Treaty vs Recognition – the importance of self determination

The Treaty vs Recognition debate is an interesting one, although it probably still hasn’t received the attention and scrutiny that it deserves.

The push for Treaty is older than any of us, but it has risen to prominence again largely from the frustration felt by many with how the Recognise campaign has been rolled out. People feel that it is a top down campaign blindly promoting a ‘Yes’ vote in a referendum that still doesn’t have a question for us to say yes or no to. In this sense, it comes across like government asking us to sign our names to a blank piece of paper that they will fill in later. Such a request is entirely reliant on a goodwill between government and Indigenous peoples that doesn’t really exist.

Constitutional law is the most complicated area of law that exists in Australia, and even the role of the Constitution itself is not very well understood by many who are not Constitutional lawyers. Talk of removing the ability of governments to deny voting rights on the basis of race, for example, sounds good but simply isn’t true. It may be written into the Constitution, but there are other fail safes which mean that no government could actually turn around tomorrow and declare that Aboriginal people, or any other group, no longer have the right to vote. Removing this clause makes the document look better, and makes us feel like we live in a less racist country, but it doesn’t actually change anything.

This is fundamental to the fear held by many, that Constitutional change is simply a process that looks good, and makes people feel good, but that doesn’t actually change anything. Symbolism without action or consequence. A lot of money and energy spent for a superficial makeover.

It is true that it need not be a question of Treaty or recognition and that we could have both, but is a Treaty something that people will feel a need to do once we have been ‘recognised’? Is it something that government would put as much money behind, or something that would get bipartisan support? And just as importantly, is it a process that we want driven by governments, or is it something that should be driven by Indigenous people ourselves?

I think this a crucial reason why Treaty looks more appealing than Recognition. Treaty has long been a grassroots campaign whereas Recognise has been turned into an astroturf campaign, one driven by government and supported by major corporations. Treaty empowers Aboriginal people in the process as well as in the outcome, whereas Recognition is one that many have felt disempowered within, and are not confident that it will empower people after the fact either.

I think this is fundamentally where the idea behind the Recognise campaign went wrong; pushing for a Yes vote before the fine print was ironed out. This strategy can work in a grassroots campaign, but not in an astroturf campaign. In order to put a Treaty on the table its supporters need to make people aware of what it could be, and need to make people feel that it is a process Aboriginal people ourselves want before we are able to work out what it will be. Constitutional change, on the other hand, would have benefited from more debate and discussion on the Expert Panels recommendations and then followed that up with community forums to allow it to be shaped by Aboriginal people, and hence create a sense of meaningful ownership within the process. Then it might have felt like a grassroots campaign where we all got behind it to convince the rest of Australia that it was in everyone’s best interests.

Framing the Recognition debate as a yes or no question, I think, has backfired because many of us know that it isn’t a yes or no question, not at least until we have specific changes being proposed to say yes or no to. Recognition within the Constitution can be symbolic only or it can be meaningful yet this is something that many people seem largely unaware of. This approach put all the eggs into one basket, a basket where it was hoped that people wouldn’t get caught up on the details of what will eventually be included in the referendum, but instead would be swept in the push for change. It worked for Obama in his campaign. ‘Change’ sounds great, but for many Aboriginal people there is an inherent distrust in governments, and given the last few decades of how Indigenous affairs has been mismanaged by government it is easy to understand why it has failed to capture the imagination of many.

As it is though, it has been necessary to put Recognise on the back burner and bring forward the Constitutional Referendum council. It was a smart move given the growing disinterest in the Recognise brand, but it will also need to have the open and meaningful series of Indigenous community forums to validate it and create that long missing sense of being a self-determining process driven by Indigenous people but embracing all Australians.

The media cycle is quickly moving on from blindly supporting Constitutional change and has begun looking for new angles, which is why we are seeing more media content exploring the controversy, like the awesome Lateline video doing the rounds on social at the moment, featuring Nayuka Gorrie.

The arguments being made for Treaty, and the way it is being framed as fundamentally distinct from recognition, will be very hard for the Constitutional change process to ignore or to incorporate, despite public facing efforts slowly shifting from ignore to embrace.

Australians like an underdog, and Treaty is definitely the underdog to Constitutional change at the moment. Neither campaign will ever win over the far right, but Treaty, unlike a referendum, does not require a majority of people in a majority of states to be won. It just requires a government who are willing to enter into one. This is already under way in Victoria, and if other states join suite it will be very difficult for the Federal government to ignore it.

A referendum has another 12 months or so to prove itself winnable, whereas Treaty can and will wait as long as needed. This is important too because it may need to wait for a government that doesn’t contain people like Cory Bernardi, and not just those individuals but the brand of politics they represent, one which has become increasingly popular of late; fundamentalism masked as patriotism. In this climate it is hard to argue for anything that allows Aboriginal people to be seen as equal yet distinct. This climate can work in the favour of Recognition much moreso than it can for Treaty though. Recognition can frame itself as ‘replacing us and them for we’, and such rhetoric that can be shaped to appeal to racists and anti-racists alike. Treaty, on the other hand, forces Australia to acknowledge that Aboriginal people as a whole will never disappear, never be absorbed or assimilated, and will never be ‘just Australians’. It forces Australia to recognise as equals in a way that explicitly removes the idea of assimilation as a means of achieving equality.

The Congress of Australia’s First Peoples just released findings from a survey of their members saying that 68% would prefer Treaty before a referendum. The IndigenousX survey last year was even less optimistic for the chances of success of symbolic Constitutional change.

The last cards recognition has in its deck is shelving Recognise in favour of the Referendum Council, and having success with the Indigenous community forums which long been promised, but have yet to be delivered. If these moves fail to capture the hearts and minds of Indigenous people across the country and the push for Treaty continues to grow, then I can only imagine any referendum, even one that offers more than just symbolic change, will face a very uphill battle when (or if) it is taken to a vote.

Even then, that eventually just opens up the question of what would be in a Treaty, who would negotiate it, and how it would be enforced…

I don’t like to preempt process, so I will not commit to a yes or a no on a referendum until there is something to actually say yes or no to, but I am increasingly of the suspicion that it is fast becoming too far gone to salvage. This is the challenge that the referendum council will need to overcome if they are hoping to gain sufficient support from Indigenous people across the country. The Indigenous led consultation process will be the last chance for this to occur, but even then I think there will still be a large number of people too disengaged with the process to be won around easily. Building trust takes time, rebuilding lost trust takes even longer, and if the referendum commits itself to May next year, I’m not sure that there will be enough time to achieve what is needed for a successful yes vote.

If it fails, it will have been a lot of money and energy wasted, but its failure may provide the needed catalyst to gain popular support for a treaty.

It’s gonna be an interesting twelve months either way, and all I would say to people reading this is to keep your eyes and ears open, and apply a critical lens to everything that happens from here on out.