Introduction

The following critiques an article by Mick Dodson published Unfinished

business: a shadow across our relationships. This article was published 2003.
The ultimate point in this article is that Australia needs a treaty with the
Indigenous and Torres Strait islander people. The following endeavours to
discuss the key concepts bought forward in this article.

Summary

The article unfinished business: a shadow across our relationships by Mick

Dodson (2003) discusses the important concept regarding a treaty between
Indigenous Australians and the Australian government, the article examines
means in which a treaty could be constructed and why it is necessary for the
Australian government to have a treaty with the Indigenous and Torres Strait
Islander people of Australia.

To quickly summarize a treaty can be defined; the word treaty, therefore,

covers a broad range of concepts, including contract or compact, a covenant,
an agreement, a settlement, or international arrangements between nation
states. In so doing, it acts to regulate a variety of relationships, depending on
the nature of those relationships.

This article explains what is meant by unfinished business, illustrates why a

treaty is needed, examines several ways in which a treaty could be legally
constructed and discusses the Australian constitution, stating that
amendments could be made to section 105B following the framework of the
amendments that were made in section 105A as a guide in order to establish
a treaty.

No formally binding treaties were ever negotiated with Indigenous peoples in

Australia whereas hundreds were signed with Indigenous people in North
America and New Zealand (Council for Aboriginal reconciliation, 2014) and
thus the authors intention throughout this article is ultimately to draw
attention to the fact that there is unfinished business regarding the
Indigenous people of Australia and how this unfinished businesses is pivotal
to the process of negotiating a treaty or treaties (Dodson, 2003)

It is evident that there are other authors who agree with his ideas regarding
framework to construct a treaty, however it also evident that there are others
who feel a slightly different approach would be more beneficial regarding a
treaty between the Australian government and Australian Indigenous and
Torres Strait Islander people.

Critique

Dodson (2003) begins his article by explaining why there is a need for a
treaty. He claims the reason a treaty is needed is because there are a number
of aspects regarding the British invasion, which although they are now not
seriously challenged, remain important. To begin with Dodson (2003) states
that the rights of the Indigenous people of Australia were never formally
recognized by the invaders, their descendents or previous governments.
Consequently the rights of the Indigenous people of Australia been affected
by a unbalanced relationship with the newcomers who viewed them as
primitive and thus decided they had no rights and no concept of what a
civilized society was.

The fact that a treaty is needed is further capitalized by Williams (2013) who
states that Treaties and other forms of agreements are accepted around
the world as the means of reaching a settlement between Indigenous
peoples and those who have settled their lands. Australia is the exception.
Australia is now the only Commonwealth nation that does not have a treaty
with its Indigenous peoples. Australia has never entered into negotiations
with the Indigenous people of Australia about the taking of their lands or
their place in this nation.

The benefits of a treaty as described by the Australian human rights

commission (2012) include; agreed standards, a framework for settling
relationships between Indigenous peoples and governments at local, regional,
state, territory and federal levels, legal recognition including Constitutional
recognition that Aboriginal and Torres Strait Islander peoples have inherent
rights which must inform all processes of governments in Australia, improved
services such as health, housing, education and employment, in accordance
with the legitimate aspirations of Indigenous peoples; and certainty.

The above can be further emphasized by Behrendt (2003) further who states
that, a treaty could provide, among other things, a symbolic recognition of
sovereignty and prior occupation, a redefinition and restructuring of the
relationship that Indigenous peoples have with Australia.

