When Queensland’s deputy premier Jackie Trad announced a conversation about treaty-making last week, her state joined Victoria and the Northern Territory in initiating formal agreement-making processes with Aboriginal and Torres Strait Islander peoples. These are significant developments: as the Uluru Statement from the Heart records, treaty-making is a key aspiration of Indigenous Australians.
The deputy premier’s announcement also reflected the growing divide between the major parties. While the federal Coalition has ruled out not only a constitutionally entrenched Voice to Parliament but also a treaty process, Labor states and territories are listening and acting.
Indigenous leaders have long argued that the quest for bipartisan support is not necessarily beneficial to their interests, but one-sided support also carries its risks. If treaties come to be associated only with the Labor side of politics, there is a danger that any process or agreement struck by Labor governments will last only as long as the parliamentary term in which that party governs.
The $1.3 billion agreement between Western Australia’s Coalition government and the Noongar people showed that treaty-making need not be a partisan issue. Although that deal — the largest and “most comprehensive” Aboriginal land agreement in Australian history — was negotiated outside an explicit treaty process, its size and scope qualifies it as Australia’s first treaty. It shows that both sides of politics are capable of negotiating innovative agreements that recognise and empower Indigenous Australians.
Treaties are accepted globally as a means of reaching a settlement between Indigenous peoples and those who have colonised their lands. They have been struck in the United States and New Zealand, and are still being negotiated in Canada. But no treaty was signed between Aboriginal and Torres Strait Islander peoples and the British Crown at first contact or in the early years of Australia’s European settlement.
Treaties are formal instruments reached through a process of respectful negotiation in which both sides accept a series of responsibilities. In particular, treaties acknowledge that Indigenous peoples were prior owners and occupiers of the land and, as such, retain a right to self-government. At a minimum, a treaty recognises or establishes structures of culturally appropriate governance and a means of decision-making and control.
Under the 1998 Nisga’a Final Agreement, for instance, Canada recognised that the Nisga’a people have a right to exercise self-government over a range of local and internal affairs, including lands, language, culture, education, health, child protection, traditional healing practices, fisheries, wildlife, forestry, environmental protection and policing. Federal and provincial laws continue to apply on Nisga’a lands where an inconsistency or conflict arises.
Progress has been made in Australia, though only at state and territory level. Each case has been challenging, and some have been more successful than others.
Queensland: Sensibly, the negotiations announced by Jackie Trad last week will not begin for several years. Experience shows that it is important that both the government and Aboriginal and Torres Strait Islander peoples are fully prepared before formal talks begin.
For Indigenous nations, this means having a clear sense of what a treaty might mean for their communities, as well as a broad consensus on a negotiating position. Preparing for treaty negotiations can also enable Indigenous communities to engage in nation-(re)building, a valuable process regardless of the content, or even the completion, of a treaty. For the government, it is equally important that non-Indigenous Queenslanders understand what a treaty is and what its potential impact will be.
Reflecting these preliminary steps, the government has established a bipartisan eminent panel of Indigenous and non-Indigenous Queenslanders, with Indigenous academic Jackie Huggins and former federal attorney-general Michael Lavarch serving as co-chairs. Their responsibility is to provide leadership and engage with key groups across the state. A treaty working group will lead consultations with Aboriginal and Torres Strait Islander communities, allowing them to discuss and reach agreement on what a treaty might contain. These steps follow similar processes in Victoria and the Northern Territory.
Victoria: Although the state Labor government committed to entering treaty negotiations in 2016, Aboriginal Victorians felt that they weren’t ready to commence any process and expressed considerable uncertainty as to what a treaty might look like. An Aboriginal Treaty Working Group and a Treaty Advancement Commission were established to maintain momentum and keep Victorians informed.
Consultation was recognised as critical. The working group led two rounds of community consultations in 2016 and 2017. Individuals could also nominate to run treaty circles and hold discussions in their local area, and an online “message stick” was created to allow others to have their say. Around 7500 Aboriginal Victorians (out of a 2016 self-reported total of 47,788) were consulted or engaged with directly through this process.
The result was the creation of a First Peoples’ Assembly, whose members will be elected later this year. Twelve representatives will be elected from twelve formally recognised traditional owner groups and twenty-one representatives will be elected from five voting regions based on local population numbers. An Elders Voice will also be established to guide the assembly’s work and provide cultural strength and integrity.
The assembly will not negotiate treaties. Instead, as set out in legislation, it will administer a self-determination fund to support treaty negotiations and will work with the government to develop a treaty framework to guide negotiations between Indigenous nations and the state. Once that framework has been developed, treaty negotiations will commence. Significantly, the First Peoples’ Assembly will not then be disbanded but will continue to serve as a standing representative body of Aboriginal Victorians — a Voice to the Victorian Parliament.
Northern Territory: In September 2016, incoming chief minister Michael Gunner declared that his government would establish a subcommittee on Aboriginal affairs to “drive public discussions on a treaty.” No firm commitment followed, but a treaty remained on the government’s agenda.
Eventually, in June 2018, the chief minister and representatives of the four Aboriginal Land Councils signed a memorandum of understanding committing the parties to a process of consultation. The signing took place at the Barunga Festival, thirty years after prime minister Bob Hawke’s promise that Australia would enter into a treaty with Indigenous peoples.
The Barunga Agreement is intended to initiate a consultation process that will lead to a treaty negotiation framework. The signatories also agreed to several guiding principles, including that Aboriginal Territorians never ceded sovereignty of their lands, seas and waters, and that the treaty should benefit all Territorians. Although the agreement is not legally enforceable, all parties have signalled their commitment to implement its provisions in a “transparent, consultative and accountable manner.”
