People say things. Sometimes they really mean them. Sometimes they even write them down.

Other people listen to what is said or read what is written. If they trust the source, they will probably believe it. This belief is not simply a cognitive phenomenon. It will be accompanied by certain feelings, hopes, maybe even expectations. If the belief is confirmed by subsequent events, the threshold for trust is lowered, the relationship is deepened, and both parties live happily ever after.

Sometimes the content of the communication is especially significant. Professions of love and notifications of death are but two examples. In these situations the stakes are much higher, and the relationship is on the line. The threshold for trust is raised because the consequences of belief are profound and far-reaching. Once confirmed, though, reassurance supplants skepticism, and a new equilibrium between the parties is established, one which removes the stress generated by doubt and lowers the mental/emotional energy required to manage the relationship.

But people have second thoughts. They change their minds. They retract what they said, they qualify it, they recast it, they deny it, they go silent.

It is folly to expect that everyone will get things right, first time and every time. People sometimes get caught up in the moment and blurt things out. These may reflect innermost thoughts and feelings not really meant to be revealed at the time, or circumstances one was not at liberty to divulge. Some things are best kept secret until a propitious moment for their disclosure arises, or perhaps even forever. The more significant the communication is, though, the more we expect (rightly or wrongly) that sufficient thought has been given beforehand, that the person means to say it and means what they say, and that any subsequent backtracking is unconscionable.

Everyone knows how the so-called “smartphone” has become the modern-day instrument of embarrassment and regret par excellence as the handily placed Send button urges dispatch, where in a previous era the circumstances of penning a letter would have encouraged greater prudence. Curiously, it seems blurting is even easier in this new tap-tap-tap-click setting than it is in the case of speech. It could even be that one of the more politic uses of artificial intelligence in everyday life would be to detect likely communications of significance in the sense we are discussing and interdict their dispatch until (say) 24 hours later, at which time one would be given the chance to amend the message or abort its transmission entirely. The trick, of course, is knowing what the other person will deem to be significant, but one suspects that it will not be long before this will be within the capability of a truly intelligent artifice. Pending that happy day, one can only be mindful of the pitfalls of the over-hasty and ill-advised expression of sentiments of significance, via whatever medium.

The consequences of backtracking depend on many things, including the significance of the communication, the status of the relationship, the level of trust, such expectations as there may be, the psychological temperament of the other party, the social milieu and the reactions of others (family, friends, peers, leaders or role models). In general, though, the greater the significance of the communication, the greater the reverberations of backtracking.

Treaties fall in the category of communications whose content is especially significant.

They specify the parameters of an agreement between the parties involved. But this is a very special type of agreement. The context of the agreement is by no means trivial. Indeed, the prior circumstances constitute those most dire in relationships between groups of humans; viz, the attempted subjugation or extermination of one group by another, with the target population employing in response such countervailing measures as may be available to it. The most conspicuous example is war. So-called “rules of war” notwithstanding, by its very nature war entails preparedness to use whatever means one can muster in order to prevail over an adversary. But less extreme situations can be no less devastating for individuals caught up in a conflict. Here the weapons may be such things as law, discrimination, entrenchment of disadvantage, indoctrination and forced “assimilation”, to name but a few. To the casual observer (ie, anyone outside the target population) these instruments may appear non-lethal, benign in comparison, perhaps even justifiable, but certainly nothing to arouse outrage — all of which are demonstrably false and betray a vile morality. Whether regarded as war or not, in all cases a treaty is meant, not only to signal the end of conflict, but also to put the hitherto antagonistic relationship on a new footing, one that purports to advantage both. Were there no recognition of benefit for both parties, there would be no need for a treaty: one party would simply conquer the other and be done with it.

Treaty negotiations may be preceded by a mutually agreed ceasefire (to use the term in the broadest sense) or an outright surrender of one party to the other. Howsoever the conflict is brought to an end, damage will have been inflicted. Rarely are the parties on an equal footing, with respect to either injury sustained or power to dictate terms. An air of hostility may still pervade the atmosphere.

In some cases there will be recognition, explicit or implied, of culpability on the part of one of the parties for initiation of the conflict. Sometimes reparations will be exacted. Inevitably, concessions will need to be made by both sides in order for agreement on the content of the final treaty document to be reached.

The situation with respect to Treaty for Australia’s First Nations is quite complex. The conflict has encompassed both outright war and the ostensibly non-lethal stratagems alluded to above. Some success in the area of land rights notwithstanding, Australia’s First Nations people have, right from the beginning, been utterly overwhelmed by the forces massed against them. There is no obvious date when hostilities ceased. (On the contrary, there is ample evidence to corroborate their persistence in many guises.) And, rather than a single Treaty being negotiated, there are multiple Treaties in the pipeline, each generally having a particular State Government as one of the parties thereto. While negotiations in some quarters appear to be being held in a respectful atmosphere and with much good will on both sides, unfortunately there are jurisdictions where the process has barely got under way or where unilateral withdrawal from proceedings has terminated the process entirely.

Given the amount of devastation, a treaty without reparations is akin to a handshake. This is not to diminish the power of a handshake which in today’s polarized and uncompromising world is difficult enough to arrive at, but it does beg the question of how keenly the damage is appreciated and how sincerely the will to rebuild the relationship is felt. In the case of a driver causing a fatal accident, a mere apology is not accepted by the judicial system as exoneration from punishment. Consistency would see the same principle apply to iniquities visited upon First Nations people by governments, past and present. Reparations should be calculated (using the term in its broadest sense) in relation to past wrongs. They should be viewed as distinct from undertakings to improve the lot of Australia’s First Nations people, and their relationship to the rest of Australia, in the future. In particular, they should not be construed as part of any “Closing the Gap” strategies: these latter should be attended to anyway. I think it is important to recognize, and distinguish between, harm done and aspirations for the future. The allocation of funds or other resources for addressing them should be done separately. In the aftermath of conflict — and even more so if the conflict persists in some form — there is bound to be bitterness. The manner in which the business of reparations is handled can go some way towards assuaging the bitterness and thwarting the corrosive effect of long-lasting resentment (which can last for generations). There is no place for duplicity in a treaty.

