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Box 2574 :: :: Olympia, Wa Fido Net 1:352/333 :: :: 98507-2574 206-786-9629 :: :: USA The Quarto Mundista BBS :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: THE MAKARRATA - SOME WAYS FORWARD National Aboriginal Conference Position Paper delivered to The World Council of Indigenous Peoples Canberra, 1981 This paper is a report on the current status of the Makarrata and the further plans of the National Aboriginal Conference (the "NAC") with respect to it. It will deal essentially with conceptual issues involved in negotiating the Makarrata, although some comment will be made upon its content and the process by which it could be negotiated. CONCEPTUAL MATTERS. In Australia at the moment it appears that the two proposed parties or signatories to a Makarrata - the Australian Government and the NAC - have different concepts of what it means and involves. On the one hand, we the Aboriginal people plainly think of it as a treaty with the Aboriginal Nation. This became clear during a recent tour of Australia by the Makarrata committee when it visited many communities to hear Aboriginal views on the issue (1). On the other hand, it seems that the Australian Government - as advised by the federal Attorney-General (2); sees the Makarrata simply as a normal contract with a special group of Australians. The significance of the Government's positions is that it hopes to have the Aborigines accept from the outset of the negotiation of the Makarrata that they are part of the Australian nation as a whole and thus by implication to waive the effect of the Aboriginal concept of nationhood and its consequent effect upon the form the Makarrata should take. However, we as Aborigines maintain that our nationhood is a matter both of fact and of law. We have already referred to the views of the Aborigines whom we had have canvassed on the issue, while we intend during the course of this paper to discuss the legal implications of the matter. We consider that such a conceptual formulation of the issue is necessary because of its impact on the form, effect and content of the Makarrata. INTERNATIONAL ENTITY First, some background on international legal developments is necessary. The period since World War II has seen the self determination of the Third World of formerly colonised countries. This has led to a growth of international law on the issue of self determination to a point where the concept is now established in international law. The law of self determination emerged because it was asserted as a fact. Such law was established in the face of a concept of international law as a regime which only governed relations between established nation states. It has been one of the first moves towards the re-establishment of some principles of equity and justice in international law (3), after several centuries of the limitation of international law to justifications of international aggression and exploitation by Western nations, of the people of the rest of the world. The emergence of such a law of self determination has provided a basis upon which not only the Third World, but also the Fourth World of internally colonised indigenous minorities may base a case for their liberation. It is clear that international law will continue to develop with a view to recognizing and assisting the claims of these previously unrecognized national entities and organisations. Thus it is only upon the basis the Aborigines have an ongoing right to be recognised as an international entity that they can come to the negotiating table. The Aboriginal people therefore require that the Australian Government recognize their international standing. The "convenient false hoods"(4), surrounding the legal interpretation of how Australia was settled, as described recently by a jurist of the High Court of Australia, are not necessarily established law and thus there is no impediment to the Australian Government recognizing the Aboriginal Nation as an international entity with which it may treat. Equally, it is still arguable that there is no impediment to the Australian courts recognizing in due course that, in accordance with principles espoused by the International Court of Justice in the WESTERN SAHARA CASE (5), sovereignty has always resided in the Aboriginal people. This would permit the negation of the idea that Australia was settled by Europeans on the basis that it was unoccupied land or what lawyers call TERRA NULLIUS (6). The national courts of Australia need only be bound by restrictive justifications such as the law of prescription (by which title to land is acquired simply by the passing of time), if they so choose (7). Furthermore, as has been indicated, even in international law it is not necessarily considered that such a principle will prevent the recognition of national minorities in due course. The impact on Australia's constitutional law of a declaration by the Government or a court that Aboriginals may treat as an Aboriginal Nation, will be to allow the enactment of the proposed Makarrata as a law having effect throughout Australia by virtue of the Australian Government's paramount power over matters concerning external affairs (8). No doubt such a result would not be without challenge in the national courts, but as it is one important effect of the nationhood which we assert, it must be followed up and cannot be jeopardized at this stage by compromising our international status. Before leaving this matter, we emphasize that the recognition of our international status is not dependent upon these kind of legalisms but nevertheless it is obvious that it would facilitate their use. It is only the Aboriginal people who have so far suffered the