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What Good Condition? Reflections on an Australian Aboriginal Treaty 1986–2006

“…The Court had cited to it a case from the Tudor period, Villers v Beamont, 48 in which Dyer J (as he then was) held that legislation dealing with the rights of widows to property ought to be construed in their favour, as women had no representation in Parliament. Where there was legislative uncertainty as to meaning, it seemed that the same principle should apply in respect of the then disenfranchised Indigenous people of WA, but the Court did not advert to this point.…”

“…It remains only to note that the history employed by the Court (not being material argued) was at best unfortunate: the majority referred to the pre-1850 uses of tabling of colonial legislation, 49 leaving the impression that tabling was an old hat idea before the turn of the nineteenth to the twentieth century, when in fact the NSW Parliament introduced it into the NSW Constitution of 1902. Tabling was the requirement for certain constitutional changes.…”

“…In December of 1997, the Supreme Court of Canada gave its judgment in the case known as Delgamuuk'w. 48 While there was no determination on the specific question of the aboriginal title of the Gitxsan-Wetsuweten (a First Nation in northern British Columbia), the ruling had major ramifications for the treaty process which continue to be grappled with. The court encouraged 'negotiated settlements with good faith and give and take on all sides'.…”

“…The court encouraged 'negotiated settlements with good faith and give and take on all sides'. 49 The judgment then established a new context for such negotiations, by developing a clearer definition of aboriginal title: neither an inalienable form of fee simple nor mere usufructuary (usage) rights, it is 'somewhere in between these positions'. Aboriginal title is a right in land itself, and can encompass a range of practices 'not all of which need be … integral to the distinctive cultures of aboriginal societies'.…”

“…Again, the lesson from New Zealand is that the purpose of a treaty is 'about the future more than the past', which means that it is not mainly about ensuring adequate compensation for colonial wrongs (which is impossible), but 'planning a future' together based on creating new living relationships in this land. 48 This potential purpose of a treaty has at least two crucial elements: 1) enabling a new partnership by sharing power with Indigenous peoples; and 2) valuing dynamically through cultural renewal. In some respects, much of what the Council for Aboriginal Reconciliation tried to achieve from 1991 to 2000 relates to these points, although critics who thought that the issue of a treaty deserved more explicit attention earlier in the process of public education and community outreach have now been vindicated.…”