It is highly evident that Aboriginal and Torres Strait Islander Peoples were
completely ignored as relevant parties in the formation of the Australian
federation. If a treaty had been in place and constituted by particular
principles, the structure of federation would, have certainly, incorporated
Aboriginal rights and position in the federal system, thus it is incredibly
important the Australian government understands this and takes the steps to
ensure a treaty can be constructed. Furthermore a treaty is important as it
will ultimately show how Australia has matured and changed as a nation
(Meyers et al, 2006)

Unfinished business is the title of the article and Dodson (2003) discusses
what is meant by this term. He claims that this term will ultimately have
different meanings to each individual, for example a member of the stolen
generation view the key outstanding issues in a treaty process in quite a
different way to someone who has had a relative die in custody, or someone
who has had their native title rights abolished by historical act or business
deal. Thus Dodson (2003) acknowledges it is very important that in the
process of dealing with unfinished business in the treaty making process that
all points of Indigenous view on the subject including those views that reject
or diminish the importance of the issue are taken into account.
It has been stated by Quiggan & Janke (2003) that The Australian legal
system includes laws which provide some protection for tangible and
intangible (including knowledge, art and stories etc) Indigenous Heritage.
However, the current legal framework offers only limited recognition and
protection.

Dodson (2003) ultimately agrees with the above in his article and illustrates
several ways in which a treaty could be legally constructed. These include the
following, an agreement under international law in the form of a treaty, an
agreement that is supported by the constitution, an agreement that is
supported by legislation, or a simple agreement. Dodson (2003) favours an
agreement that is supported by the constitution.

An agreement that is supported by the constitution ultimately would consist of

inserting a new section into 105B of the constitution. This approach would be
similar to that of section 105As amendments. The amendments of section
105A essentially enabled or empowered the Commonwealth to make
agreements with the states with respect to their public debts. The
Commonwealth, under this section, can therefore take over those debts. They
can manage those debts. They can pay the interest on those debts. They can
consolidate those debts. They can review them. They can convert them. They
can redeem them, by agreement, with the states (AIATIS, 2014)

Thus following a similar approach a treaty could be constructed following

framework similar to that of section 105A, a framework could be provided for
a treaty or treaties to be made between the Commonwealth government and
the Indigenous/Torres Strait Islander people, this would be done at a federal
level as oppose to a state level (Dodson, 2003) Ultimately Section 105B would
simply state that the Commonwealth has the power to make agreements or
treaties with the representatives of Aboriginal and Torres Strait Islander
People without any intervention of any other parties (AIATIS, 2014)
The above is quite an interesting point of discussion and is one of the articles
strengths. It is evident that other people also agree with the above, which will
soon be discussed.

As Dodson (2003) describes there are limitations associated with this

approach. These limitations include the fact that it would be difficult to gain
permission from two thirds of the Aboriginal and Torres Strait Islander
community which would be initially needed before further political action
could be taken, and as Dodson (2003) has previously stated one treaty will
not work for everyone and each individual has a different outlook as to what
a treaty or treaties would mean to them.

One weakness associated with this article is that Dodson does not elaborate
as to why a single treaty would not work. However others have discussed in
greater depth the reason for this. The fact that one single treaty would not be
appropriate can be discussed in further detail by Silby (2014) who quotes
Warren Mundine who claims that rather than make a single treaty
between the federal government and Australia's Indigenous
peoples in general, it is suggested that individual treaties should
be agreed with each nation or language group.

Issues associate with gaining a form of treaty is somewhat discussed by

Dodson; however Mensall (2003) raises an interesting point that Dodson does
not discuss. Mensall (2003) states that, gaining equality of any loss to their
country could prove to be difficult. It is ultimately believed that Australia
belongs to all citizens no one section could logically claim the land as theirs.
The right to decide their own collective destiny is lost too, as the indigenous
destiny becomes interconnected in the collective destiny of all Australians.
Self-determination would apply to Australia, not specifically to any group or
sub group within it.

In addition to the above Mansell (2003) further states that another difficulty is
defining the parties. If indigenous peoples are already Australians, with who
are they to make a treaty? It is odd to claim citizens can make a treaty with
their own government. It would put a strain on language to call that a treaty.

The above are quite interesting points and points such as the ones described
above are not focused upon to much extent in Dodsons article which is
somewhat of a limitation. As these are legitimate points of discussion.

Behrendt (2003) believes there are two models that can provide a guide to
treaty making processes that have an overarching structure but allow for
agreement making at the local or regional level: Indigenous Land Use
Agreements under the Native Title Act 1993 and the agreement making
processes in Canada.