brunt of legal fictions. CONSTITUTIONAL AMENDMENT Notwithstanding the discussion so far, we still maintain that our nationhood is fundamental to our bargaining position even if we are to entertain a Makarrata, the implementation of which is based upon the only other source of power which we presently see as possible. That is the idea of a constitutional referendum (9). Once again, this idea was one of the suggestions Aborigines put forward at the meetings recently conducted around Australia by the Makarrata Committee. The constitutional issue arises because at the moment the main obstacles to the Makarrata are the Australian States, while the first goal of the Makarrata is the attainment of land rights. The only effective way of therefore achieving our objective is to obtain constitutional authority to the effect that the matters agreed in the Makarrata may be implemented by the Australian Government and that the land which is handed over in any settlement either is not the subject or "just compensation" to the States concerned, or at least that only the surface value, not including the value of minerals underneath, is to be assessed. After all, they got it for free! Accordingly, we suggest that an alternative form of implementation of the Makarrata would be an agreement in which either as a condition precedent to the negotiation or execution of the agreement, or as a binding term of it, the Australian Government seek and obtain constitutional authority as outlined above and as otherwise necessary. We believe that, given the way in which the Makarrata has captured the imagination of Australians and is continuing to generate their support, such constitutional authority will be granted as it was in the 1967 referendum on Aboriginal matters. Thus, if we were to move to a position where we negotiated as an international entity but relied on constitutional amendment to enforce the settlement, even though we would not be negotiating exactly in the capacity as would another foreign nation, we would still wish to assert our international identity as a people within Australia, although of course such an entity is not geographically defined within Australia. It must be realised we cannot commence negotiation of a treaty designed to improve our situation when by that very act we surrender the distinct character which is the very reason why the negotiations are necessary. In this sense the federal Attorney General's advice (referred to earlier), to the effect that our sovereignty should not be recognized, is a regressive assimilationist view. As the first Australians, our existence as an international entity can be asserted without falling foul of separationist divisions within modern Australians. Those divisions already exist. We seek to rectify them by discrimination in favour of us rather than against us. Accordingly, if negotiations are to commence, we at least require recognition as a domestic nation in a manner similar to the legal recognition accorded to American Indians over a century ago (10). Alternatively, if we are to negotiate without obtaining such recognition, then we may have to expressly reserve in the Makarrata the issue of our international status. Such status cannot be surrendered, either expressly or by implication, due to our responsibility to future generations who may wish to assert this nationhood in national or international forums. For instance, if any Makarrata that is to be negotiated was later found insufficient by Aborigines, or was dishonoured by the Australian Government, then any agreement which waived our assertion of nationhood would itself be a further impediment to international redress. It is no doubt for this reason that the Dene Nation of North America, in the discussions being held on a treaty between them and the Canadian Government, refuse to compromise their national sovereignty (11). Although either of the processes of or negotiation outlined above are open to the possibility of rebuff by either the judiciary or by a referendum, we consider options must at least be attempted, as they offer the most fruitful prospects in what is otherwise a legal and constitutional mudhole. We know there are many other options that could also be utilised if the current avenues are closed off. Amongst other, we feel that the Australian Government, if serious in its declared intent to assist us should at least take a bold initiative and attempt to ascertain (by a test case if necessary), the extent of the Government's constitutional power to make special laws with respect to any race of people. NAC'S STANDING Prior to any negotiations, the Australian Government should also legislate to give the NAC corporate standing and statutory functions so as to enable it to negotiate on behalf of Aborigines throughout Australia. The heavy responsibility of seeking directions from Aboriginal people on the form and content of the Makarrata should be recognized in the legislation by providing it with a secure source of funds which is not subject to political limitation. Equally, safeguards should be provided in the law by granting rights to the rank and file Aborigines to allow them to take action to control their organisation if it appears that any particular persons or organisations are been subjected to the sort of political pressure which has already been seen in the case of other Aboriginal organisations negotiating with the Government. If the Prime Minister is not prepared to make these first substantive moves, then his good faith must be queried and we wonder whether his offer to entertain a treaty is only a ploy to defuse the Aboriginal issue, promote his own international standing in the Black nations of the world, and to further the status of the NAC