INDIGENOUS HEALTH AND THE TREATY DEBATE:

             Info Sheet 2: Could a treaty or constitutional change make a difference?

Some quotes from those who think it could…

      While supportive of the idea of a treaty or treaties, none of the authors below suggest they are a panacea for
      the problems in Indigenous health. They acknowledge that health problems must be tackled on several
      fronts. While many express their views on a treaty in tentative terms, they draw on research on social
      determinants of health and an awareness that constitutional structures can impede or assist health care.

Central Australian Aboriginal Congress:
‘Treaties have a role to play in [the social determinants of health] through:
• providing clear and effective institutional arrangements for the provision of health (and other services)
• overcoming the adversarial nature of state and territory government relations with Indigenous
• establishing Indigenous rights in law
• giving individuals a greater sense of their own strength within the system and
• a lessening of a sense of helplessness or powerlessness…
A treaty can raise the administrative obligations of the Commonwealth Government above parliamentary
political will and embed it in a higher authority within the Western system ie the Constitution (Canada) or as
an agreement to be interpreted through an independent tribunal (New Zealand/Aotearoa).’ 1

Stephen Kunitz:
‘Would a treaty help? It is important to consider both the symbolic value of a treaty and its legally
enforceable provisions. I do not for a moment mean to devalue the symbolic importance of an admission of
government wrong-doing that a treaty would very likely imply. But the lasting value of a treaty is that it
contains provisions that can be enforced by the courts. However, the American experience suggests that
treaties are not always readily enforced. Court battles are expensive, and they are not always settled as Indian
tribes would like. But certainly a treaty without provisions assuring, for example, access to health care or
protection of land rights would not achieve all that would be needed to contribute to the improved health and
well-being of Aboriginal people.’ 2

Reynolds, Smith, Howse and Beesley:
‘[A] focus on legal and constitutional issues legitimately [has] a place in indigenous policy, both because
they may be relevant to outcomes and also because they are important issues in their own right… Some
jurisdictions have expressed rights in a more significant and binding way by incorporating these kinds of
rights into their constitutions. One example is the South African Constitution…Overall the South African
experience indicates the importance of positive rights since these are triggers for achieving adequate
standards of environmental health and health care. If they are pursued and actively enforced by courts,
positive rights will prompt the environmental and social changes that so often are the causes of ill health
within populations…

How might they be relevant to Indigenous communities in Australia?…We suggest that a constitutional right
to health would provide a forum for an applicant, representing an indigenous community to take the matter to
court and to seek an order that their constitutional right was not being met. In this model resources would no
longer be the exclusive preserve of government policy makers but would become a public issue…

We can see in the United States, Canadian, and also New Zealand, constitutional arrangements which
recognise the prior rights of indigenous communities and vest some formal levels of constitutionally
protected governance in those communities… Do these arrangements contribute to the fact that indigenous
health status is substantially better in those communities than it is in Australia where, beyond some
recognition of land rights and the potential to claim native title, nothing has happened?...

We might speculate whether these opportunities, which seem to exist in the United States and Canada, and
which may substantially explain the differences in health status, are more prevalent and more resilient
because they are grounded in a constitutional base and are part of a tradition which has taken, and continues
to take, the theory, if not always the practice, of Indigenous rights seriously. More investigation of this
proposition needs to be undertaken but it is a promising line of inquiry emphasising the potential importance
of the “big picture” while seeing some useful links between the law and indigenous health and welfare.’ 3
Kate Ross and John Taylor:
‘While governance structures clearly differ for Maori and Indigenous Australians, it is still not entirely clear
how treaty obligations work to improve Indigenous health. As suggested above, clearer and more effective
institutional arrangements for the provision of health services are one way in which treaties may operate. In
an earlier section, the adversarial nature of federal-state relations in Australia was noted, and it was
suggested that this did not serve the needs of Indigenous Australians well. Moreover, given that the federal
government was unable to legislate for Indigenous people until 1967, Australia suffers a significant time lag
behind the policies and actions evident in New Zealand. Even now, health services are delivered at three
levels: federal, state and community. Furthermore, the 1967 Referendum itself is a very blunt instrument for
providing the kinds of rights now enjoyed by Maori under the Treaty of Waitangi…

The other side of the institutional arrangements that flow from treaties is the interpretation by individual
Indigenous people of their own status. In the presence of legal rights and obligations, an effective bargaining
base and explicit recognition by the non-Indigenous majority, it is arguable that psychosocial stress could be
mitigated.’ 4

Ian Ring and Ngiare Brown:
‘There isn’t any particular mystery about what is needed to bring about sustainable improvements in
Aboriginal and Torres Strait Islander health… So what would it take? Firstly, an adequately funded Primary
Health Care Access Program (PHCAP) to ensure satisfactory and effective community controlled Primary
Health Care services throughout Australia. Secondly, a funded National Training Plan. Thirdly, a National
Infrastructure Plan to rectify the longstanding deficiencies in water supply, sanitation, education and other
basic services. Fourthly, dedicated funds for Aboriginal and Torres Strait Islander health research –
preferably 5% of the national health research funds and through a mechanism controlled by Aboriginal and
Torres Strait Islander people.

Finally, it is our view that these, and other social and political issues of fundamental importance, would best
be encompassed within a treaty or agreement, but the four fundamental health initiatives cannot be further
delayed, and should progress as immediate national priorities.’ 5

Ian Ring and David Firman:
‘The Treaty of Waitangi has been central to the relationship between Maori and other New Zealanders, and
in the United States treaties established some status for Native Americans in their relationships with the
“invading” Europeans, although these treaties were often abused. It is therefore difficult to entirely discount
the suggestion that the absence of a treaty is a factor in the relative lack of progress in improving Australian
indigenous health. Treaties, no matter how loosely worded, have appeared to play a significant and useful
role in the development of health services, and in social and economic issues, for the indigenous people of
New Zealand, the United States and Canada.

Syme has hypothesised that the sense of control that people have over their lives and the sense of hope that
this creates are important determinants of health status. He links both of these factors to disadvantage. It is
arguable that colonial paternalism, an official policy of assimilation, and a lack of formal recognition
through treaties have together acted to create and reinforce a sense of powerlessness in Australian indigenous
people which is relatively less in other indigenous groups. It may well be that these intangible factors are
adversely affecting indigenous health in Australia.’ 6
      Central     Australian     Aboriginal     Congress,     Position      Paper:     Treaty     &     Health,      July   2002,
<> citing Kate Ross and John Taylor, ‘Improving
Life Expectancy and Health: A Comparison of Australia’s Aboriginal and Torres Strait Islander People and New Zealand Maori’
(2002) Journal of Population Health, September 2002.
  Stephen Kunitz, ‘International comparisons relating to Indigenous Health and Primary Health Care’ (2002) delivered at Working
Together, Sharing Experiences conference, Centre for Remote Health <>
  Chris Reynolds, Rosie Smith, Genevieve Howse and Anna Beesley, ‘Law as a Determinant of Indigenous Health’, presented at the
CRCAH Workshop on Social Determinants and Processes in Aboriginal Health, 6-7 July 2004.
  Kate Ross and John Taylor, ‘Improving life expectancy and health status: a comparison of indigenous Australians and New Zealand
Maori’ (2002) Journal of Population Health, September 2002.
  Ian Ring and Ngiare Brown, Achieving Sustainable Improvements in Aboriginal and Torres Strait Islander Health (2003) In Search
of Sustainability Online Conference <>.
  Ian Ring and David Firman, ‘Reducing indigenous mortality in Australia: lessons from other countries’ (1998) Medical Journal of
Australia <>.

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