MIND THE TREATY TRAP

Ghillar Michael Anderson, Convenor of Sovereign Union, 21 April 2021

Harold Freedman’s drawing of John Batman signing a treaty with original landowners.

If we are involved in truth-telling in this day and age then it has to start now at all levels so that we can identify the traps laid out before us. Proper sovereign treaties have to involve negotiating rights between sovereign powers and negotiations commence on a full agreement that sovereignty was never ceded by First Nations in Australia, who continue to hold proprietary rights to all lands and waters in this country, as was confirmed in the Mabo case.

- Ghillar Michael Anderson

Another deceit! The so-called 'treaty process' of today threatens the inherent sovereign rights of First Nations. State agreements are not 'treaties' between Nations, they are private agreements.

Truth-telling - is it a joke? If we are involved in truth-telling in this day and age then it has to start now at all levels so that we can identify the traps laid out before us, as well as revealing the horrendous past that First Nations have survived.

The promoters of Recognise, Reconciliation, the Voice, Yulara/Uluru Statement and the 'treaty process' with the States are deceiving everybody. This deceit comes in a number of forms, but for now I'll focus on the 'treaty process'.

For decades many First Nations have called for sovereign Treaty/Treaties as a way to educate grassroots on their pre-existing inherent sovereign rights.

From four and a half years (1981-1985) of research on treaties, both domestically and internationally, and as Director of Treaty Research for the National Aboriginal Conference (NAC) I am able to share a comprehensive understanding of a proper treaty process.

Gough Whitlam, Ossie Cruse and Ghillar Michael Anderson prior to leaving on the National Aboriginal Conference (NAC) tour of Africa. (Gelatin silver photograph by Juno Gemes)

Proper sovereign treaties have to involve negotiating rights between sovereign powers. The agreement that National Aboriginal Conference (NAC) had in place in the 1980s with the Fraser government was that negotiations were to commence on a full agreement that sovereignty was never ceded by First Nations in Australia, who continue to hold proprietary rights to all lands and waters in this country, as was later confirmed in the Mabo case.

This was the key condition under which the NAC was prepared to negotiate with the Commonwealth government, and Prime Minister Fraser agreed. Fraser's later advisers, however, became afraid of the word 'Treaty'.

The NAC asserted that there would be no treaty if it was a one-way track only, with only First Nations giving up rights. Treaties are fundamentally about what the Crown is prepared to agree to, what are they going to give up in order accede to First Nations inherent sovereign rights. Since Australia rules in right of the British Crown, the British Crown first has to agree that it is a foreign occupier of First Nations' lands and waters, for which First Nations are first owners and possessors, under international law at the time of invasion and to the present.

In respect of the current 'treaty process', I can say authoritatively that the National Treaty framework 1981 - 1985 research affirmed that State governments can only enter into private agreements, compacts, or arrangements. The constitution of Australia reserves treaty-making powers to the Commonwealth as their sovereign head of power. The States cannot deal with an independent 'race' of people, because that is not in the ambit of their own State or Territory constitutions.

Early on in the Victorian treaty process, the State government made it very clear in a Fact Sheet that the Victorian government can only make recommendations to the Commonwealth regarding what should be included in a treaty.

'There are three main limitations on treaties in Victoria:

1. The parties must agree on what is necessary and just.
2. As a state within the Commonwealth, the Victorian Government can only agree to what is within its own constitutional powers.
3. As one state within the Federation, Victoria can only advocate for what is included in a national treaty.'

Treaty-making rights are exclusive to the Commonwealth.

Now we need to identify how the deceitful so-called 'treaty processes' are unfolding and laying the bait to entrap First Nations into agreements that will be to their detriment.

We are aware that governments and their black troopers/trained and paid agents of the coloniser are exploiting our peoples' lack of knowledge and, through the politics of poverty and coercive control, they hold out promissory notes of financing so-called strategies for employment, housing and education, which, by the way, are not exclusive to the Aboriginal claim. More importantly, these things are basic fundamental human rights which all people have, be they First Nations or not.

Some of the Victorian government's Treaty logo's and spin

The 'treaty process' submissions that are being laid out before the Peoples by State governments and their modern day 'black troopers', fail to inform the people that nothing in respect of Aboriginal hopes and aspirations is valid, unless the people themselves are fully informed of all their rights, human and otherwise, on matters that are relevant to their current existence and future - a future that does not necessarily include just their own person, but that of their children, grandchildren and great grandchildren and so on. This is properly known as free, prior and informed consent (FPIC).

Our people must be cautious, however, not to close the door on the right of our future generations to claw back the rights that may be given away now, because many of our people are not, or may not be, fully aware of what our sovereign inherent rights and interests are in their entirety.

Another matter that is vital and I have said this on numerous occasions in other articles and I repeat it now. We are NOT citizens of this occupying regime.

I return to what former Prime Minster of Australia, Sir Robert Menzies, stated on 1 April 1965, when he addressed the Commonwealth Parliament drawing attention to the recurring issue of 'Aborigines' and the Constitution. Menzies was telling the people of Australia that:

... if the word 'Aborigines' is taken out of the Constitution the Parliament would have no specific constitutional powers to pass laws for Aborigines.

In the same debate, Beazley Snr emphasised the point:

'... For heaven's sake, if we in this Australian Parliament cannot guarantee citizenship, let us accept the fact that our Constitution acknowledges only the status of subjects of the Queen and that, no matter how many acts of Parliament we pass, we cannot reach into the States and create any form of meaningful citizenship. Until placitum (xxvi.) of section 51 of the Constitution is amended, Aborigines can have no effective Australian citizenship.

