Treaty now: why treaty makes more sense than a ‘voice’

The Garma festival in the Northern Territory comes around again next week, and once again there’s more debate about the Uluru Statement From the Heart and the proposal of an Indigenous voice to parliament — an Indigenous assembly anchored in the constitution by referendum, but with no legislative powers.

Well, less debate about the actual voice proposal than about how to make it happen: there is furious agreement that the voice is an unquestionably good idea, and that the only question is how to achieve it. Even that question has been sidelined. The near unanimous position appears to be that the constitutional establishment of the voice should precede the creation of a treaty, or treaties, which would then be negotiated by the voice body.

The rationale for this, expounded by Noel Pearson, is that there has to be a representative body prior to treaty negotiations for the treaty to be genuine. It’s a beguiling theory, especially the way he tells it.

Furthermore, Pearson and co have made some strides in getting some on the right to sign up to the idea of the voice, after Malcolm Turnbull rejected it out of hand to ward off his party’s right. New Liberal MP Andrew Bragg, on the economic right, spoke up for it in his maiden speech. Chris Kenny is willing to take it on the jaw (404: page not found) from his News Corp compatriots and support the move.

Even Barnaby Joyce was persuaded to walk back his initial claim that the voice would be a third chamber. Not bad political work. But the Liberal and commentariat right remains resolute — that any such recognition would amount to the constituting of a separate people — and the National Party it seems, will never be persuaded around. If they can be, well that would be an extraordinary political triumph deserving of praise.

But it would be so because the Nats would have been persuaded to give up the grounding myth that gives them the appearance of “naturally” representing their rural constituents: that it was they who honoured the land by farming and developing it, and that Indigenous people were mere precursors. That’s one reason why the notion of a recognition preamble/paragraph has such broad support: it can serve as either a commitment of continuity, or a ruling off of a now concluded tenure.

The Nats hold on to a rural constituency — which they sell down the river so often it may as well be a timetabled ferryboat service — only through the maintenance of this myth. Hence the huge number of hereditary divisions, handed from father to son. It’s the invoking of a white blood claim to the land, set against Indigenous claims. If they gave it up, One Nation would fill the vacuum.

So even if a voice referendum were to get up under the current government, there would be a mad scramble on the right to oppose it, and to use that opposition as part of its war within the non-Labor side of politics. As I’ve noted previously, even with bipartisan support, referenda that propose complex new instruments of power have hitherto always failed in Australia. Add to that the basic mathematical bias — in formal mathematical terms, a yes vote on any referendum question has only about a 20% chance of succeeding, odds I suspect many rank-n-file voice proponents haven’t fully got their head around — and you are looking at very long odds indeed.

That must demand a re-examination of the rationale which puts the voice prior to a treaty. In Pearson’s telling of it, a treaty without a constituted Indigenous side to negotiate it is like a bridge anchored at only one end. But that is a liberal consensualist view which ignores the ultimate arbitrariness of political entities. Treaties and agreements bring entities into being, not vice versa, when one side is an insurgent group that is recognised as a sovereign body.

The Good Friday agreement is a good example of this. We know who it was really between: the British state and Sinn Fein/IRA. The agreement brought into being the new round of cross-border power sharing arrangements that created a new form of sovereignty. Had that been done the other way around, armed struggle would have restarted.

In the Australian context, one big treaty between a provisional leadership and the settler state seems far more politically achievable, radical and constitutive. The simpler the instrument, the greater the symbolic/material power it would have and the better it would serve as a base for fully material secondary treaties and recognitions: for resources ownership and urban land and capital reparations for example.

A single big treaty — the nation-based treaties being pursued by the Victorian government remain one-sided acknowledgements, bounded by existing law — doesn’t really need a preconstituted body to develop it. The more complex it is, the further it draws away from its simple power of right. The most effective slogan for a treaty campaign in a referendum would be: “Treaty!” It expresses itself. Try explaining the voice in under ninety seconds, and without giving the right half a dozen attack points.

A referendum is a political casino. And the sure way to lose in a casino is to ignore the house rules which tilt the odds. Hopefully this year’s Garma festival will be the occasion for some hard questions about the strategy being pursued, and the reasoning underpinning it, amid the white expressions of unreflective support.