Q: Is a treaty about setting up a "black state"?

A: Treaties in other countries have provided for indigenous self-government. It is likely that Aboriginal peoples and Torres Strait Islander peoples would want to negotiate self-government in relation to traditional lands as part of a treaty in Australia.[1]

In short, the answer to a black state is "yes".

The desire to use a treaty to establish a self-governing Aboriginal regime has been on the agenda of ATSIC chairman, Geoff Clark, since 1990 when he became deputy chairman of the secessionist organisation, the Aboriginal Provisional Government. During the period of the reconciliation process, the Aboriginal Provisional Government kept in the background. Nonetheless, Clark held his position all this time.

Inside ATSIC, Clark has now set up a treaty think tank whose key intellectual is the legal academic, Professor Larissa Behrendt of the University of Technology Sydney, who has been a member of the Aboriginal Provisional Government since 1993. [2] This organisation currently operates out of the office of its secretary, Michael Mansell, in Hobart. It calls for Aboriginal people to form "a nation exercising total jurisdiction over its communities to the exclusion of all others".[3]

Within Aboriginal politics, the desire for a separate nation is a matter of considerable controversy and there are many opposed to Clark and Mansell. Nonetheless, there is wide agreement among Aboriginal activists that the rationale for a treaty is the demand for indigenous "sovereignty".

Their argument is that the foundation of the British colony in 1788 did not extinguish the sovereignty of the indigenous peoples. Like the native title the High Court's Mabo judgement found had existed since colonisation, proponents of a treaty claim pre-1788 Aboriginal government and laws were never legitimately extinguished either, and should be restored. They want the treaty to complete what they call the "unfinished business" of colonisation.

In other words, the ceding of land rights under Mabo was only the first step in a process that has a long way to go. The ATSIC treaty booklet makes this clear.

Q: What is "indigenous sovereignty"?

A: Aboriginal sovereignty refers to the ability of indigenous peoples to act as a nation or nations. This includes the ability to be self-determining and to exercise self-government. Even though Australian governments and courts have never recognised indigenous sovereignty, many indigenous peoples believe that we have never given up sovereignty and retain it even if it has not been recognised by the Australian state.[4]

The demand by Aboriginal activists for sovereignty, however, has long faced a major legal problem. This is to find a judicial forum in which to argue it. The High Court might have been willing to endorse land rights, but in its Mabo judgement it unanimously confirmed that the validity of the sovereignty of the crown was not justiciable in Australian courts. The acquisition of sovereignty by the British in 1788 was an Act of State that the High Court could not review.

Moreover, Aborigines cannot take a case of this kind to the International Court of Justice because only a state can invoke this jurisdiction. So Aboriginal activists appear to face a Catch 22: in order to argue before a court that they constitute a state, they first have to be accepted as a state. This is why they regard a treaty as so important. Short of open insurrection, a treaty is the most politically effective way of realising Aboriginal self-government.

Those activists who don't share the agenda for outright secession want Aboriginal sovereignty to be contained within the Australian Commonwealth, much as happens on some Indian territories in North America. They are arguing for an outcome more politically acceptable to mainstream Australia. They see a black state as having similar powers to the existing Australian state governments, or to that of a largely self-governing territory like Norfolk Island.

Where would this more limited black state be located? No one has yet drawn up a map but there are now large tracts of Aboriginal owned land stretching across the centre of the continent from the Great Australian Bight north almost to Darwin. Add some sizeable enclaves in Western Australia, Arnhem Land and Queensland, and you have a territory much larger than Victoria.

How would a black state come into being? Its proponents expect little from the conservative side of politics and are pinning their hopes on a future Labor government.

The ATSIC booklet says it would first seek a treaty that endorsed broad principles, such as "the right to self-determination" and "the protection of indigenous laws and culture". Motherhood statements like these would then be left to the courts to interpret into political reality. Which court had jurisdiction would depend on the treaty: an international treaty would be interpreted through international law; a treaty legislated by parliament would eventually go to the High Court; a treaty in contract form would be the province of lower courts. Another option ATSIC canvasses is to establish a permanent tribunal, like in New Zealand and Canada, to make day-to-day decisions. [5]

In other words, once the Commonwealth has signed the treaty, the details would be out of its hands. The courts would decide ATSIC demands such as "ownership of land, waters and resources; reparations and compensation; self-government; constitutional recognition". ATSIC is plainly looking to a judiciary stacked with sympathetic activists like William Deane and Ronald Wilson. This means our democratic process would have little or no say in the establishment of an Aboriginal state, in the "reparations" due to it, or even the possible secession of that state from the Australian Commonwealth.

The idea for a treaty was first mooted by Dr H. C. (Nugget) Coombs in 1979 when he and the poet Judith Wright formed a committee of white academics and artists to lobby on the issue. [6] It gained its strongest political commitment in 1988 from Prime Minister Bob Hawke during the Bi-Centennial celebrations. In June that year, he attended the Barunga Festival in the Northern Territory and met with the National Coalition of Aboriginal Organisations. Responding to their Barunga Statement, which declared their rights "to self-determination and self-management including the freedom to pursue our own economic, social, religious and cultural development", Hawke signed a statement saying:

The Government affirms that it is committed to work for a negotiated Treaty with Aboriginal people … The Government hopes that these negotiations can commence before the end of 1988 and will lead to an agreed Treaty in the life of this Parliament. [7]

When Hawke got back to Canberra, however, he was met with two sets of objections. First, public service lawyers pointed out that a treaty had to be with a body genuinely representative of Aboriginal people, but no such organisation then existed. Second, his political advisors and some in his own party thought the idea might be unpopular with the electorate. In fact, as Hawke wrote in his memoirs, rather than being welcomed, his Barunga commitment had been "ridiculed by much of the media and others at the time". [8]

In response, Hawke abandoned plans to do anything in the life of the current parliament and adopted a long-term strategy. In 1990, he created the Aboriginal and Torres Strait Islander Commission. This was partly to put the responsibility for the delivery of Aboriginal services into Aboriginal hands but also to create a national indigenous political body to which representatives could be elected.