This is confirmed in the 2020 High Court cases Love v Commonwealth and Thoms v Commonwealth, in which Love and Thoms were ruled to be non-aliens and non-citizens.

I stress this point because the Commonwealth parliament is the only head of power with the authority to make laws in respect to a particular 'race', under s51(26). So then, where is the documentary evidence that the British and/or the Australian judicial and/or legislative rulers use to define Aboriginal and Torres Strait Islander people as a particular racial and ethnic group? And how are these groups defined?

Given the fact that the term Aboriginal and/or Indigenous does NOT give a clear distinction of what constitutes a 'race' of people, it makes it impossible for the Commonwealth of Australia to pass special measure statutory laws for an Aboriginal 'race', whose ethnicity is unknown or identified.

The obvious question that is now raised is how does the occupying regime ruling in right of the British Crown acquire a judicial right to define us as a particular category in respect to being a 'race'? The more recent term 'Indigenous Australians' is affronting and assimilationist, as all people born in Australia are technically indigenous.

We must be aware of a process known as inference. There is an international practice which has not been discussed with First Nations people in this Country. Under international law, there is a process that requires the people of a particular origin to consent to an illegal occupation. They purportedly consent to that illegal regime by proposing and entering into agreements and/or treaties with the illegal regime, which then governs over them and for them, as a result of the purported request.

Unfortunately, our people are not being made aware of this rule and so we have people like Marcia Langton, Tom Calma and others moving around this Country, establishing so-called government-funded representative agencies along with some private individuals, who are then purported to be representing the local constituents and thus the local constituents are allegedly consented to a request that they know nothing about.

This is an unconscionable act on the part of governments and multi-national corporations which are behind this illegal regime to falsely and fraudulently obtain the consent of First Nations, for these illegal regimes to now have total control over the affairs and possessions of the First Nations and Peoples.

Again, I make the point that our people are NOT aware of how this all works. If the people were fully informed they would not participate and make public announcements. Instead they would make declarations of their own independence and give NO authority to be absorbed into this occupying power and its administration. They would stand up and reject the current 'treaty process', which resonates strongly with the Policy of Assimilation.

To back track - in 1961 Paul Hasluck, M.P. Minister for Territories announced to Parliament the agreed policy of federal and state ministers at the Native Welfare Conference, which had concluded in Canberra on 26 and 27 January 1961 that:

'The Policy of Assimilation means in view of all Australian governments that all aborigines and part-aborigines are expected eventually to attain the same manner of living as other Australians and to live as members of a single Australian community enjoying the same rights and privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians.'

P Hasluck, House of Representatives, Debates, 20 April 1961, p. 1051

Treaty-making with First Nations is now complicated by the fact that the NSW Supreme Court confirmed in the cases R v Bonjon 1841 and R v Ballard 1829 that Aboriginal people are the sovereigns of the soil and the colonists are the intruders. Furthermore, the High Court agreed with both Menzies' and Beasley's statements in the 1965 referendum debates, as referred to above.

Added to this complication, the Australian government and their black troopers are fudging a process that constitutes an abuse of power, that is to say: what the people of Cape York may want as a collective of different tribes (language groups); what the Northern Murray Darling Basin Nations (NBAN) may collectively want and what the people of Arnhemland may want, are very different from each other.

The current consultation process going on around this county is a massive program of deceit. People like Marcia Langton, Tom Calma and their cohorts know very well that every individual Aboriginal Nation, based on linguistics and ceremonial association, can only speak for themselves and not submit other Nations to their hopes and aspirations.

The NAC treaty process learnt this from its own community-based consultation program and the advice to the then PM, the late Malcolm Fraser, that one Nation cannot speak for another, and right now this is not what is happening. The NAC consultations were founded on the principle that each community of Aboriginal groups and Peoples had to be made aware of their fundamental human rights under domestic and international law; they had to be made aware of the political and legal frameworks of the agreements into which they decided they wanted written into those agreements and their terms for a solution; and how that was to be administered and by whom.

The current regional consultations cannot achieve this. Setting up special incorporated networks that only deal with registered and funded Commonwealth and State bodies of Aboriginal people marginalises the grass-roots to the extent that their sovereign voices within the community are not heard. In a legal sense, any organisation incorporated under the Crown law of Australia cannot represent First Nations' Sovereignty.

What is currently going on around this country is an unconscionable act of fraud against innocent Peoples, who are left out in the cold, because they do know what they want and they are developing a clearer understanding of their inherent sovereign rights.

Our people are minimalists at the best of times as they are not greedy; most of our people do not understand greed in its true sense; most of our Elders do not know how corruption works; most of our people do not understand the refinements of the English language and how words can be manipulated; nor do they have a concept and/or understanding of how double negatives work to their detriment.

We must have honest and broad community-based consultations preceded by an education program independent from government.

And we must have international observers and/or facilitators to these processes, otherwise we will only get what is being paid for. In this case, it's buyer beware! Unless we have independent observers and /or facilitators we will be blind-sided and cheated. Just look at what native title has done.

Don't be fooled again by the same people. We all have to learn to say: NO!

Don't ever let them play on your poverty. Where they say: Your mob will get money if you agree to this; or, this will be good for your community if you say: Yes.

History now shows that we got nothing and will continue to get nothing until we understand all our rights; and we have the right to assert these rights. These sovereign inherent rights come from our Law and custom as the First Nations and Peoples and as first owners and possessors of Country.

Contact: Ghillar Michael Anderson
Convenor of the Sovereign Union,
Head of State of the Euahlayi Peoples Republic
Contact Details here