Earlier this week, on May 23, 2017, 250 Aboriginal and Torres Strait Islander delegates met in Uluru, in the Northern Territory at the annual First Nations Convention. They discussed furthering indigenous rights and the possibility of a treaty or constitutional recognition of Aboriginal and Torres Strait Islanders under Australian law – like that of New Zealand and Canada. Many believe that constitutional reform and even a treaty would help improve indigenous rights. Whilst this is in accordance with the United Nations Declaration on the Rights of Indigenous Peoples, in the unlikely event that a treaty or reform occurs, it wouldn’t result in any significant improvement in indigenous affairs. This is because Australia has been one of the worst human rights offenders for several years up until 2017 according to the Human Rights Watch Report, in part due to its treatment of Aboriginals. Australia’s history and legislation have been largely discriminated against indigenous Australians up until today. Racism is rampant and visibly so. For any meaningful change to occur in the Aboriginal rights sphere the ideological, social and political beliefs surrounding the indigenous must change.
As the BBC reported, some such as Tasmanian Aboriginal activist and writer Mr Mansell believe the summit would create change, and a treaty would help provide a clear framework within which the government can negotiate issues such as health, education, employment, land ownership and welfare. He believes such a treaty is necessary to empower the Aboriginals. On the other hand, as NITV found, some Aboriginals such as Craig Woods of the Anangu (the community that owns Uluru Kata-Tjuta National Park) believes a constitutional reform would make no difference to his community. This is because they have their own constitution, the Tjukurpa which provides the law, culture and rulings of life for his people. Clearly creating national legal changes won’t be easy. This is understandable given that there are hundreds of different Aboriginal communities, each with different cultures, languages and religious beliefs and different state legislation on rights. Therefore, reaching a consensus on how Aboriginals should be recognized in law and what that entails won’t be easy.
Whilst constitutional recognition of Aboriginal rights is needed, a treaty is most likely unsuited to Australia given its racist and discriminatory legal, social and political infrastructure and history. As Mr. Mansell points out the Constitution of 1901 only mentioned Aboriginals to exclude them and discriminate against them. Furthermore, the Australian High Court only rejected the idea that Australia was terra nullius (‘ a land belonging to no one’) in 1992 after the 1991 report of the Royal Commission into Aboriginal Deaths in Custody showed the destructive effects of dispossession, colonization and institutional racism on Aboriginal people as the Australian Human Rights Commission (AHRC) noted. As the AHRC recounts the Racial Discrimination Act (RDA) of 1975 has been revoked 3 times to discriminate against Aboriginal and Torres Strait Islanders. The Northern Territory Emergency Response (NTER) of 2007 went further, completely disregarding the RDA to undermine indigenous land rights and autonomy of the 73 remote Indigenous communities in the Northern Territory. Aboriginals, uneducated and poor, are the most likely to be imprisoned and abused in prison. The optimism and gumption surrounding the First Nations Summit is admirable. Yet, when the racist slur ‘Abo’ is widespread and many still climb Uluru, the spiritual and symbolic icon of the Aboriginals even when asked not to, such radical legislative change is currently beyond reach. In such a climate, where aboriginals are actively discriminated in every way and racially abused, nothing can change until the ideology, rhetoric, and mindsets are changed.
As such, a treaty isn’t the best route towards fomenting aboriginal rights given the historical and institutional restraints and discrimination that have restricted Aboriginal rights today. Nor would a treaty be pragmatic or useful at this time. Changing the hearts and minds of a country and people that had a White Australia policy in some form from 1901 to 1973, and has actively and consciously discriminated and abused the Aboriginals, the non-whites, refugees and asylum seekers will take decades. Political and legislative changes will be painfully slow if the current direction continues. In light of this, it is almost laughable that Australia has been angling for a position in the UN Human Rights Council for 2018-2020. Perhaps the nation ought to reflect on its own actions before it goes preaching to others about human rights.