In 1991 he established a second body, the Council for Aboriginal Reconciliation. As former Labor minister Robert Tickner recalls in his own memoirs, this was created partly as a forum for Aboriginal grievances but was also intended to raise the awareness of the wider public to the Aboriginal position. [9] The objective of the reconciliation movement was to put off a treaty for the time being, but not to put it off indefinitely.

The Council was appointed for ten years at the end of which it was required to produce a document as the formal basis for an agreement. On cue, in January 2001, its final report did call for a treaty. However, even though it had been so long on the job, it shied away from producing the actual text of what the Aboriginal side wanted. [10]

While this makes it difficult for anyone to know what is actually meant by a treaty, the idea has not been wanting for supporters among mainstream white opinion. In August this year, the president of the Australian Medical Association, Kerryn Phelps, said a treaty had been discussed by her federal council and passed unanimously. [11] At the same time, the president of the Australian Council of Trade Unions, Sharan Burrow, publicly endorsed a treaty. [12] The Aboriginal and Torres Strait Islander Commission says it has also gained support for a treaty from a number of shire and city councils and is currently lobbying some of the more sympathetic state governments.[13]

In March this year, the treaty got its best response from the Labor government of Jim Bacon in Tasmania. Bacon introduced legislation to transfer more land to the descendants of Tasmanian Aborigines, as belated recognition of a verbal treaty allegedly made in the 1830s by George Augustus Robinson when he rounded up the local tribes and shipped them to Flinders Island. Even though there has never been any evidence for the existence of this treaty -- it is nothing more than a fanciful interpretation of Robinson's motives made by historian Henry Reynolds in 1995 -- the Bacon government offered 51,000 hectares of land as recompense. The bill, however, failed to pass the state upper house, so the Tasmanian Aboriginal Legal Service is now seeking legal redress before the Supreme Court. [14]

At the community level, Reconciliation Australia, the body funded by the Howard government to succeed the former Council for Aboriginal Reconciliation, is establishing a "people's movement" of committed volunteers to stage events like Sea of Hands plantings at schools and parks. [15] It is also fostering community discussion groups, such as the series of suburban talks held this year by Catholics in Coalition for Justice and Peace who presented the ubiquitous Henry Reynolds speaking on the topic: "Reconciliation: The Next Stage. What would a treaty entail?"

This is clearly a movement with both elite support and grass roots momentum.

Although public comment on the issue contains plenty of abstractions about indigenous rights and rectifying past injustices, one thing conspicuous by its absence is an account of the tangible benefits sovereignty might bring to Aboriginal people. It is plain that an Aboriginal state would provide positions of power and influence for the small, university-educated political class of Aboriginal radicals who are now behind the idea. However, its wider ramifications for indigenous people are less clear.

Moreover, there has been even less discussion of the likely impact on the non-Aboriginal majority of the population. What would they have to give up to make such an agreement, and would it be worth it? In the interests of weighing up the consequences, I would like to advance the following ten arguments against a treaty.

1. A treaty would re-establish political rights based on race

ATSIC wants a treaty to recognise the "distinct rights" it believes flow to Aborigines because they are descendants of the "first peoples". This means that, under Aboriginal self-government within the Australian Commonwealth, legal rights would be based on race. It means abandoning the principle that all people are equal before the law, regardless of race. ATSIC documents show the organisation is well aware that this is involved:

Q: Will a treaty mean that Aboriginal and Torres Strait Islander people will have different or separate rights to non-indigenous Australians?

A: Concern has been expressed that we should have "one law for all" and that a treaty would undermine this principle by giving special rights to indigenous peoples. However, others view a treaty as a way of recognizing that different standards and laws have been imposed upon indigenous peoples with the result that indigenous peoples continue to be disadvantaged and discriminated against. A treaty may be a way of protecting indigenous rights and addressing the results of discriminatory laws and policies. [16]

If we put aside the specious claim that discrimination is still legally practised against Aborigines, these comments demonstrate how short are the memories of those who wrote them. In the last fifty years, the greatest advances in the social and political status of non-European people have occurred under the aegis of principles that guarantee equality before the law.

It is true that in the nineteenth and early twentieth centuries many Aborigines were denied this basic right. In fact, in my view, the greatest crime Australia ever committed was to incarcerate them under the system of protectorates and reserves that prevailed until the 1960s. These policies were the work of missionaries and public servants who all claimed to be the Aborigines' friends but who established a separatist system of dysfunctional communities whose sociological legacy survives to this day.

However, in the 1960s, a campaign by a new generation of white and black activists largely put an end to this system. This campaign was morally and legally underpinned by a worldwide insistence on civil rights and equality before the law, as well as a widespread repugnance for legal systems that discriminated on grounds of race.