This is somewhat of a different view to that of Dodson, Behrendt (2003) one

of the more effective means in structuring a treaty is to somewhat follow the
agreement making process in Canada. This process would ultimately entail
having the involvement of three parties, in which there would be negotiation
between the Indigenous parties, federal government and state parties. With
this model the Indigenous parties negotiate with the federal government and
the federal government then negotiates with the states to ultimately agree
upon a solution. Behrendt (2003) claims that this model ultimately allows for
the federal Government to act as the negotiating party on behalf of the State
and would be responsible for bringing state, territory and local governments
on side.

It is evident that many authors share similar ideas and it is evident that the
underlying theme is that there needs to be more communication between
Indigenous parties and the federal government. It is evident that some
believe that state government should get involved but ultimately many
believe that decision making and negotiation needs to be done at a federal
level and that discussion between the federal government and indigenous
parties must take place. It is evident that many authors feel gaining a treaty
or treaties is a difficult and complicated process however everyone ultimately
appears to agree that it is time Australia makes a treaty with the Aboriginal
and Torres Strait Islander peoples.

Conclusion

Ultimately Dodson (2003) raises some important points and discusses

framework that could be constructed to form a treaty. It is evident those
other authors also share his opinion and that others have a different
approach. Although this is a strong article with many important discussion
points, this article does lack some elements that other articles of a similar
nature contain. However ultimately Mick Dodson explains coherently what is
meant as unfinished business, brings forward interesting concepts regarding
legal framework to construct a treat and this ultimately makes for a strong
article.

Reference List

Dodson, M 2003, Treaty lets get it right, Canberra, Aboriginal studies press

Aboriginal council for reconciliation 2014, documents viewed 13rd January

2015 <http://www.austlii.edu.au/au/orgs/car/docrec/policy/brief/terran.htm>
Australian human rights commission 2012, social justice reports viewed January 14 th
2015 < <https://www.humanrights.gov.au/sites/.../social_justice_report>

AIATSIS 2014 treaty content viewed 12 January 2015

<http://www.aiatsis.gov.au/collections/exhibitions/treaty/information.html>

Mansell, M 2003, Treaty lets get it right, Canberra, Aboriginal studies press

Behrendt, L 2003, Treaty lets get it right, Canberra, Aboriginal studies press

Quiggan , R & Janke, T 2003, Treaty lets get it right, Canberra, Aboriginal studies
press

Meyers, G, Peter, R Reece, B 2006, What Good Condition?: Reflections on an

Australian Aboriginal Treaty 1986-2006, Ausralia, ANU-E press

Wiliams, G 2013, Treaty with Australian indigenous people long overdue, Sydney
morning herald, 12th November 2013 viewed 11 January 2015
<http://www.smh.com.au/comment/treaty-with-australias-indigenous-people-
long-overdue-20131112-2xeel.html>

Silby, M 2014, Mundine calls for indigenous treaties, SBS news, 27th January 2014
viewed 10th January 2015 <
http://www.sbs.com.au/news/article/2014/01/27/mundine-calls-indigenous-
treaties>

ww.aiatsis.gov.au/collections/exhibitions/treaty/information.html>

Mansell, M 2003, Treaty lets get it right, Canberra, Aboriginal studies press

Behrendt, L 2003, Treaty lets get it right, Canberra, Aboriginal studies press

Quiggan , R & Janke, T 2003, Treaty lets get it right, Canberra, Aboriginal studies
press
Wiliams, G 2013, Treaty with Australian indigenous people long overdue, Sydney
morning herald, 12th November 2013 viewed 11 January 2015
<http://www.smh.com.au/comment/treaty-with-australias-indigenous-people-
long-overdue-20131112-2xeel.html>

Silby, M 2014, Mundine calls for indigenous treaties, SBS news, 27th January 2014
viewed 10th January 2015 <
http://www.sbs.com.au/news/article/2014/01/27/mundine-calls-indigenous-
treaties>