Inside Story

Treaty-making gathers pace

Most state and territory governments have commenced negotiations with First Nation peoples

Harry Hobbs 17 March 2023 2278 words

The frontrunners: chair Eleanor Bourke (second from right) at the launch of Victoria’s Yoorrook Justice Commission in March last year. Diego Fedele/AAP Image

When Australians vote in this year’s referendum they’ll be deciding whether the Voice to Parliament — the first plank of the Uluru Statement’s call for Voice, Treaty and Truth — should be enshrined in the Constitution. The referendum is big news, but so too are the historic steps many states and territories are taking on the Uluru Statement’s second plank, Treaty.

Since 2016, Victoria, Queensland, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory have all committed to talk about treaties with First Nations peoples. These processes are still at an early stage, but their challenges, complications and accomplishments provide important lessons for a national treaty process.

First, a refresher. Treaties are accepted around the world as a means to resolve differences between Indigenous nations and those who colonised their lands. They have been struck in North America and New Zealand and are being negotiated in Canada. Australia is an outlier: no treaties were negotiated when the British arrived, or at Federation, or in the years since then. Without any formal treaty setting out how to share the land, many First Nations peoples believe Australia’s moral and legal foundations are, in NT treaty commissioner Mick Dodson’s words, “a little… shaky.”

Many types of agreements have been negotiated between First Nations peoples and governments, but international law sets a clear standard for what makes an agreement a treaty. Treaties are formal instruments reached through a process of respectful negotiation in which both sides accept a series of responsibilities. They provide redress for past injustices, acknowledging 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 creates structures of culturally appropriate governance and establishes means of decision-making and control. Treaties are more than service-delivery agreements and provide more than symbolic recognition.

So, where are the states and territories up to?

Victoria: The Victorian treaty process is the most advanced. In 2018, after several years of consultations, the state parliament passed Australia’s first treaty legislation, the Advancing the Treaty Process with Aboriginal Victorians Act, which created a legislative basis for negotiating a treaty and set out a roadmap for that process.

First, elections for an Aboriginal representative body, the First Peoples’ Assembly, were held. Although turnout was low, the assembly has worked hard to build community support and has had some notable successes. The second step focused on building the key institutions necessary to support treaty negotiations. The assembly and the state government worked steadily and in partnership to accomplish this challenge.

The work has been impressive: an independent Treaty Authority has been created to oversee and facilitate negotiations and a self-determination fund set up to finance Aboriginal Victorians in their negotiations. The Yoorrook Justice Commission, Australia’s first comprehensive truth-telling commission, has also come into being.

In October 2022, the two parties reached agreement on a Treaty Negotiation Framework setting out the principles that will guide negotiations. New elections for the First Peoples’ Assembly will be held between May and June this year. The first treaty negotiations in Australian history are expected to begin by the end of 2023.

Northern Territory: While the patient work in Victoria appears to be heading in the right direction, recent developments in the Northern Territory emphasise the challenges involved in developing treaty processes 200 years after colonisation. Following two years of consultations around the territory, the NT Treaty Commissioner handed his report to government in March 2022.

Recognising that “the time for action has arrived,” the report recommended a truth-telling process, a Territory-wide agreement to set out broad parameters, and a series of individual treaties with First Nations or coalitions of First Nations. The aim would be “self-government, economic independence and reparations.” The report also set out a clear implementation process.

Welcoming the report’s release, Aboriginal affairs minister Selena Uibo noted that “significant support for treaties” clearly existed across the territory, and that “the Territory Labor government is proud to advance this process.”

But something changed: on 29 December, during the Christmas–New Year shutdown, the government quietly released its formal response in a statement on the Office of Aboriginal Affairs website. The independent NT Treaty Commission would be abolished and the Office of Aboriginal Affairs would run its own eighteen-month process of consultations to “test” whether Aboriginal Territorians agree with the report’s recommendations.

Queensland: The treaty process stepped up a gear in Queensland last month when premier Annastacia Palaszczuk introduced the Path to Treaty Bill. The legislation establishes a First Nations Treaty Institute tasked with preparing a framework for treaty negotiations, and a Truth-telling and Healing Inquiry to examine the continuing impacts of colonisation. As Palaszczuk explained, the bill “signals to the rest of Australia and to other nations that Queensland is ready and willing to confront that past and to listen to the painful stories that need to be told.” The move follows several years of consultations, as well as a commitment in the 2021–22 budget to provide $300 million in a Path to Treaty Fund to support the process.

South Australia: South Australia was one of the first jurisdictions to commit to a treaty process in 2016, though it was unclear exactly what the state meant by “treaty.” Some observers worried that the government was more interested in negotiating something like a service-delivery agreement. In any event, the process was abandoned in 2018 by the incoming Liberal government under Steven Marshall.

Treaty is back on the agenda following Labor’s return to government last year. On election night, incoming premier Peter Malinauskas committed the new government to “delivering on a state-based voice treaty and truth for the Aboriginal people of our state.” Respecting the sequencing of the Uluru Statement, the government has prioritised Voice. In February this year, it introduced a Bill to establish a First Nations Voice to state parliament. The government is expected to restart the treaty process later this year.

Tasmania: Treaty is not only the province of the Labor Party. In 2021 the Liberal government in Tasmania committed to finding out from Aboriginal people how the state can pursue reconciliation. The government responded positively to a report by former governor Kate Warner and law professor Tim McCormack recommending a truth-telling and treaty process. In December last year, Aboriginal affairs minister Roger Jaensch announced a new advisory group to work with government to design an Aboriginal-led truth-telling and treaty process.