Conflicts will inevitably arise during the negotiations, but at least some measure of good will on either side, together with the shared goal of ending the more substantive conflict, should see them handled and resolved in a more constructive way.

In contradistinction to some other human communications, treaties are not blurted. Every word is scrutinized time and time again, by multiple people. No artificial intelligence is needed to issue a note of caution before publication. Everyone — not just those party to the agreement — has every right to expect finality to the conflict, with no prospect of backtracking.

And yet….

People are fickle. The public is fickle and political parties are fickle. Governments change. The time will come when those who negotiated the Treaty and those who signed the document will no longer be politically active or even alive. It will fall to others to uphold the values, intention and provisions of any Treaty made in earlier times. Whether through prejudice or avarice, it is almost inevitable that opposition to a Treaty will emerge and assert itself. Defenders may not be able to stem a rising tide. Erosion, recasting, disregard, dismantling or abrogation are all within the realm of possibility. It is impossible to make a treaty watertight. Lawyers and politicians will always find a way to subvert the original intent, should doing so suit their purposes. The situation with New Zealand’s long-standing Treaty of Waitangi is but one example. Farther afield, peace treaties and armaments treaties between nations are not set in stone. (Even if they are, all too often someone comes on the scene and smashes the stone.) Why would one think that any Treaty between Australia’s First Nations and an Australian Government would be any the more sacrosanct? Already we see reversal of policies in relation to Welcome to Country ceremonies, geographic naming and cultural spaces. Good will has a “best before” date. Few promises last forever. Regardless of the wording of a Treaty, backtracking will remain a constant threat. One of the reasons for confining reparations to past-related circumstances is so that they can be paid as soon as possible after the Treaty deal is done and hence be protected from any backtracking that may be entertained later.

In the case of the Voice Referendum, (many of) Australia’s indigenous people were perfectly reasonable in what they asked of the nation. But it was unreasonable of them to expect that the Referendum would be passed. They may have thought that it would be passed, but it was unreasonable not to consider its defeat as a very real option and hence to prepare themselves mentally and emotionally for that contingency. And so we saw large numbers of indigenous people experience a devastating reaction to the defeat.

In retrospect, one wonders whether it may have been better to secure a Treaty before campaigning for a Constitutional change to entrench a Voice to Parliament. Perhaps there could even have been provision in a Treaty for a Voice of some sort. (And maybe this remains a possibility.) In the event, though, by choosing to run initially with an ostensibly “easier” option and defer the “harder” one until later, proponents of the Voice have been left with an even steeper path to a Treaty.

In actual fact, it seems there never will be a single Treaty encompassing all of Australia’s First Nations people. Instead we are left with a hotchpotch of negotiations, agreements and rebuffs. I suppose it could be argued that one advantage of having multiple treaties is that all the eggs are not in the one basket, so that the dismantling of any of them should leave many others intact. But how pathetic it is that we are reduced to finding comfort in this way.

Given the fraught situation with formal treaties, it could be worth while considering alternatives. One idea would be something akin to a petition or to the condolence books opened by embassies for members of the public to acknowledge the passing of some luminary of the country in question. The conduct of such an operation would not be subject to the approval of any political party. It could be an online project or one involving pen and paper: there are advantages and disadvantages to both approaches. The document would be available for all citizens to sign, with no closing date. Obviously, it would never get everyone’s signature, so it is pointless to focus on numbers. But it may give those who voted against the Voice Referendum a chance to extend the hand of reconciliation and signal good will for the future, without committing themselves to a change to the Constitution. And it may allow those who voted for the Voice to continue their involvement in the reconciliation process. The document might have as its title an Aboriginal word or expression connoting some such concept as rapprochement or togetherness. Being mainly an expression of sentiment, rather than a statement of legalities, it should have a greater chance of approval than more formal arrangements. How meaningful the exercise would be depends on the content of the document and how the numbers are interpreted. Better to take comfort from such friends as one has than rue the fact one doesn’t have more. Admittedly, this is far from the ideal option, but, regrettably, the ideal option appears to be a lost cause in so many jurisdictions. I would welcome seeing other people put forward suggestions for alternatives to a Treaty.

One of the motives for penning this series of essays is to prevent the feeling of rejection, the disappointment, the despair that so many indigenous Australians experienced after the failure of the Voice Referendum. Tragedy compounded tragedy. With more realistic expectations, at least one of these tragedies could have been averted.

In such circumstances, there would ordinarily be a reluctance to expose oneself again, to subject oneself to the possibility of further hurt, to make oneself vulnerable once more. But a number of First Nations people have decided to devote their energies to Treaty. And why not? If a Treaty project is on the table, by all means pursue it. It seems that some First Nations people in other countries have derived benefit from successful conclusion of a treaty. But the pursuit of Treaty should be attended by realistic expectations, both for what can be achieved in the final wording and for how the intentions are subsequently honored in practice. Bearing in mind what I have said about the fickleness of people, and given the nature of politics in Australia, backtracking of some sort is almost inevitable. My suggestion for an alternative Voice provides the opportunity for regular reflection on the status of any Treaty that may be concluded and how its provisions are being honored and complied with. Forewarned is forearmed, as they say. Be disappointed, perhaps, if expectations fail to be met, but don’t be devastated.

Treaty is not the end of the story.