost everyday.  It is part and parcel of accommodating progress with the past.  White society is abandoning its history and values at a rate of knots – witness same-sex marriage, gender fluidity, free speech  etc – because those traditions are now seen as outdated and we have, as they say, moved on.  Christian spiritualty no longer counts for much.  Why should Aboriginal culture be immune?

‘Treaty’ is just grandstanding intended, not to improve the lot of Aboriginal Australians, but to accord them a special place with special rights not available to ordinary Australians.  This Victorian treaty would arguably be unconstitutional, just as is Premier Andrews’ Belt and Roads deal with China.  But unless normal Victorians speak out strongly against this sort of over-reach, rather than trusting an ineffectual Coalition to represent their interests, they are likely to wake up one morning as second class citizens in their own state.

13 comments
  • Harry Lee

    Bigger error is to maintain the fiction that Dan Andrews, his government and the rest of the ALP and the Greens, and all their agents and allies -at State, Territory, Fed and Council levels- as acceptable, normal factors in a democracy devoted to individual freedoms and free enterprise. Obviously, the key policies, decisions and activities enacted by these neo-marxist forces are designed and implemented to replace the key elements of an open society with those necessary to conduct a marxist-inspired Big State run by and in the personal interests of marxist-inspired Commissars who control all institutions. Even now, in precincts with non-ALP and non-Green controlled governments, the public services and the law industries are dominated by neo-marxist/pro-Big State forces. And much of Big Business and all of Big Tech are now in alliance with the the Big State. All this is clear to those with eyes to see. That is, a tiny minority of proper citizens.

  • Ian MacKenzie

    In Australia the Federal Government has the sole power to make treaties. As the Australian States did not gain any new powers with Federation, they still have no power to enter into treaties. Whatever agreements States and Territories enter into, they are either ordinary contracts, or non-binding political agreements. It is in any case a nonsense to pretend that a government can enter into a treaty with its own citizens.
    It is interesting that both this contribution by Peter O’Brien and a previous one on “Welcome to Country” ceremonies by Mark Powell describe things already possessed by Maori in New Zealand. Unlike WTC ceremonies, the Maori greeting/challenge powhiri ceremony performed for visitors is essentially the same as that described by early explorers. The Treaty of Waitangi dates from 1840, and recent developments in its implementation are illuminating on any potential “treaties” for Australia. The most salient feature involves the payment of large amounts of taxpayer’s money to tribal organisations. The difference is that the large amounts of paid in Australia are supposed to mitigate disadvantage of those most vulnerable, but in NZ the money is not paid for social welfare but rather “compensation” for alleged historic wrongs. It is thus possible for the already wealthy to “administer” these funds by getting elected or appointed onto tribal boards. Perhaps this is why a treaty seems to be most popular in the Australian state with the least Aboriginal disadvantage.
    The other significant outcome of treaty-based reconciliation in New Zealand is Maori input into local planning decisions. Councils are now required to consult with Maori iwi (tribal representatives) on planning decisions. While this veto isn’t usually a problem with a home extension, big development projects inevitably attract issues, river spirits (taniwha) being a favourite, which can usually be appeased by either large amounts of money, re-routing the bridge or highway, or both.
    With a race-based veto on development and large amounts of “compensation”, what Indigenous Australian in inner-city Melbourne wouldn’t want a treaty?

  • PT

    That’s the point Ian McKenzie, it is Polynesian culture. Not Aboriginal culture. As I understand it, the performers were used to having a Polynesian “welcome” ceremony when they arrived prior to their making their own performances. And they were apparently “uncomfortable” about performing without one. It’s as authentic as all these aboriginal “kings” that white settlers used to give medallions to so they could claim some “agreement” for occupying land (something that’s now totally forgotten). It’s pure virtue signalling, as are all those who aren’t aboriginal (and by that I mean raised aboriginal) who harp on about “invasion day” and all the rest, but don’t move away or hand over their houses and land to the appropriate kin groups (Peter Garret’s lame excuse that he doesn’t know who to hand it over to shows how empty his “let’s give it back” talk is). None of these “warriors” for restitution is willing to actually give up anything they value as far as I can tell: those who push for a republic as a “gesture” to aboriginals are republicans regardless (and are actually using aboriginals to further something they personally want); those who push for a “new flag” to “please aboriginals” do so for the same reasons; those in inner cities imagine that “rich cockies” and “rich miners” will pay (“industry will pay” was Keating’s brush off over his “native title” legislation). But always it’s someone else who pays: never the proponents, nor do they surrender anything they value. Doubtless “nugget” Coombs imagined that the “big end of town” would pay the 10% of GNP to aboriginals he envisaged in his Treaty scheme, and not his working class battlers. But they all forget the “big end of town” can always spread the cost – that’s why they are the “big end of town” in the first place! I just wonder how aboriginal people will be seen once the reality of this ultimately filters through? Especially given that non-anglos will not think they owe them anything!

