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Agale, Maurice --- "Necrology: List of Recently Dead People" [2002] IndigLawB 70; (2002) 5(21) Indigenous Law Bulletin 12

Necrology: List of Recently Dead People

by Maurice Agale

Crusaders of the treaty roam the land on their holy quest. Like all crusaders, a misconceived sense of justice and illusions of grandeur drive them. This incessant need by these glory hounds to build a monument to themselves is perplexing. Australia’s history continually highlights a lack of any meaningful interest to preserve human rights, let alone Indigenous rights.[1] Could the treaty be the final act of assimilation brought about not by the government, but our own leaders and proponents of the treaty?

The word ‘treaty’ itself is a point of debate. Dictionaries define it as ‘a formal agreement between two or more independent States',[2] following the Vienna Convention on the Law of Treaties.[3] The current legal position of the Australian Government is that Indigenous peoples are not sovereign States, and therefore, any legal argument is bunk.

The social and political aspects of a treaty need exploration. Once signed what force will a treaty have? Are we expecting a goodwill document, or a necrology - sacrificing Indigenous souls to a bourgeois society founded on pure self-interest?

With no guarantee of protection of rights why negotiate a treaty? For example, the High Court in Yorta Yorta[4] has applied the legal principle of gun barrel tenure to justify dispossession. If the courts are unwilling to recognise Indigenous rights, what will a treaty achieve? A treaty under this regime is a declaration of surrender, enslaving future generations to this hostile society.

In the Federal Government’s recent anti-terrorism advertisements, the illusionist Steve Leibermann describes Australians as ‘friendly’, ‘peaceful’ and ‘democratic’ people and says that ‘we are going to stay that way’. However, consider racist slurs such as sand nigger [5] and boong, and then try to reconcile them with Leibermann’s words. The sand nigger and boong cannot exist as islands of reality in this illusion.

This contradiction only serves to illuminate the pornography called Australian settlement; a myth realised in Palestine with bayonets, guns, murder and lies. Nevertheless, Australians believe the mythology that gains by the Crown were peaceful; reinforced after Mabo[6] as the first crusaders conceded to the government our ancestral and legal rights.

The words ‘never again’ should be our slogan. The treaty has to be out there amongst the people if it is going to work. Debates exploring ideas must be inclusive, not exclusive. Otherwise, mushrooms and ostriches[7] will flourish once more. End this black ring circus with wandering minstrels and focus on empowering our communities with some real issues.

How is the Aboriginal/Torres Strait Islander dichotomy to be reflected? Are there to be multiple treaties, or are the Pharisees sitting in a closed room going to decide on our behalf? The treaty must be placed in the hands of the people before the debate is finalised. No great idea was ever born in a conference but many have died there.

Looking at the overseas precedents, a treaty is not likely to improve our position or lot in life under a regime that wishes only to assimilate us. However, if we are to look at the overseas models, then we should also consider some advice from the past:

‘What Treaty has the Whiteman ever signed and kept?’

Tatanka io Tanka (Sitting Bull)

If we do not, we could become a necrology.

Maurice Agale is of Torres Strait Islander and Aboriginal descent. He has studied law at the University of New South Wales and is currently finishing his BA at the University of Western Australia.

[1] For example, the Australian Government opposed the incorporation of a human rights clause in the League of Nations Charter in 1919.

[2] The Macquarie Dictionary (2nd ed, 1987) 1807.

[3] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, art 2(1)(a) (entered into force 27 January 1980).

[4] Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 12 December 2002).

[5] A term I heard recently on the train from American sailors referring to Arabs. No insult is intended to Arabs on my part here, merely to point out that there appears to be a distortion of human values in this world.

[6] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 107 ALR 1.

[7] Ostriches’ eyes are bigger than their brains, think about it.


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