Treaties, Agreement Making and the Recognition of Indigenous Customary Polities (original) (raw)

Aboriginal Recognition: Treaties and Colonial Constitutions, ‘We Have Been Here Forever … ’

Bond Law Review, 2018

Excerpt: I have been asked by the editors of this special edition of the Bond Law Review, themed 'The Law and Politics of Control and Power' , to reflect upon the significance and legacy of the Commonwealth of Australia's 1967 referendum. I will do this from a critical First Nations stand point. In doing this I acknowledge the efforts of those people who worked on bringing about the 1967 referendum, in the hope that it would provide relief to the critical position of First Nations peoples at the time. The approach I take, or the stand point from which I speak, is centred by and in relationship to the ruwe of my ancestors: the Tanganekald, Meintangk and Boandik Peoples of the SouthEast of South Australia.

The Absurd Proposition of Aboriginal Sovereignty

Law and Agonistic Politics, 2009

In Australia in the 1990s, ‘reconciliation’ emerged as an organizing discourse for political debate and policy-making in relation to Aboriginal affairs and the unfinished business of decolonisation. Unlike in countries such as Chile and South Africa, however, reconciliation was not pursued in the wake of a new constitutional settlement. Rather, reconciliation was proposed as an alternative to a treaty (between indigenous people and the state), which had been pursued by Aboriginal activists (at least) since the 1970s. Conservative and Labour governments entertained the proposition of a treaty or ‘Makarrata’ in the 1980s. By the 1990s, however, the claim to Aboriginal sovereignty, which underwrote the demand to negotiate a treaty, was deemed unreasonable by both major political parties. During the debate about a treaty in 1988, John Howard (Australian prime minister, 1996– 2007) declared: ‘It is an absurd proposition that a nation should make a treaty with some if its own citizens. It also denies the fact that Aboriginal people have full citizenship rights now’ (Howard 1988, 6). In this chapter, I take Howard’s notion of an ‘absurd proposition’ seriously as a characterization of the ‘agonic relation of colonial governance vis-à-vis indigenous resistance’ in Australia (Tully 2000, 13). In particular, I unpack the sense in which the clam to Aboriginal sovereignty might be characterized as an absurd proposition in terms of Lyotard’s conception of the differend and Jacques Rancière’s conception of disagreement.

Treaty as a Pathway to Indigenous Controlled Policy: Making Space, Partnering, and Honouring New Relationships

Public Policy and Indigenous Futures, 2023

As several Australian jurisdictions embark on Australia's first treaty processes there is growing recognition of the extent to which treaty will recast Indigenous-state relations. The negotiation of treaties means the recognition of other sovereign authorities-not authorities to be created (as these have existed for millennia) but authorities that will require space to be exercised alongside the state. Bureaucracies that have understood their role as primarily one of service delivery to First Nations will have to reorient themselves to become treaty partners with First Nations seeking to exercise greater control and autonomy. While we cannot yet predict the outcome of these negotiations, nor is it appropriate for us to attempt to articulate First Nations' priorities, it is likely that, over time, treatied First Nations will seek to rewrite the policy relationship with government, pursuing autonomy and self-governance in the place of state authority and control. This chapter explores the possibilities and challenges of transforming public policy-making through treaty, arguing that it will take time to rewrite the partnership manual and enable genuinely Indigenous-controlled policy to become the new political norm.

The Social Construction of Indigenous `Native Title' Land Rights in Australia

Current Sociology, 2007

Legal scholars and political theorists dominate academic writing on the issue of indigenous peoples' rights. This article, however, adopts a sociological approach, analysing indigenous rights in Australia as a socially constructed phenomenon, the product of ideals, entrenched colonial structures and the balance of power between political interests. It shows how, during rights institutionalization processes, ably aided by a receptive government and media, commercial lobby groups constructed propaganda campaigns to further their interests to the detriment of indigenous interests. The resultant legislation was an exercise in rights limitation behind a veneer of agrarian reform. The article concludes by highlighting the tension between national rights regimes of this nature and international human rights norms and suggests an approach that could overcome this problem.