For Aboriginal leaders to want to re-introduce such principles, only this time in their favour, is short sighted. It might appear now that no harm would come and that only benefits would flow. It is historically naïve, however, to expect today's moral and political alignments to last forever. Abandoning crucial principles like equal rights for people regardless of race is one way to ensure that they don't. It would be one step in changing the prevailing political settlement for the worse. If this occurred, minorities like Aborigines would be the first to suffer, as they have done in the past.

2. A treaty would be socially divisive

Another consequence of which ATSIC is aware is that its proposals might be socially divisive. However, it believes a treaty would help overcome this problem.

Q: Will a treaty be socially divisive?

A: There is a view than an issue as contentious as a treaty will cause disharmony in society. However, it is clear that we already live in a society in which there is daily conflict around indigenous issues. As this division already exists, a treaty may be a way of redefining and rebuilding a relationship with non-indigenous Australia into one that is stronger and more respectful of indigenous peoples and our rights. [17]

Again, this is an argument that betrays little awareness of recent history. If there is one value that pervades Australian culture, it is egalitarianism of the levelling down variety. In this country, privilege generates resentment. This is especially so at the lower socio-economic levels of the community where jealousy over the very marginal privileges of some welfare recipients remains a burning issue.

A treaty that institutionalised social division on racial grounds would itself become a powerful cause of social division. It would also open the field to demagogues of various political hues promising to resolve the issue.

It is not hard to see that this would soon see social division matched by political division. We have already had a taste of this when Paul Keating's excursion into Aboriginal romanticism in the early 1990s produced the Pauline Hanson phenomenon. A treaty that privileged Aborigines would almost guarantee new and more virulent forms of Hansonism, which no amount of moral denunciation by the broadsheet press or the ABC would curb.

3. A treaty would not solve Aboriginal economic problems

When the proposal for a treaty was first mooted in the late 1970s, its advocates said it was needed to guarantee that a fixed share of the national budget went to the descendants of Aborigines to compensate for the dispossession of the lands of their ancestors. The then Aboriginal Treaty Committee argued that if there was to be a recognised right to compensation, it must be a right that could not be altered arbitrarily by later governments. [18]

The argument that compensation is owed for dispossession is not as cut and dried as its proponents think. There is a balance sheet involved here, and it is by no means entirely negative. The tracts of territory on which Aboriginal clans could hunt and forage have been now replaced by far more productive land use that not only sustains a modern population but leaves even the poorest welfare-dependent Aborigines far richer in terms of goods and services than their tribal ancestors. If dues are owed for hunter-gatherer land, there should also be dues owed in return for the Western science and technology that has made that land so much more productive.

Even those who reject this argument, however, must acknowledge that in recent decades the Australian government has made substantial shifts of revenue to Aboriginal people. In particular, in the last ten years, and from both sides of parliament, far more generous transfer payments have gone to Aborigines than to non-indigenous people.

According to data from the Commonwealth Grants Commission, in 1998-99, State and Commonwealth expenditures per capita on Aborigines compared to non-Aborigines were: health care $3067 versus $1713; housing and infrastructure $1428 versus $206; school education $2263 versus $857; employment programs $446 versus $147. [19]

These expenditures do not derive from political demands or claims for compensation but are based on the bipartisan concept of need. As long as Aboriginal people's welfare falls below average white community standards, this positive income transfer will continue, without a treaty.

The real problem is not any unwillingness by governments to spend money but the fact that it appears to produce such poor results. Despite the disparity in expenditure, Aboriginal health rates have not improved and education standards have gone dramatically backwards.

Instead, the expenditure has produced what Noel Pearson has denounced as a passive welfare economy. Pearson has argued that if welfare were replaced by compensation it would act no differently, in that it required nothing but passivity from its recipients and did not provide a stepping-stone to the modern economy. He writes:

There is a great danger that compensatory income will not be the beginning of an economy very different from our passive welfare dependence, since the destructive welfare paradigm is so firmly established and since our involvement in and knowledge about the market economy is currently so limited. [20]

Yet the economy envisaged by Geoff Clark's proposals for an Aboriginal state provides for precisely this scenario. When established, the economic base of this state would come from taxation, royalties and lease payments from mining companies, graziers and others who now make their living on Aboriginal land. The Aboriginal Provisional Government calculated in 1994 that these taxes and rents would provide it with revenues of at least $6 billion a year. Apart from this, it has developed no proposals for Aboriginal industry, employment or economic activity. [21]

Similarly, a paper produced in June this year for ATSIC by the Australia Institute think tank proposed a guaranteed share of national income for new Aboriginal governments, plus their right to raise revenue by taxes. But it did not put forward any credible proposals for new economic development.

This rentier scenario might sound attractive on paper. Michael Mansell has written: "It would mean for the first time in two hundred years, that Aborigines would no longer be the poorest people in the country but probably would be, in comparison with Australians, the richest." [22] But, in reality, it is hard to believe it would do anything more than reproduce, indeed multiply, all the devastating social problems of passive welfare identified by Pearson.