  • Harry Lee

    Still nothing about how to protect Aboriginal infants and children from neglect, abuse, and violence in Aboriginal communities. And the prospects are slim for Aborigines to live flourishing lives until such protection is provided.

  • Harry Lee

    PT, it would pay dividends were you to inform yourself of the actual functions, positive contributions, and nett benefits to the nation provided by The Big End of Town, and how they do this under extreme restrictions imposed by the powerful Leftist forces which now dominate Our Once Fair Land. Meanwhile, we can wonder at how it is that union bosses and other ALP operatives -esp those with anti-free enterprise credentials- live in nice big houses with water views in leafy suburbs. And we must note the rise of a major new threat to the general well-being, namely, that Big Business and associated big investors are now fast surrendering to the woke-ist forces and the woke-ists’ Big State/Dark State sponsors.

  • Tony Thomas

    I thought “treaty” always had to be capitalised as “Treaty” but official documents above don’t seem to. Peter O’Brien has not entered into another issue, “Who gets to be an elder” and who thus has special status in all this “Treaty” preparation, see
    https://quadrant.org.au/opinion/bennelong-papers/2020/04/who-gets-to-be-an-elder/

  • Peter OBrien

    Tony Thomas, thanks. I don’t know how I missed your article. Very interesting.

  • lbloveday

    “Who gets to be an elder”
    .
    Tony Thomas, should not “elder” also be capitalised, as “Elder”?

  • ianl

    >”In Australia the Federal Government has the sole power to make treaties.” [Ian MacKenzie above]
    Relying on the Constitution as administered by the High Court is dangerously naive, in my view.
    There are too many examples of betrayal in the US, UK, Aus to feel comfortable on this.

  • Ian MacKenzie

    ianl, while I share your concerns with the High Court making up law to suit the zeitgeist (see Mabo and numerous other examples), up until now no Australian state has ever been allowed to enter into a genuine treaty. When the states were set up, they had no external powers which were reserved to the Crown in London. As noted above, at Federation the States did not gain any new powers and so they still have no power to enter into treaties which is reserved to the Federal Government under Section 51 of the Constitution. Any change to Section 51 would require a referendum which, despite the March through the Education System, would still be a very tough challenge. Of course a state could call an Act of Parliament a “treaty”, but it would still in reality be either an ordinary contract (such as Belt and Road), or a non-binding political agreement, either of which could be reversed by a subsequent state government. Since December, contracts with foreign entities can now also be vetoed by the Federal Government.
    Interestingly it could be argued that, as the proposed Victorian “treaty”/agreement would be with Australian citizens, it would not come under federal veto based on the external powers (Section 51) as the High Court has held that the scope of this power extends to matters or things geographically situated outside Australia; Australia’s relationships with other countries and international organisations; in some cases, matters of international concern; and implementing treaty obligations.

  • PT

    You misunderstand me Harry Lee. I am not decrying the existence of the “big end of town” or the disproportionate contributions they made to building a prosperous community.
    .
    My point is this: lefties always imagine the “fat cats” in the “big end of town” will foot the bill for their virtue signalling. But they aren’t the “big end of town” for nothing. Either they will find a way to minimise the impact to a bearable level (which can only mean that the “battlers” will be picking up a lot of the tab, and this isn’t counting the indirect costs), or else they’ll move elsewhere (or move their assets at least). Besides, crippling business and hampering new start ups is going to impose high costs on the “battlers” in terms of lost job opportunities and pay rises. Not to mention higher housing and other costs. The point is all these “the rich will pay” schemes end the same way. Everyone but the favoured pays.

  • Harry Lee

    PT, very good then. Yes, we are surrounded by parasites and we are controlled by those who promise parasites that everything can be theirs, for free. And then, there is nothing, nothing but Wasteland.

  • Harry Lee

    Dan Andrews is now in hospital in intensive care.
    Some serious anti-Leftists are asking if this might result in Andrews’ resigning the premiership and if his replacement might be less anti-Westernist and less pro-China.
    The answer is that the anti-Westernist/pro-China hard-heads who control the VIC ALP, and the ALP generally, will continue to dominate VIC govt policies whomever is Premier.

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