Earlier this year, Professor Mick Dodson was appointed treaty commissioner. His consultations with Aboriginal Territorians are expected to take several years.
South Australia: Those emerging treaty processes are political in nature, which means that the situation is complex and subject to change — as has been the case in South Australia. There, in December 2016, the Labor government announced that it would commence treaty negotiations with the three Indigenous nations whose traditional lands sit within state boundaries. Roger Thomas, a senior Kokatha and Mirning man, was appointed treaty commissioner to lead consultations on a framework for negotiation, and on 22 September 2017 the first explicitly recognisable treaty discussions in Australia commenced between South Australia and the Ngarrindjeri Nation.
After the Labor government lost office in March 2018, though, the new Liberal premier, Steven Marshall, placed negotiations on hold. Then, just two months later, and on the same day the Northern Territory government signed the Barunga Agreement, the premier announced that his government would abandon the process.
Western Australia: Not all Liberal governments have rejected treaty-making. The settlement reached by the Noongar people and the Western Australian Liberal-National government was negotiated as part of a native title claim, but its size and scope mean that it qualifies as Australia’s first treaty.
Several parliamentarians recognised this at the time. After he was notified that the Noongar people had voted to accept the settlement, premier Colin Barnett issued a statement noting that the “breakthrough agreement” was an “extraordinary act of self-determination by Aboriginal people… provid[ing] them with a real opportunity for independence.” Later that year, the state’s deputy opposition leader, Roger Cook, explained in parliament that, “by its very nature, the Noongar agreement is in fact a classic treaty.”
The Noongar Settlement covers around 200,000 square kilometres and covers rights, obligations and opportunities relating to land, resources, governance, finance and cultural heritage. It recognises the Noongar people as a distinct community, establishes a limited form of self-governance, and provides funding for its operation. This treaty doesn’t recognise self-government rights to the same extent as its modern counterparts in Canada, but those mechanisms of self-governance may develop in the future.
Revealing some of the challenges in treaty-making, however, the Noongar Settlement has yet to take effect. In February 2018, some Noongar people lodged objections to the registration of the agreement with the National Native Title Tribunal. The registrar struck out those objections, but the applicants have sought judicial review of that decision in the Federal Court. Those hearings have not yet taken place, and the settlement will only commence if the applications are dismissed.
The abandoned South Australian process and the ongoing difficulties in implementing the Noongar Treaty suggest that treaty-making faces a fundamental challenge. Treaties are political agreements that require ongoing support from both sides. Without that support they will fail.
Canada’s experience suggests several further challenges. Negotiations should be structured in a manner that minimises inequality in bargaining power. Indigenous nations should be resourced appropriately in order to reach broad consensus on their aspirations and promote their interests effectively. Settlements should meet Indigenous expectations, especially on the size and scope of self-government powers. And disputes over the interpretation of treaty terms should be adjudicated by an independent arbiter.
Indigenous communities and governments contemplating treaties should be considering these issues now. Their resolution will be vital to the ultimate success of any treaty.
Unfortunately, one challenge is outside their control: the involvement of the federal government. No definitive statement has been forthcoming, but in his Press Club address earlier this month Indigenous Australians minister Ken Wyatt suggested that the Commonwealth would leave treaty processes to the states and territories. This is problematic for at least two reasons.
Federal government involvement is not legally necessary — the states and territories have the authority to sign treaties and legislate to give them legal force — but the federal parliament may invalidate any settlement. Under section 109 of the Constitution, Commonwealth legislation prevails over inconsistent state legislation to the extent of any inconsistency, and the terms of any state treaty could potentially be overridden by Commonwealth legislation grounded on the races power in section 51(xxvi).
Federal government involvement is also preferable for another reason. Unless state governments agree among themselves to an appropriate minimum standard, treaty rights are unlikely to be harmonised across the country. What constitutional lawyer Megan Davis has characterised as the “uncoordinated pursuit of treaty across the federation” may lead to wildly different settlement terms. This will be a particular problem for Indigenous communities whose traditional lands cross state borders, but the risk that some processes will result in weaker settlements is a problem for all state and territory treaties.
There is, though, a clear road map for Commonwealth involvement. In the Uluru Statement from the Heart, Aboriginal and Torres Strait Islander peoples called for the establishment of two organisations: a constitutionally enshrined national representative body to advise the federal parliament (known as a Voice to Parliament); and a Makarrata Commission to supervise agreement-making between governments and First Nations and truth-telling about Australia’s history.
A Makarrata Commission could resolve legal complications that arise within a federation and maintain political momentum for treaty. By setting out a clear process of negotiation it could also manage the risk that a significant disparity in power, resources and capacity will affect the process and the terms of any agreement.
Aboriginal and Torres Strait Islander peoples say that the Voice is their first priority, partly because a national representative body could ensure that the design of the Makarrata Commission reflects their aspirations. This is critical if treaties are to be effective.
The state and territory treaty processes have their challenges, but they are valuable and should continue. As the Noongar Settlement demonstrates, innovative agreements can secure important outcomes for Aboriginal and Torres Strait Islander communities. In propelling the debate forward, these processes are also building pressure on other governments within Australia.
Treaties will not resolve all of the challenges that Indigenous Australians face. But they signal a commitment by government to listen to Aboriginal and Torres Strait Islander peoples and meaningfully address their aspirations. The federal government should reconsider its position and commit to establishing a Makarrata Commission. That commission should be designed by Indigenous representatives serving on a First Nations Voice. •