As printed in Opinion, The Australian, 12 December 2000:

The 'folly of disunion' urges us onward

Indigenous Australians deserve a formal agreement, argues David Cooper

In his recent book on Australia's Federation in 1901, John Hirst points out that Australia is unique: the creation of our nation was not the result of any external threat or pressure, but one in which the communities of six separate British colonies voluntarily decided to unite through a "conviction of the folly of disunion".

Such a conviction would again serve us well as we consider the future of the reconciliation process and the wisdom of Indigenous and non-indigenous Australians uniting in formal dialogue. One hundred years after Federation, Australia might finally eschew the folly of disunion and join other Commonwealth countries in negotiating a treaty with its Indigenous peoples.

Rather than being divisive, as some contend, treaty negotiations would achieve the goal of a truly unified nation, a goal Federation failed to deliver because it excluded the interests of Indigenous peoples. The stark reality is that we remain a nation divided. One group comprises those for whom citizenship has delivered rights and responsibilities commensurate with their social and cultural norms. A second group includes those for whom citizenship remains problematic because their distinctive cultures and inherent rights as Indigenous people have never formally been recognised within the Constitution or the majority of laws and practices of the nation.

The choice we all face is whether to tolerate a continuation of such division, with all the conflict and heartache it entails, or seek to finally unite our nation by negotiation and mutual agreement, in much the same way as was done for Federation.

As with Federation, treaty negotiations would not be merely a symbolic step (although the symbolism of the initiative would be profound indeed), but would entail practical outcomes and benefits.

A treaty process will increase certainty. This is important for both economic and community development. Treaty agreements reduce or put an end to conflicts over lands and resources between Indigenous peoples and others. When disputes do arise in the future, treaties provide an agreed-upon process for resolving them.

Treaties also give much needed certainty to Indigenous people, in that their rights are entrenched in a form that cannot be wiped out by the next hostile government with a temporary majority. Because treaties are developed by and agreed to by the parties themselves, they provide lasting solutions.

Indigenous leaders have made it clear that in seeking treaty negotiations, they do not seek to take away any of the existing rights or land of non-Indigenous people. There would be some form of financial settlement, but this must be balanced against the costs of not settling these issues. Even without treaty negotiations, significant expenditure will be required to redress the appalling living standards and lack of opportunities faced by many Indigenous communities. The failure to properly address issues such as rights to land, the protection of Indigenous heritage and the stolen generations, will continue to cost tens of millions of dollars in unnecessary litigation, not to mention the significant social and indirect economic impacts of failing to resolve the problems.

Indigenous spokespeople have suggested that a treaty process might take the form of a network of regional and sectoral agreements within a constitutional pathway, or a series of agreements which are negotiated for geographic areas or on certain issues.

Some have argued that we should begin with a national framework agreement to decide issues of unfinished business.

The kinds of Indigenous concerns which have been raised repeatedly over recent years include: constitutional recognition and protection of Indigenous rights as First Peoples; recognition of traditional customary law within the Australian legal system; protection of Indigenous cultural heritage; economic and social development; land and resources; self-determination and self-government.

However, it would be inappropriate at this stage to prescribe the issues of 'unfinished business' for two reasons. First, no process has yet been undertaken to enable Indigenous people to identify and agree on them. Second, what is put on the table for discussion is ultimately a matter for those at the table.

That said, there is much to be gained from examining the Canadian treaty experience, a nation similar to our own in many respects. More than a decade ago, Canada faced two options: either negotiate land, resource, governance and jurisdiction issues through a treaty process or pursue the litigation path and have Indigenous rights and title decided on a case-by-case, right-by-right basis.

The Canadian province of British Columbia chose the option of treaty negotiations enabling multiple treaties and provides a useful model for Australia (further details at www.bctreaty.net). The US, New Zealand and Finland offer other successful alternatives. The successes of Canada and other countries were achieved through giving a great deal of thought and discussion to preliminary issues of process. Success in Australia will similarly depend on the quality of preparation, and will require a staged process, with plenty of time allowed.

In fact, Australia has more to build on than Canada had. Since the introduction of the Native Title Act, many agreements have been formulated between Indigenous communities and state governments on issues such as health and education services. We as a country have gradually been developing a culture of agreement-making between Indigenous communities, organisations and government.

The decision is ours to finally achieve the kind of unified and reconciled nation which has so far eluded us.