Aboriginal Treaties: for the Past, Present and Future – Prof. Irene Watson

This article is part of a series posted by the ILA Reporter to mark International Day of the World’s Indigenous Peoples.

‘Treaty’ is a loaded word and concept. This is particularly the case when it is viewed through the lens of western jurisprudence which is applied to the politico-legal relationships between First Nations and colonial settler states.

In colonial relationships, the question of power is central to the view and version of how a treaty is privileged. Historically, the treaties entered into between colonial states and First Nations have favoured one treaty party – the colonial state, in every instance.

Legal history reveals that states have usually viewed treaties as a means of acquiring territory and jurisdiction; First Nations on the other hand, have viewed the same treaties as peace agreements and evidence of their sovereignty, and embodying a genuine capacity enabling their continuity.

But what are the chances of First Nations continuing to fully exercise sovereignty when the power relationship between the state and Aboriginal Peoples privileges the state, and erodes that sovereignty?

This has been the procedure for hundreds of years. What effect has it had on Aboriginal Peoples’ identities and claims to sovereignty? Who are we, the First Nations, now? Some argue that we are the same as we have always been: we were here first and we are still here today.  While First Nations may not hold power in terms of military force, we certainly retain the authority to challenge the racist ideas of terra nullius, that is, that we never existed. The evidence of ancient Aboriginal foundations and the long existence of hundreds of Aboriginal Nations is irrefutable. First Nations have grown from ancient treaties amongst themselves; those treaties acknowledge the ancient boundaries we care for and within which we belong. Our knowledges, languages, song lines and relationships to country continue to exist, but they do so presently under the duress of colonialism.

Do we need another treaty to tell ourselves and the world whom we are?  Or do we need a mechanism which enables an Aboriginal future, in which our lives are not always a struggle to survive? What mechanisms exist to guarantee our continued survival in the face of colonialism and genocide?  Would a new treaty provide relief, or would it be more of the same, and like all those other state colonialist mechanisms, work towards our assimilation and erasure?  Do we have sufficient power and privilege to even have a choice in steering the outcome and trajectory of an Aboriginal future away from assimilation and annihilation?

Who will make the choice? Who made the choices for trekking the constitutional recognition road, or any other of the government initiatives which have been presented as the representative voices of Aboriginal Australia? Where are our First Nations’ voices and who gives them space to speak?  Who determines who will speak on behalf of the Nations and what will be spoken of? What of our ancient political legal structures, and speaking with Aboriginal voices?

Where are our pre-terra nullius political and legal frameworks?  What of our ancient legal and political identities and their relevance today? If we were here then and are still here today, and each First Nation then had its ancient treaties and they still exist today, is that not a starting point?  Do we not begin by acknowledging and respecting our Aboriginal inter-nations’ relationships, as we have always done in the past?

We need to acknowledge that we have survived terra nullius, but we need no longer centre our being on a terra nullius framework of nonexistence. We need to return to our ancient existence as First Nations.  We are not victims or deficit beings – as we are commonly positioned by Australian colonial legal history. We are our own subjects in international law – we are the First Peoples to have inter-national relations with others. We challenge the idea that we have lost our international juridical status as Nations and Peoples. First Nations’ status as sovereign and independent peoples cannot be given to us by the colonial states, though this is how it is recognized by the UN and its international mechanisms.  Indigenous Peoples have not been created out of international law; we have come to international law as pre-existing, already-formed entities, as subjects in international law in our own right.

Our First Nations’ laws, presence and connections created a set of unbreakable responsibilities and relationships to our lands which predates British common law conceptions of real property and the common law of Australia by thousands of years. We have never relinquished, ceded or surrendered responsibility or ownership, and such actions are not within our ontologies and laws.  The assumption that the coloniser could subjugate us to their way of being, and to dismantle our relationships to our laws and our lands, is a denial of our ways of existence. The assumption that the coloniser could deny our existence, our ways of being and our relational legal systems is an act of racism.

Since the invasion of our lands by the British Empire the First Nations of Australia have asked the question: by what lawful authority do you come to our lands?  What authorises your efforts to dispossess us of our ancient connections to them?

To this day these questions remain unanswered. However, I remain hopeful for future generations, that there will soon come an acknowledgement of the sovereign position of the Aboriginal Peoples of Australia, whose lands have been unlawfully entered, stolen and governed without our consent. Whatever name we call that process, be it ‘treaty’ or an Aboriginal word for agreement – what is critical is that the relationship entered into is an ethical one, and is one under which the state matures in its understanding of power and privilege to truly honour the agreement. That is, it must honour the treaty in a way which centres Aboriginal knowledge and views of the world.

Professor Irene Watson belongs to the Tanganekald, Meintangk – Boandik First Nations and their territories, which include the Coorong and the south-east of South Australia. Irene is a Professor of Law at the University of South Australia; author of Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015); and Indigenous Peoples as Subjects in International Law (Routledge 2018), among numerous articles and book chapters.