as an organisation set up by his own government. NAME It is in this context that the name Makarrata is somewhat significant, as is the meaning given to it. Obviously, the Attorney - General does not want the word "treaty" used because of the international connotations it has. It is precisely for this reason that Aborigines must consider the issue carefully. The use of the word "treaty" would assist to a small degree with the assertion of national status, although it is true that whatever name is used can be given the meaning which the parties to the agreement decided that it should have. It is therefore suggested that, if the word Makarrata is to be used (and we note that Aborigines appear to have 'equal preference for the term "treaty") then the problem could be overcome by defining it as a treaty between the two parties in whatever capacity they agree should be accorded to each of them. PROCESS All that has been said so far has been mainly concerned with the conceptual issues surrounding a Makarrata. Obviously, despite this discussion, these issues will have to be debated and all options canvassed by Aborigines before any formal proposals can be made to the Government. Even then, the negotiating strategy followed and the issues that are put forward will vary depending on the colour of the Government-of-the-day. In addition to the matter of the form of the agreement as so far discussed, other important issues to be considered are the PROCESS of reaching agreement and of course, its CONTENT. The proposed content of the Makarrata has already been adequately outlined in the report of the Makarrata committee and it is not proposed to deal further with the matter in this paper, except to say that the pamphlet to which we refer should be liberally interpreted. However, with respect to process, one procedure has been suggested which we consider merits consideration (12). This procedure could, we believe, be built into the NAC legislation we earlier suggested was necessary to allow negotiations to take place. The suggested procedure is as follows: STEP 1: The NAC commission from the best persons available "position papers" setting out the options which need to be considered before negotiations begin. These could cover: * form of the agreement; * land rights; * compensation; * protection of Aboriginal identity, law, religion and culture; * guarantees of non-discrimination; * Aboriginal self-management - especially in relation to Education, law and order, Health services, Social Service benefits; * Aboriginal political, administrative and financial organisation; and * procedures for enforcement of the provisions of the agreement (e.g. international arbitration). STEP 2: The NAC commission simply expressed summaries of the best papers for circulation in print and on tapes among Aboriginal organizations and communities. STEP 3: The NAC calls a Convention of representatives chosen by recognised Aboriginal organizations, communities & traditional groups to discuss the position papers. STEP 4: The Convention representatives should return to their organizations to report to their constituents. STEP 5: The NAC recalls the Convention to consider a first draft of the Makarrata or Treaty for submission to the Government. STEP 6: The Convention then stays in existence so that it can be recalled as necessary before and during negotiations to consider issues as they arise (possibly by resort to the same steps as above) and finally to approve or reject the agreement provisionally made by the negotiators. CONCLUSION Finally, before leaving the matter of the process to be used, it is important to observe that the consultation, research and negotiations would take place over a period of several years. There must be no quick solutions or political pressure to achieve a solution which could be presented as an achievement by any Government. Although it is inevitable that individual reputations will become associated with the concept of a treaty and its negotiation, we wish to avoid the conciliatory trap involved in seeing the achievement of conducting negotiations in itself. The negotiations will only be a means to our ends. FOOTNOTES (1) See the Trip Report contained in the document entitled MAKARRATA REPORT by J.P. Hagan (Eleventh Executive Meeting, Canberra). (2) See a copy of the opinion contained in the NAC document entitled "Report of the Makarrata Workshop" 8-12 December 1980. (3) For one discussion of the international perspective, see G.J.L. Coles "The International Significance of an Aboriginal Treaty" ANU Seminar paper, 17 July 1980. (4) See the Judgement of Murphy J. in COE v. COMMONWEALTH OF AUSTRALIA (1979) 53 ALJR 403. (5) ADVISORY OPINION ON WESTERN SAHARA I.C.J. Reports 1975. (6) For further discussion of such matters see: B. Keon Cohen, "The Makarrata - A Treaty within Australia between Australians - Some Legal Issues" CURRENT AFFAIRS BULLETIN Vol. 57, No. 9, p.4; H.C. Coombs "The Proposal for a Treaty between the Commonwealth and Aboriginal Australians", CRES Working Paper, ANU, Canberra. (7) See WEST RAND CENTRAL GOLD MINING CO. LTD. v. THE KING (1905) 2 K.B. 391 at 407. (8) See a discussion of the extent of this power in R.D. Lumb and K.W. Ryan THE CONSTITUTION OF AUSTRALIA Butterworths 1974 at p.145. (9) This was suggested by the Aboriginal people at Kalgoolie at an NAC sponsored meeting reported on in (10) cf. CHEROKEE NATION v. STATE OF GEORGIA (1831), 5 Pet. 1 at p.17 per Marshall C.J. (11) See D. Barwick "Making a Treaty: The North American Experience", being a paper prepared for the Aboriginal Treaty Committee, at p.11. (12) See letter dated 22 September 1980 from Dr. H.C. Coombs to the NAC chairman Mr. J.P. 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