Without a change in attitude to economic development, compensation to Aborigines for their dispossession would most likely reproduce the same result as the Tainui Confederation in New Zealand. In a 1995 settlement, the New Zealand government gave it $170 million dollars, 15,782 hectares on the north island and an apology from the Queen as compensation for land lost in the nineteenth century. The Tainui spent the money on unproductive investments such as the failed Auckland Warriors rugby league team, corporate boxes at major sporting venues and an indigenous college that never opened. In November last year it defaulted on loans to the Hong Kong and Shanghai Banking Corporation and faced bankruptcy. [23]

4. A treaty would inhibit Aboriginal self-determination

In ATSIC documents about a treaty, the terms "self-government" and "self-determination" are usually run together. Self-determination is an ambiguous term that could be interpreted very broadly to include self-government plus other forms of control over Aboriginal culture. On the other hand, self-determination could also be interpreted much more narrowly to include only lesser forms of authority, such as control over public services like schools and health clinics, local government services, and cultural services like art galleries and tourist attractions.

On this softer interpretation, it is difficult to argue against self-determination in principle. For example, Australia has long had ethnic and religious communities who have run their own schools, in most cases with success.

However, in the past twenty years, Aboriginal attempts to do the same in the Northern Territory have been a failure. As Labor Senator Bob Collins's 1999 review made clear, while 82 per cent of non-indigenous urban students achieved year three reading in 1998, only six per cent of Aboriginal students in remote communities scored the same level. Collins blamed two decades of educational experiments in Aboriginal self-determination. Indigenous schools had adopted a radical, anti-Western curriculum. They had attempted to teach in Aboriginal languages instead of English, they employed too many unqualified instructors, and they abandoned insistence on regular attendance.

In principle, however, these problems are not immutable. They could be fixed by a different educational regime and a better curriculum. Given changes of this kind, an eventual goal of Aboriginal community control of schools is no more objectionable than the establishment of Catholic or Jewish schools. In the short-term, however, more Aboriginal self-determination in education would clearly only disadvantage more Aboriginal children.

There are other public services in the same position. A number of remote Aboriginal communities now manage their own local government services such as road works, housing construction and land management. Even though there are well-known problems involved here too, such as nepotism and a lack of accountability in handling public money, these issues are also fixable, in principle.

However, a treaty would do nothing to solve any of the problems that now exist. Indeed, it would inhibit their solution. It would discourage intervention by white educationalists, local government officials and the like, who would not want to intervene in separate, indigenous affairs. The existence of a treaty would also push Aboriginal leaders into seeking Aboriginal solutions instead of learning from the much longer European experience of managing such institutions. In short, at the level of local public services, a treaty would foster separatism rather than self-determination, to the long-term cost of Aboriginal communities themselves. The failure of Aboriginal education in the Northern Territory would be writ large.

To anyone not already blinded by the prevailing separatist ideology, the long-term future of Aboriginal people lies in accepting a combination of Western culture and indigenous culture. From what they say and do, most Aboriginal people clearly aspire to the same levels of health, housing, education and employment as the rest of the Australian population. There is an equally obvious demand for a distinct Aboriginal identity and for the preservation of some aspects of traditional culture. In the 1960s, before the current separatist ideology took hold, this used to be called integration. The concept of integration does not mean assimilation that obliterates indigenous culture, but rather the modernisation of Aboriginal people on their own cultural terms.

There is no inherent reason why this could not be an achievable goal within the existing political framework. A treaty, however, would not help to realise it. A treaty that separated Aborigines from the rest of us would only institutionalise barriers. It would make genuine integration much more difficult to attain.

5. The problems of instituting customary law are insurmountable

One of the most commonly used arguments for a treaty is that it would allow Aboriginal people to govern themselves using customary law. Aboriginal laws, this argument holds, were never legitimately extinguished by the British declaration of sovereignty in 1788 and thus should be revived on Aboriginal territory.

Last year the NSW Law Reform Commission endorsed the concept. It portrayed customary law as more humane than Western law, with punishments largely confined to shaming and banishment. The commission also claimed customary law was more culturally rigorous. It included many offences not recognised by Western law such as insulting an elder, singing sacred songs in public, showing sacred objects to women and neglect of kinship obligations. The report claimed that compulsory recognition of customary law by the state's judicial system would help reduce the incidence of Aboriginal incarceration and deaths in custody. [24]

The commission fixed its gaze on New South Wales and did not discuss the nature of customary law in other states or territories. Had it considered recent events in the Northern Territory, it might have reached a less sanguine conclusion. In the preliminary hearings of three cases last year in which Aborigines were accused of killing other Aborigines, local customary law was raised. It was clear that it had some major conflicts with Australian law. [25]

Local Aboriginal culture did not accept the concept of the presumption of innocence or the normal procedures of the white criminal law. Customary law required that the killing of three people from one clan be avenged. This could be satisfied by the killing of any three members of the clan of the perpetrators, not necessarily the guilty parties. Moreover, the payback process did not require any testing of the evidence to determine conclusively who the actual guilty parties were.

These principles, of course, offend not only against Australian law but also against international notions of human rights. If an Aboriginal government within the Commonwealth established a regime that upheld such principles, the Australian government would be obliged to intervene to overturn them.

Moreover, as the NSW Law Reform Commission itself acknowledged, and as the protracted dispute over the notorious Hindmarsh Island Bridge has made very clear, some Aboriginal laws are secret. Some secrets may be disclosed only to women and others only to men. One of the principles of Australian law is that a court may not hear evidence or receive submissions from one side that are not disclosed to the other. [26]

The application of customary law thus involves conflict with both Australian and international laws and legal procedures. If an Aboriginal state seceded and became totally independent this would be an issue for it alone, but while it remained within the Commonwealth the conflicts would be insurmountable.

