Indigenous Difference, Indigenous Rights and Decolonising the Australian Nation-State: The Case for UNDRIP-informed Tripartite Treaties with First Nations
Creators: name: Maning, Richard
Publisher: name: The Australian National University
Year: 2022

description: Australian First Nations have been pursuing the decolonisation of the Australian nation-state in the judicial and political arenas since the last century. I contend that the most effective way for First Nations peoples to achieve a decolonised relationship with (and within) the Australian nation-state is to negotiate comprehensive political settlements - by way of tripartite treaties - with the Commonwealth Government and State/Territory Governments. I favour the political realm because concerted efforts to pursue First Nations' decolonisation agenda to date via judicial adjudication on key aspects of First Nations' rights have been hampered by judicial constraints or settler-colonial impositions. I argue that these tripartite treaties should be premised upon the rights affirmed in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). By recognising First Nations peoples' Indigenous difference and Indigenous rights, UNDRIP constitutes a direct challenge to settler colonialism, settler-colonial impositions, and the assimilationist forces of settler nationalism. UNDRIP, notably for instance, recognises First Nations peoples' inherent rights to self-determination and self-government. In making this argument, I distinguish my research from much contemporary scholarship on Australia's First Nations' struggle to be free from settler colonialism, which has either not foregrounded UNDRIP as a supportive platform for decolonising the Australian nation-state or does so only in a limited way. Ultimately, my assessment of the utility of the judicial and political arenas as fora for decolonising the Australian nation-state is based on the ability of efforts in these arenas to satisfy the minimum rights affirmed to Indigenous peoples in UNDRIP. Australia's First Nations have continued to call for decolonisation of the Australian nation-state, asserting their Indigenous difference and Indigenous rights, in the face of settler colonialism. A brief historical overview reveals the long-standing nature of First Nations calls for Australia's decolonisation. To assess the utility of the judicial arena as a forum for decolonisation, I examine selected court cases focused on three dimensions of Indigenous difference: First Nations' sovereignty, First Nations' cultural heritage and First Nations' Indigeneity. My examination of court cases focused upon these three dimensions shows that judicial adjudication can contribute to the maintenance of settler-colonial power relations, and supports my contention that the judicial arena is essentially an inappropriate forum for achieving First Nations' decolonisation objective. To assess the utility of the political arena, I examine selected calls for treaty by First Nations peoples in the political realm to provide for a comprehensive restructuring of political, social and economic relationships between Indigenous Australia and the Australian nation-state. My analysis demonstrates that the political arena provides the most promising space for realising First Nations' decolonisation objectives and, specifically, that negotiation of UNDRIP-informed comprehensive tripartite political settlements with First Nations is the best route within this. To assist First Nations, the Commonwealth Government and State/Territory Governments in the negotiation of such agreements, I put forward a proforma tripartite treaty with minimum content premised upon the provisions of UNDRIP, First Nations' treaty proposals in Australia, and the British Columbia contemporary treaty-making process in the hopes that it will help foster First Nations' decolonisation objectives.