Australia remains unique among settler societies in not signing treaties with local Indigenous peoples, nor recognising their prior occupation in foundational documents like the Constitution. States such as Canada and New Zealand are currently seeking to ameliorate previous non-recognition via negotiated settlements, treaty processes, and even redrawing their internal boundaries to accommodate Indigenous autonomy. Given that these developments build on historical recognitions of Indigenous status that simply never happened on this continent, it may not be surprising that processes of negotiation remain less developed in Australia. Yet the fact is that such processes are largely absent, not simply underdeveloped. Perhaps more alarmingly, at the beginning of the twenty-first century there seems little appetite for a national dialogue on the question of creative new ways to accommodate Indigenous political aspirations.
For many Australians, the articulation of a distinct Indigenous identity challenges notions of 'one Australia'. Cultural representations of Aboriginality are acceptable and may even be presented as 'Australian', such as on a Qantas jet, or when we bask in the reflected glory of Indigenous art's international popularity. However, overtly political claims are more worrying, being viewed not on their own merits but largely in terms of their ability to upset the unity of the state. Arguments for people-to-people negotiations or a treaty relationship are hardly heard because of the degree to which non-Indigenous Australians have psychologically as well as institutionally absorbed Indigenous peoples into the state. It is then conceptually incoherent to 'treat with oneself'.
An alternative position was argued in novel fashion by Patrick Dodson in his 'Wentworth Lecture' of 2000. (1) In it he identified twin Indigenous aspirations of exercising a distinct identity and retaining the protection of Australian citizenship. Despite fears to the contrary, Dodson felt these aspirations could be realised in a way that strengthens rather than undermines the unity of the state. This, he believes, can take place through a formal treaty process that sets out the proper protocols for a just relationship between peoples.
This article seeks to analyse these positions in terms of their conception of Indigenous status. At a superficial level, we see a battle between those who advocate 'assimilation' and those who demand 'separatism'. A key weapon in this battle is the deployment of particular views of history. However, both these extremes seem unrealistic given the strength of Indigenous identity on the one hand, and the continued dominance of 'European' institutions on the other. With this in mind, Patrick Dodson's vision of distinct but coexisting peoples seems more in tune with the reality that more than one people, or 'nation', must share this continent. Any attempt to go 'back to the future' by slotting Indigenous people into assumed structures appears doomed. Developing a negotiated, or treaty, relationship may be one way of affirming the legitimacy of both Indigenous and non-Indigenous identities in Australia.
Back to the future: citizenship not Aboriginality
Australia's political culture is devoid of a tradition of explicitly recognising, negotiating and accommodating the rights of those peoples present before European occupation. The relationship between Indigenous and non-Indigenous peoples has thus been dominated by the ongoing dynamic of colonialism. Given this history, developing a culture of negotiation would take time, and would be reliant upon grasping opportunities, making mistakes, and learning through practice. In a very real sense, the opportunity to fundamentally alter relations only came about in 1992 with the High Court's recognition of native title in Mabo. (2) In determining the continued existence of rights which inhered in Aboriginal and Torres Strait Islander peoples, it raised the possibility of Australia as home to two or more nations or peoples. It could have been expected that the court put paid forever to the notion that Indigenous peoples should be treated 'the same as' (that is, identically to) non-Indigenous Australians.
The High Court built on this with the 1996 Wik decision. (3) Wik maintained the priority of non-Indigenous interests that was preserved by Mabo. Because it also raised the possibility of some Indigenous and non-Indigenous rights to land coexisting, Wik did establish a new level of uncertainty in Australia's land law. But it also created the context for real negotiations to take place between Indigenous and non-Indigenous Australians at local, regional and national levels. Again, as with Mabo, it raised the unfamiliar and challenging idea that Australia was the home of at least two (or three, or many?) peoples. Public reactions to both Mabo and Wik, indicated, perhaps unsurprisingly, this idea did not 'take' immediately.
Us, them, and practical reconciliation
As is usually the case in Indigenous-state relations, the trajectory of things to come following Wik was largely determined by those with the power and the numbers--the government. The incoming conservative coalition, elected in a landslide, came to office with a slogan suggesting the end of government for noisy minorities, including Indigenous people. It would govern not for them but 'For all of us'. It decided that with Wik the pendulum had swung too far in the direction of accommodating collective Indigenous rights. It amended the Native Title Act in order to shore up non-Indigenous interests, and the need for negotiation over land was lost, or at least diminished significantly. The shift toward negotiation between peoples as a major organising principle of Indigenous-state relations (as seen elsewhere) was halted. Coexistence was rejected in favour of the more familiar assimilation/separatism paradigm.
While the two need not be mutually exclusive, the government has continued to eschew the rights agenda in Indigenous affairs in favour of a policy of 'practical reconciliation'. This policy prioritises alleviating socio-economic disadvantage over the recognition and negotiation of rights. The prime minister has stated:
We are determined to design policy and structure administrative arrangements to address these very real issues and ensure standards in education and employment, health and housing improve to a significant degree ... That is why we place a great deal of emphasis on practical reconciliation. (4)
Practical reconciliation seeks to address Australia's failure to guarantee the rights of Indigenous peoples to equal enjoyment of the privileges of citizenship. This means taking action to address issues such as health, housing, education and employment as isolated examples of disadvantage suffered by Indigenous individuals. (5) There is a real argument that these issues should properly be addressed as part of normal public policy and provisions, even if the delivery of services must be modified to …