This would be especially true given the likely geography of an Aboriginal regime. There is no region where the population is exclusively Aboriginal. Unless whites were expelled from all places that came under Aboriginal governance, there would have to be different laws applied to blacks and whites living in the same region.

There would also be no certainty about which Aborigines the law would apply to. Would it apply to all Aborigines in a given region, or only those who chose to recognise the local authority? Could some Aborigines choose to be treated by the law as if they were whites? If not, on what principle could they be denied? Would customary law apply all the time or only when those charged with offences chose to invoke it? Simply to raise these questions is to show they have no acceptable solution.

There is also the problem of defining just what the law is. Customary law is unwritten. It is usually regarded as part of inherited culture - all initiates of a clan know what it is. However, as cases in the Northern Territory have shown, there are times when the members of a clan who are accused of serious crimes have expressed different views about what the law actually says or have wanted to allow defences that members of other clans did not recognise. In other words, unwritten customary law provides scope for some people to have different memories about their legal system when it suits them.

Despite the NSW Law Reform Commission's approval, the fact that customary law regimes can be more intrusive on the lives of individuals than Australian law is a matter of concern. This is especially so in personal relations where some Aboriginal practices, such as the betrothal of young girls to old men or the tolerance of violence towards women, still survive. If social customs of this kind took on the force of law and inhibited the liberty of those subject to them, the Australian law could not watch idly as its own basic principles were flouted.

The strongest argument against customary law, however, is that the interests of Aboriginal people themselves are better served by the Western legal system. Despite frequent claims to the contrary by legal academics steeped in the currently fashionable doctrine of cultural relativism, the framework of laws and the concepts of justice inherent in the Australian system are not ethno-centric, that is, they have not been established simply for the benefit of the white population. They incorporate the accumulated experience of the English common law and the best international judicial argumentation. They have a claim to universal application. In fact, they provide the basis of the conventions of human rights and other principles upon which Aboriginal activists now frequently rely when they appeal to international tribunals over land rights, discrimination and self-government.

The fact that Western law's cases and judgements have all been written down is the most important distinction. Written law has allowed a large and growing body of argument and decision to be read and reconsidered time and again, and passed on intact to subsequent generations.

The oral traditions of Aboriginal customary law are not in the same league. They are limited in scope by the memory of their purveyors and rarely survive uncontaminated for more than two or three generations. They were developed for the needs of small-scale hunter-gatherer communities and cannot hope to handle the problems of complex, highly developed societies, where is where most Aborigines now live.

6. Aboriginal self-government would be undemocratic

Even though the Hawke government set up ATSIC in 1990 to fill the absence of a representative political body of indigenous people, there are still major problems within Aboriginal politics. The principal one is that, despite its democratic façade, neither ATSIC nor any of its potential successors are, or are likely to be, genuinely representative bodies. In the 1999 ATSIC elections, the overall turnout among eligible voters was only 23 per cent. Among Aborigines in Sydney, only six per cent of those eligible bothered to vote. The turnout was highest in the smallest communities, such as Cooktown where 74 per cent of those eligible voted. [27]

These figures are revealing. In small, discrete communities, ATSIC funding is the principal source of income for services such as housing and employment so there is a local vested interest. In some communities, there is also the 'big man' influence where a local identity can count on a personal following. But the turnout figures do not reveal the existence of a strong pan-Aboriginal movement for indigenous rights. They indicate that where personal factors are absent there is a very low level of political commitment to the Aboriginal cause.

This is probably why those Aboriginal activists who give the strongest support to separatism are just as strongly opposed to indigenous democracy. In his 1994 book, Aboriginal Autonomy, Nugget Coombs opposed the establishment of representative democracy. Instead of a national, democratically elected council like ATSIC, the type of Aboriginal government that Coombs favoured was what he called "bottom-up federalism". This would be a federated organisation composed of non-elected elders from various different clans who would meet to design and give effect to their own political agenda. The federated body he favoured would be composed entirely of appointees. [28]

This is also the model that Geoff Clark and the Aboriginal Provisional Government prefer. "Reflecting the beliefs of Aboriginal people throughout our country," says the journal The APG Papers, "the APG is governed by a body of Elders. They are entirely autonomous, acting as they should as the respected and prestigious heads of our government." The organisation sees self-government developing entirely under the control of elders.

As the Elders establish themselves, they will lead the way by negotiating with the leaders of other countries, develop policies and give public speeches. The Elders will control entry to their membership, as is entirely appropriate. [29]

In other words, an Aboriginal government would be run by an oligarchy, responsible only to itself, and entirely self-appointed.

It is no wonder that there has been so little democratic participation in Aboriginal politics among the rank and file. The current generation of leaders are actively opposed to the development of a democratic culture.

7. Sociologically, it is too late to revive Aboriginal sovereignty

In 1999 the government of Canada gave great encouragement to the international "first peoples" political movement when it established the indigenous territory of Nunavut. It set aside two million square kilometres of its Northwest Territories, an area of about one fifth of the country's land mass, to be governed by the Inuit people, or Eskimos. At a party in Sydney held by the Canadian Consulate-General to celebrate the founding of the new state, the congratulatory address was given by Australian High Court judge, Michael Kirby. Australia should take a lesson from the happy birth of Nunavut, Kirby told the gathering. Self-government for Aborigines was not something of which Australians should be afraid, he said. To achieve it, we need not cede complete independence, like Indonesia gave the East Timorese. Instead, Kirby recommended that our Aborigines could gain self-determination within the federation, like the Inuit had achieved. [30] Plainly, this is one judge who is not waiting to hear evidence or argument on this matter. He has obviously made up his mind already.

