Victoria's 'truth-telling' inquiry and treaty proposals ignore elephants in the room

54.15 per cent of Victorians voted against the 2023 Voice Referendum, and it is widely believed that the proposed Treaty with Aboriginal Victorians, recommended by the Yoorrook Justice Commission, is even more unpopular. Even the (chaotic and semi-woke) Victorian opposition withdrew its support for the treaty process in January last year.

The Commission was established in 2021 and handed down 100 recommendations. Yoorrook Justice commissioners were each paid between $250,000 and $370,000 for their work. Their recommendations include a treaty, redress for Aboriginal Victorians and a permanent advisory body with decision-making powers.

The recommendation for a Treaty seems based on the idea that so-called "first nations" never formally ceded sovereignty to the British colonisers, so that treaties are required to facilitate "sovereign to sovereign negotiations". Based on this logic, such treaties could arguably be regarded as being fundamentally international in nature rather than simply a state matter.

This all raises legal and constitutional issues. In particular, it is not clear whether state governments have the power to negotiate treaties. A treaty, according to DFAT, is an international agreement concluded in written form between two or more States (or international organisations) and is governed by international law.

"Indigenous sovereignty" also is not recognised in the Australian Constitution or under Australian law. In addition, under Sections 51(xxix) and 61 of the Australian Constitution, it is the Commonwealth (and not the States) that has the power to legislate in relation to matters external to Australia and to implement international treaties. These powers have been interpreted broadly by the High Court, allowing the Commonwealth to legislate on issues previously considered state matters when implementing international agreements. In addition, the second question in the 1967 referendum changed the Constitution and specifically allowed the Commonwealth to make laws in regard to "the Aboriginal race".

In terms of "truth-telling" the report found that serious crimes were committed during the colonisation of Victoria, including "mass killings, disease, sexual violence, exclusion, linguicide [the death of languages], cultural erasure, environmental degradation, child removal, absorption and assimilation". "This was genocide", the report said.

While there is no doubt that crimes were committed during the colonisation of Victoria and other Australian states, many historians are of the opinion that the narrative has been grossly exaggerated by many advocates for the Aboriginal cause. The most prominent critic has been the late Keith Windschuttle in his three-volume series entitled "The Fabrication of Aboriginal History". Noted historian Geoffrey Blainey also drew attention to Aboriginal inter-tribal warfare and violence prior to European arrival as a significant factor in keeping the Aboriginal population low.

During colonisation, introduced diseases are known to have had devastating impact on Aboriginal populations in Australia. Diseases like smallpox, influenza, measles, and tuberculosis spread rapidly with European settlement, and had a much greater effect than conflict in reducing the Aboriginal population.

The most glaring elephant in the room concerning the merits of a Treaty in Victoria is, however, the issue of inter-marriage and assimilation into the general community, a matter that Aboriginal activists and the Aboriginal Industry are loath to discuss.

The issue comes into most prominent focus when one looks at rates of out-marriage in states like Victoria and Tasmania, and even more so in the ACT. In these jurisdictions many aspects of Aboriginality, like language and traditional culture, have largely disappeared and it is becoming increasingly difficult to visually differentiate between those of indigenous descent and the general population.

The cold facts according to the 2021 Census are that (Australia wide) the proportion of Indigenous couples, where both partners identified as Aboriginal and/or Torres Strait Islander, was only 18.4% in 2021. This compares with 35.6% in 1996. In Victoria in 2021, only 6.2 per cent per cent of married/de facto Aboriginal Victorians had an Aboriginal spouse. The figure for the ACT was 5.7 per cent and for Tasmania 10.7 per cent. Only in the Northern Territory did a majority (71.8 per cent) of coupled Aboriginal persons have an indigenous spouse.

It is clear that, irrespective of government policy, Aboriginal people are integrating into the general melting pot of the Australian population. This is happening at a rapid and accelerating rate in all but remote parts of the country.