Macklin, Michael --- "The Makarrata-Democrats' Policy" [1982] AboriginalLawB 54; (1982) 1(5) Aboriginal Law Bulletin 16

• The Makarrata –Democrats’ Policy
• Treaty Commitments Elsewhere

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The Makarrata –Democrats’ Policy

by Michael Macklin

The Australian Democrats support the concept of a Treaty of Commitment between Aboriginal and European Australians. In a vote of Party members taken in September, 1978, the Australian Democrats adopted as a policy item the following:

To ensure justice, the Aborigines require a Treaty of Commitment between the European Australians and the Aboriginal Australians, aimed at making compensation for our dispossession of the Aborigines' land and culture. Such a treaty would be agreed on by all major Australian political parties and would be the basis of a continuing commitment to the quality of life of Aborigines. It would be free from political bargaining, and a major step towards true social justice for all Australians.

The central aims of such a Treaty should be:

1. to acknowledge Aboriginal land rights;
2. to compensate Aborigines for the loss of those traditional lands which cannot now be restored to them; and
3. to enable Aborigines to have a greater say in their own affairs, thereby restoring dignity and satisfaction to their lives through self-management and self-determination.

In 1978, the Australian Democrats' Policy Papers adopted as a basic premise the motion of Senator Neville Bonner, which was passed by the Senate in February 1978:

That the Senate accepts the fact that the indigenous people of Australia, now known as Aborigines and Torres Strait Islanders, were in possession of this entire nation prior to the 1788 First Fleet landing at Botany Bay . . . and urges the Australian Government to admit prior ownership by"said indigenous people and to introduce legislation to compensate the people now known as Aborigines and Torres Strait Islanders for dispossession of their land.

During the following year, the National Aboriginal Conference, made up of Aboriginal representatives from throughout Australia, called for a Treaty ,to be negotiated between the Aboriginal people and the Commonwealth Government. Since then, a growing number of European Australians have indicated their support for the Treaty. An Aboriginal Treaty Committee, headed by Dr. H.C. Coombs, has directed its efforts towards arousing the consciousness of European Australians in regard to the necessity for the Makarrata. Treaty groups now exist throughout Australia.

The basic premise contained in Senator Bonner's motion - that Aborigines and Torres Strait Islanders were in possession of this entire nation' prior to 1788 - has never been formally acknowledged by the colonising powers or by the subsequent governments of Australia. Instead, the Australian continent was considered by Europeans to have been `discovered and settled' rather than `conquered', as if there had been no organised society or system of government prior to the First Fleet landing. We now know, of course, that throughout the continent of Australia the various indigenous peoples had established laws and institutions which were not based upon the European models of government but which were, nevertheless, admirably suited to the needs of the communities and the exigencies of the Australian environment. We know too of the countless brave struggles of the Aborigines against the overwhelming might of the dispossessors. In short, the structure of European occupation in Australia rests upon the invalid foundation of 'settlement of an ownerless land'. The taking of Aboriginal land by conquest over the past two hundred years makes a mockery of s.51 (xxxi) of the Australian Constitution, which mandates the 'acquisition of property' on 'just terms'.

Treaty commitments elsewhere

Although it is true that the treaty commitments made in New Zealand, Papua New Guinea, Canada and the United States were broken with appalling regularity by Europeans, the fact remains that the inherent land rights of the indigenous people were formally acknowledged. As a consequence, the nation-to-nation encounters which followed European occupation in these countries, while often marred by European guile and breach, demanded a respect for the rights of indigenous peoples which was conspicuously lacking throughout the European 'settlement' of Australia.