But if the Canadians can do it, why can't we? The difference in Australia is that Aboriginal people are not confined to one location. The territory of Nunavut contains 27,000 Inuit who constitute the large majority of residents of their region and the greatest concentration of their people in all of Canada. In Australia, there is nowhere sociologically comparable. There are only a handful of places where indigenes even form a majority. At the 1996 census they were the Torres Strait islands, Arnhem Land, the Kimberley and the desert country of the Northern Territory. Even here, whites constitute sizable minorities of about 35 per cent. [31]

Moreover, these remote regions hold only a small proportion of the total Aboriginal population. In 1996, some 72.6 per cent of the total indigenous population of 386,049 lived in what the Census defined as "major urban" or "other urban" centres. [32] In the 36 regions into which Australia is divided for ATSIC elections, almost half (48 per cent) of the indigenous population lived in the nine most urbanised of them -- Sydney, Brisbane, Adelaide, Perth, Hobart, Darwin, Townsville, Cairns and Coffs Harbour. [33]

The greatest ratio of Aborigines to whites still occurs in the Northern Territory where 27 per cent of the population is indigenous but, even here, the total Aboriginal population outside of Darwin is only 37,370, that is, barely more than the Sydney suburbs. [34] Moreover, the fastest growth of Aboriginal population has occurred in metropolitan and large urban centres where between 1991 and 1996 it averaged 50 per cent, compared to only 13 per cent in rural areas. This means the pattern of 1996 is only likely to intensify in the future. [35]

This geographical distribution is confirmed by both the social and cultural statistics. According to an analysis of the 1996 Census by Bob Birrell, 65 per cent of Aboriginal adults who are married or cohabiting, are doing so with a non-indigenous spouse. In the cities and among the young, this figure is as high as 90 per cent. [36] When asked about their religion, 71.5 per cent of Aborigines professed Christianity. Of the total indigenous population, adherents of traditional Aboriginal religion accounted for only 2.06 per cent, that is, a total of only 7,952 individuals. [37]

In short, the Aboriginal people have already voted with their feet. Their sociological distribution does not support their separate political status. Indeed, it is a powerful argument against it.

8. The logic of the case is flawed

The Mabo judgement of 1992 was seen by activists not as a conclusion to their demands but simply as stage one in a much bigger game. In an article in 1996, Henry Reynolds said the judgment was only a beginning to the process of redressing the legal injustice. "Now the time has come," he wrote, "to move on to tackle the question of Aboriginal sovereignty." The High Court had determined that Aborigines had a form of land tenure before colonisation. This had survived the British declaration of sovereignty in 1788. How, Reynolds asked, did land ownership survive without some accompanying form of sovereignty? The very existence of land tenure, he said, implied a form of Aboriginal law and government. [38]

The visiting Canadian legal academic, Patrick Macklem, took a similar line. He observed that in his Mabo judgement, Justice Brennan had rejected the principle that Britain had used to justify its dispossession of Aboriginal land. This was the belief that the Australian Aborigines were insufficiently civilised to merit being regarded as sovereign authority over their land. Judged by today's standards, Brennan said, such a law was unjust.

Macklem observed that the same test Brennan had applied to land rights should also be applied to political rights. "Just as it is unjust to deny the validity of Aboriginal rights with respect to land based on the fallacy of European superiority", Macklem contended, "it is also unjust to deny the validity of Aboriginal rights of governance on the same fallacy." Therefore, he went on, "Aboriginal rights of governance ought to be recognised as surviving the assertion of Crown sovereignty according to the same principle of justice governing the survival of Aboriginal rights with respect to land." [39]

Despite the confidence of these pronouncements, the Mabo judgement did not analyse the actual existence of land tenure on the mainland of Australia. Once it had established native title existed on the island of Mer in the Torres Strait, the judgement simply declared that this should be extended to the whole of the continent. The court made the assumption that on the mainland some form of land ownership existed in principle. Whether it existed in fact, and exactly where it existed in particular, were questions to be determined on a case by case basis. This is what Keating's 1993 post-Mabo legislation provided for.

To date, establishing land rights on the mainland has not been easy. Some of the major cases, like that of the Yorta Yorta people of the Murray River region, have failed in the Federal Court. In Western Australia, this has led sympathetic governments to short-circuit the procedures. In August this year, Labor Premier Geoff Gallop ceded 26,000 square kilometres of land to the Tjurabalan people, in a settlement negotiated before their land rights claim went to the Federal Court. Gallop said he was doing this because the existing procedures were taking "too long" to recognise Aborigines as the owners of the land. [40]

The reality is, however, that it is very difficult for a court to establish Aboriginal concepts of land ownership. The most exhaustive legal examination of this issue remains the 1971 case, Milirrpum v. Nabalco, in the Northern Territory Supreme Court where Justice Blackburn heard applications by Arnhem Land Aborigines to prevent an aluminium mine on the Gove Peninsula. This was not a case that hinged, like that of Yorta Yorta, on whether former native ownership had been extinguished by subsequent events. It was about the very concept of Aboriginal ownership itself and whether such a concept existed at Gove. The case took evidence from the eminent anthropologists W.E.H. Stanner and Ronald Berndt, as well as Aboriginal witnesses from eight different Northern Territory clans. Justice Blackburn found that, while the local Aborigines did have an established system of laws before white contact, these did not extend to a proprietary interest in the land. There was neither the concept nor practice of the exclusive use or exclusive occupation by any local clan or band. That is, they did not have the concept of owning the land. [41]