Australian Capital Territory: Having declared it was open to talking treaty in February 2018, the ACT government provided funding in the 2021–22 budget to facilitate conversations with traditional owners to understand what they meant by treaty and hear how a treaty process might be developed. The report on those conversations was released, to mixed reviews, in July 2022. Aboriginal and Torres Strait Islander affairs minister Rachel Stephen-Smith apologised on behalf of the government that the process “did not engage as broadly as we had intended” and acknowledged a general feeling that healing was required before treaty should be pursued. Since then, focus has shifted to the first native title claim in the ACT.

Elsewhere: Neither Western Australia nor New South Wales have made commitments to treaty negotiations. Over the last few years, however, Western Australia has negotiated two comprehensive native title claims that several people — including me — have likened to a “lower-case t treaty.” Although they are significant agreements, they were not negotiated via a formal treaty process and therefore don’t cover the full range of issues expected of a treaty.

New South Wales is so far unmoved, though the 25 March state election might change this. The Liberal government supports action at a federal level, backing the Voice referendum in principle, but has no plans to implement a state-based Voice or treaty process. In contrast, the Labor opposition has pledged $5 million towards a year-long consultation with Aboriginal communities to determine if a treaty is desired and, if so, what it should look like. Those conversations would not begin until after the referendum later this year.

The federal government hasn’t made any formal commitments to treaty negotiations either. It is focused, quite rightly, on the Voice. Nevertheless, the Albanese government is committed to implementing the Uluru Statement “in full.” Following the referendum, attention is expected to shift towards a Makarrata Commission to “work on a national process of treaty-making and truth-telling.” Some reports suggest the government might move even faster. In October last year, it provided $5.8 million to the National Indigenous Australians Agency to commence work on establishing a Makarrata Commission.

Several themes are visible in these emerging treaty processes. The first is definitional: just what is a treaty? The fact that no treaties were ever formally signed in Australia makes modern negotiations more challenging. Not only do we need to develop brand new institutions and mechanisms to facilitate fair negotiations, but also the whole concept of what a treaty is or involves remains vague for many people, including governments.

Ambiguity on this central point is unlikely to work in favour of First Nations peoples. Indeed, uncertainty allows some people — like former prime ministers John Howard and Tony Abbott — to argue that a treaty would be divisive and could even lead to the break-up of the nation. Ambiguity can also create space for governments to claim that revamped strategies to engage with First Nations communities mean they are already working on treaty-making. Or that existing arrangements in relation to matters like native title and land rights are sufficient.

Policies aimed at transferring government service delivery to First Nations communities are important, but they are not treaties. Already concerns have been raised on this point. Many saw the initial SA process as a vehicle for the government to push service delivery onto Aboriginal nations. Similar complaints have been heard in the Northern Territory and Queensland.

Other challenges exist. Some Indigenous rights campaigners have called for an agreement governed by international law. While the colonial-era treaties signed in North America and New Zealand were international agreements, modern treaties are different. The treaty processes under way will draw inspiration and principles from international law, but they will be subject to Australian law.

A second key theme is the question of government commitment. Many First Nations people and communities are distrustful of governments and cynical about their promises. An official public commitment to treaty — a statement on election night, or a signing ceremony on Country — breeds hope and anticipation. The passage of legislation builds further expectations. While all understand that treaty-making will be challenging and difficult, inconsistent government action can threaten the viability of the process.

The NT government’s decision to walk away from the Treaty Commission’s report has caused considerable alarm. Yingiya Guyula, the independent member for Arnhem Land, was scathing, declaring that “it’s the same old story”: “My people have always been saying they are ready for a long time and the commissioner listened to that. But the government was not and is still not ready for treaty.” Larrakia elder Eric Fejo agreed: “They’re delaying it after spending millions of dollars, just to shut us up, because they already had the answer.”

The Queensland process is also weathering these challenges. In June 2022, Jackie Huggins, co-chair of the Treaty Advancement Committee, expressed her “frustration” at the government’s seven-month delay in releasing her report. The introduction of the Path to Treaty Bill in February 2023 indicates the government is committed to progressing talks, but questions remain.

That same month the state government proposed to override the state’s Human Rights Act to make breach of bail an offence for children — despite evidence this will disproportionately affect First Nations people. As the Queensland Aboriginal and Torres Strait Islander Child Protection Peak observed, “This seems directly at odds with the Queensland government’s intention to cultivate a new relationship with First Nations peoples as part of the Path to Treaty.” Whether and how governments can prepare themselves to engage fairly and constructively in treaty processes will go a long way to determining their success.

Treaty-making is challenging, but there are green shoots. The slow and steady approach in Victoria appears to be paying dividends. Community support for the treaty process has grown, and the Liberal opposition has come on board. Bipartisanship is important. Major structural reforms to the framework of governance in Australia are almost never achieved without a broad base of political support.

Developments overseas have also helped propel these processes. In 2021, Canada enacted legislation aimed at implementing the UN Declaration on the Rights of Indigenous Peoples. The UNDRIP sets a standard for negotiations and for settlement outcomes. Australia has endorsed the declaration, but it does not have legal force here. Nevertheless, Australian governments are increasingly familiar with the UNDRIP and refer to its provisions within their treaty processes. At the federal level, the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs is inquiring into the application of the UNDRIP in Australia. These are promising signs for the prospects of treaty-making.

Looming over these developments is the referendum. If it succeeds, the government will likely rely on the expertise and advice the Voice could provide to develop a Makarrata Commission. Just how that national body integrates and supports the various state and territory treaty processes will require careful thought.

If the Voice fails at the referendum, on the other hand, it is hard to know how the federal government will respond. It is worth noting, however, that the states and territories kickstarted their own treaty processes because they were “not convinced that you can wait for a national process that has never ever delivered in relation to righting these wrongs.” Regardless of the outcome, treaty-making is well and truly on the agenda for governments across Australia. •