The ultimate aim of the Australian Democrats' Aboriginal Affairs policy is the inclusion of Aboriginal culture into the currently developing Australian culture. This does not mean 'assimilation' or 'integration', which have always resulted in the eventual loss of the indigenous culture and life-style in every country in which it has been practised. Rather, the Democrats' policy favours the continuation of traditional life-styles by Aboriginal groups who so choose. Unlike the pernicious South African policy of apartheid, there is no intention to impose upon Aborigines any degree of segregation from any other ethnic group in Australia; nor will there be any imposed assimilation. The Democrats' aim is to enable Aborigines, as individuals, or as communities, to choose varying degrees of integration into the general Australian culture and life-style. To further this objective of self-determination, the Australian Democrats favour the appointment of Aborigines to senior positions throughout the Department of Aboriginal Affairs.

The High Court of Australia hasrecently ruled (in Koowarta's Case, see (1982) 4 Aboriginal Law Bulletin 8) that the Federal Government has the constitutional power, under the external affairs provision of the Constitution, to implement legislation to give effect to Australia's ratification of the UN Convention on the elimination of all forms of racial discrimination. In the words of Stephen J, 'As with slavery and genocide, the failure of a nation to take steps to suppress racial discrimination criminaton has become of immediate relevance to its relations within the international community'. The High Court's upholding of the Racial Discrimination Act 1975 has broad ramifications for future Commonwealth legislation in regard to Aboriginal Affairs generally.

The relevance of North American models The Australian Democrats would seek Land Rights legislation, modelled on North American Land Claims legislation, which would be implemented by a National Aboriginal Land Claims Commission, entirely composed of Aborigines. Land Rights legislation will enable tribal and semi-tribal people to establish their chosen life-styles, and so regain their dignity. However, such legislation may not be practicable for those people who are completely alienated from their land. Where traditional lands cannot be restored, compensation is necessary for dispossession and for the damage to the alienated people's way of life. Claims to this Compensation Fund will be made through an all-Aboriginal and Torres Strait Islander Claims Commission, similar to the North American Indian Claims Commission.

The Australian Democrats support the formation of a National Aboriginal Mining and Industrial Council which will negotiate, as a party principal, with any company planning mining or other industrial development in Aboriginal lands. Occupants of tribal lands should have the power to refuse to permit mining after being presented with the full facts, including the economic, social and ecological effects of building towns near mines on Aboriginal land.

It is hoped that the Democrats' specific objectives, set out above, could be implemented within the framework of the Makarrata. However, the Australian Democrats favour the enactment of these legislative proposals as soon as possible, while the precise terms of the Makarrata are negotiated and finalised. Once the Treaty is adopted, legislation effecting Aborigines and Torres Strait Islanders must be reviewed and revised, as necessary, so as to be consistent with the overriding requirements of the Treaty.

In South Australia, the Pitjantjatjara Land Rights Act 1981 provides a model for progressive legislation which should be considered by the other States and Territories of Australia. But as the Pitjantjatjara Council itself stated, 'our work is not finished'. There must be uniformity of justice for Aborigines throughout Australia.

Unless and until the Commonwealth Government takes up the challenge of recognising the Aborigines' rightful ownership of Australian land prior to the European dispossession, the tragedy and deception - including self-deception - of the past two hundred years will persist. Without the Makarrata, the European settlers of Australia will stand condemned in history for their continuing failure to incorporate within the highest laws of our land the simple recognition that a proud and ancient people were the proprietors of this continent for thousands of years before it was taken from them by force and by guile.

The late Professor Stanner noted, and we acknowledge, that 'we can neither undo the past nor compensate for it. The most we can do is to give the living their due'. The Makarrata would establish the basis for all future negotiations and legislation in• matters affecting the joint interests of Aboriginal and European Australians - from land rights and compensation to social services and recognition of customary law. As such', it would be the single most important step ever taken in Australia to give 'the living' - today's Aborigines and Torres Strait Islanders and their descendants to come - their due. Surely at last the Commonwealth Government can respond to the cries for justice which have echoed for so long across this continent and offer to treat - as one nation to another - for the adoption of the Makarrata.

Michael Macklin is an Australian Democrats Senator