Now, if some Aboriginal cultures did not have the concept of land ownership, and did not act in ways that implied land ownership, the case for sovereignty loses its most crucial premise. Without it, claims about the continued existence of pre-colonial Aboriginal government and laws have to be made independently, on a case by case basis, a much harder thing to do. This means the argument by activists like Reynolds and Macklem that Aboriginal sovereignty automatically flows from the Mabo judgement does not follow. The High Court's acknowledgement of the principle of native title does not, of itself, imply the right to self-government.

9. The theory behind the demand has been a historical disaster

The idea of establishing a nation based on a race or an ethnicity did not originate within traditional Aboriginal culture, which did not have the concept of either the nation or the state. Instead, it derives from Western intellectual history, especially the rise of German romantic nationalism in the nineteenth century.

The principal visionary of this theory was Johann Gottfried von Herder, the German philosopher of history. Herder was the man who originated two of the most influential concepts of the modern era: cultural relativism and national self-determination. He said that people who constituted a language group, no matter how small and undistinguished, had their own culture, which could not be judged by outside standards and which was authentic in their own terms -- all cultures are different but equal. He also argued that all unique cultures deserve to determine their own destiny -- every culture should form a nation. [42]

Though Herder regarded himself a conservative, he let loose on Europe one of the most destructive concepts ever devised. It meant establishing a polity not on political principles like liberalism or democracy but on the bloodlines of ethnicity and race. In the nineteenth century, the wars of German unification were waged to enforce the idea that all German volkes must be affiliated to the German state.

In the twentieth century, under Adolph Hitler, this logic led to the extirpation of those who did not qualify as part of volk culture. Joseph Stalin cynically used the same concept to mollify the "autonomous" republics of the Soviet empire and to export socialist revolution around the world under the guise of national liberation. In the 1970s, the great enthusiast for the idea was Pol Pot, who used it to justify genocide in Cambodia. More recently, the concept emerged in the Balkans, represented by the sinister euphemism of "ethnic cleansing".

Throughout its history, romantic nationalism based on race has invariably generated hatred, bloodshed and tragedy. It is hard to believe that its Aboriginal version is any more likely to produce a different result.

10. A treaty jeopardises Australian sovereignty

A treaty is a compact between two parties and normally offers incentives to both sides. Most of the treaties of history have usually offered nothing more attractive than the cessation of hostilities. Still, this at least has been a positive outcome for all parties. In the proposals for an Aboriginal treaty, one side, mainstream Australia, has nothing to gain from it and everything to lose.

One of the major arguments for federation in the 1890s was that its product would be a nation for a continent and a continent for a nation. This was especially attractive because of its implications for national security. The architects of federation saw that, unlike Europe, whose history had been dominated by territorial warfare, Australia's absence of land borders with other nations would be one of its best guarantees of peace and stability. [43] So far they have been proved right.

The establishment of an Aboriginal state would put this in jeopardy. At present, of course, to see a threat to national security in all this might seem absurdly far-fetched. Nonetheless, given the enormous sense of grievance expressed by the current Aboriginal leadership, and given the fact that Geoff Clark and his colleagues are part of an international "first peoples" movement that provides a momentum and influence of its own, it would be naïve to imagine that, once established, the leaders of an Aboriginal state would be satisfied to confine themselves to the provision of municipal services.

A state would provide a bargaining position for its leaders to exert far more influence over mainstream Australia than anyone now imagines. It would also provide a political platform from which to play to a world audience and to make allies who would not necessarily share Australian interests.

When Michael Mansell visited Libya in the late 1980s to seek aid for the Aboriginal Provisional Government from Colonel Gadaffi, the press treated him as a bit of a joke. But if Mansell had been an officer of a sovereign Aboriginal state, it would not have been quite so amusing.

In its own interests, mainstream Australia has no reason to provide even the slightest leverage for such possibilities, or to leave future generations with their consequences. A treaty with the Aborigines has long-term risks to Australian sovereignty, which, however slender they might now seem, are not worth running.

Many white people today, especially those who last year walked across bridges for reconciliation, no doubt see a treaty as some kind of welfare measure or as a nice symbolic gesture. It deserves to be recognised, rather, as a device that, in one stroke, would establish Aborigines as a politically separate race of people. For all the reasons offered here, this would be bad for Australia and worse for Aboriginal people themselves.

Endnotes

1. Aboriginal and Torres Strait Islander Commission, Treaty: Let's Get it Right!, ATSIC National Treaty Support Group, May 2001, p 16
2. Debra Jopson, 'The quiet fighter for the people', Sydney Morning Herald, 25 June 2001, p 11
3. Michael Mansell, 'Tomorrow: The Big Picture', The Future of Australia's Dreaming, Australian Museum, Sydney, 1992, p 17
4. ATSIC, Treaty: Let's Get it Right!, p 17
5. ATSIC, Treaty: Let's Get it Right!, pp 10-11
6. Stewart Harris, It's Coming Yet … An Aboriginal Treaty Within Australia Between Australians, Aboriginal Treaty Committee, Canbera, 1979
7. Barunga statement and Hawke's response are published in full in Juanita Ferguson (ed.) Aboriginal People and Treaties, Conventions Coverage International, Hunters Hill, 1989, pp 88-9
8. Bob Hawke, The Hawke Memoirs, William Heinemann Australia, Melbourne 1994, p 435
9. Robert Tickner, Taking a Stand: Land Rights to Reconciliation, Allen and Unwin, Sydney, 2001, pp 29-34
10. Council for Aboriginal Reconciliation, 'National strategies to advance reconciliation', Canberra, January 2001
11. Kerryn Phelps, interview, Meet the Press, Network Ten, 12 August 2001
12. 'ACTU backs treaty', Sunday Telegraph, 27 May 2001, p 19
13. 'Treaties snowball', Sunday Telegraph, 6 May 2001, p 48
14. Anne Barbeliuk, 'Aborigines set to claim half the state', The Mercury, 7 September 2001
15. Debra Jopson, 'Great march, shame about the progress', Sydney Morning Herald, 28 May 2001, p 11
16. ATSIC, Treaty: Let's Get it Right!, p 16
17. ATSIC, Treaty: Let's Get it Right!, p 15
18. Stewart Harris, It's Coming Yet … An Aboriginal Treaty Within Australia Between Australians, p 11
19. Commonwealth Grants Commission, Indigenous Funding Inquiry Draft Report, Canbera, 2000, Attachment A, 'Expenditure on Indigenous Programs'
20. Noel Pearson, Our Right to Take Responsibility, Noel Pearson and Associates, Cairns, 2000, p 28
21. Michael Mansell, 'Seeking real rights for Aboriginal people in Australia', Aboriginal Provisional Government, Hobart, February 1994, p 10
22. Michael Mansell, 'Seeking real rights for Aboriginal people in Australia, p 10
23. Michael Field, 'Maori group that won millions teeters on the edge of bankruptcy', Sydney Morning Herald, 28 November 2000, p 12
24. NSW Law Reform Commission, Sentencing: Aboriginal Offenders, Sydney, December 2000
25. Paul Toohey, 'Murder, sorcery and tribal law spill bad blood between native leaders', The Weekend Australian, 25-26 November 2000, pp 1-2
26. For this and related points see Sir Harry Gibbs, 'Legal dualism - One nation but two laws?' in The Churches: Native to Australia or Alien Intruders, Galatians Group, Melbourne, 1994
27. W. Sanders, J. Taylor and K. Ross, 'Participation and representation in ATSIC elections: A 10 year perspective', Australian Journal of Political Science, 35 (3)
28. H. C. Coombs, Aboriginal Autonomy: Issues and Strategies, Cambridge University Press, Melbourne, 1994, pp 182-3
29. 'The Structure of the APG', The APG Papers, Vol 1, Aboriginal Provisional Government, Hobart, July 1992, p 33
30. Tony Stephens, 'Self-determination for Inuits has message for us all: Kirby', Sydney Morning Herald, 2 April 1999, p 4
31. 'Census counts, Place of Enumeration, ATSIC regions', Table 6, Population Distribution, Indigenous Australians 1996, Australian Bureau of Statistics, Census 1996, cat. no. 4705.0, Canberra, 1997, p 17
32. 'Population', Census of Population and Housing: Aboriginal and Torres Islander People, Australian Bureau of Statistics, Census 1996, cat. no. 2034.0, Canberra, 1998, p 5
33. 'Summary of findings', Population Distribution, Indigenous Australians 1996, Australian Bureau of Statistics, Census 1996, cat. no. 4705.0, p 9
34. 'Census counts, Place of Enumeration, Indigenous and Total Australian Population', Table 7, Population Distribution, Indigenous Australians 1996, Australian Bureau of Statistics, Census 1996, cat. no. 4705.0, pp 57-64
35. 'Summary of findings', Population Distribution, Indigenous Australians 1996, Australian Bureau of Statistics, Census 1996, cat. no. 4705.0, p 8
36. Bob Birrell, 'Intermix and Australia's Indigenous Population', People and Place, vol. 8, no. 1, 2000, pp 61-6
37. 'Religion, by State and Territory', Table 7.1, Census of Population and Housing: Aboriginal and Torres Islander People, Australian Bureau of Statistics, Census 1996, cat. no. 2034.0, p 78
38. Henry Reynolds, 'After Mabo, What About Aboriginal Sovereignty?' Australian Humanities Review, April-June 1996 (www.lib.latrobe.edu.au/AHR/)
39. Patrick Macklem, 'Indigenous Peoples and the Canadian Constitution: Lessons for Australia', Paper to Conference on Indigenous People in National Constitutions, Canberra, May 1993, p 41
40. Roger Martin, '22,000 years to claim their land', The Australian, 21 August 2001, p 8
41. Justice Blackburn, Milirrpum and Others v. Nabalco Pty Ltd and the Commonwealth of Australia, 1971, in Jean Malor (ed.) Federal Law Reports, Vol. 17, Law Book Company, Sydney, pp 169-71
42. The most revealing recent analysis of Herder's thought and influence is by Alain Finkielkraut, The Undoing of Thought, (trans. Dennis O'Keefe), The Claridge Press, Oxford, 1988
43. Bob Birrell, Federation: The Secret Story, Duffy and Snellgrove, Sydney, 2001, Chapters Five and Six.