A treaty is essentially a settlement or an agreement arrived at by treating or negotiation. It gives rise to binding obligations between the parties who make it. It acts to formalise a relationship between parties to an agreement.
Treaties contain articles which outline the points of agreement between the parties. A treaty is similar to a contract (e.g. your lease or loan contract) in that both parties usually agree to take on certain responsibilities and duties which are legally binding.
A treaty requires the parties to negotiate and not just consult. Negotiation means both parties come together and work towards an outcome either can accept.
Other words used to describe a treaty are settlement, agreement, pact, covenant, compact or accord. The process of working out a treaty is called 'treating' with someone.
Of all Commonwealth countries, Australia is the only one without a treaty with its Aboriginal population. New Zealand has the Treaty of Waitangi (1840) and Canada gives constitutional protection to its many treaties.
What does Makarrata mean?
Many Aboriginal people use the word 'Makarrata' when talking about treaty. It's a word from the Yolngu people of north-east Arnhem Land and has several layers of meaning: [1]
Peacemaking. Makarrata literally means "a spear penetrating", a traditional practice Aboriginal people used as punishment. If a person was hit by a spear, usually through the thigh, they couldn't hunt or walk properly anymore. This settled them down, forced them to be calm and rest to heal. Hence Makarrata interpretation as "peace after a dispute".
Conflict resolution. Another meaning relates to a negotiation of peace, or a negotiation and an agreement where both parties agree to avoid dispute or bad feelings. This meaning is closely aligned with what many hope a treaty process would look like.
The term was first introduced to non-Aboriginal Australia in 1979 when the National Aboriginal Conference recommended a Treaty of Commitment be entered into between the Australian government and Aboriginal nations. The group decided to use a word from an Aboriginal language for the process and settled on Makarrata. [1]
Aboriginal demands for what should be included in a treaty are as diverse as Aboriginal nations and individuals. Here are some of the main ideas: [2][3][4][5]
Sovereignty. Acknowledge that Aboriginal people have at no time ceded, relinquished or acquiesced any part of their sovereign existence and status. They want a "a space of our own, free from influence of government".
Land rights. Recognition that Aboriginal people have always maintained a property right in land and the natural resources according to their law and customs. They want an acknowledgement that Australia has not been settled. They want freehold, not native title. People who cannot reconnect to their traditional lands need to be included.
Shared power. A sharing of power with non-Aboriginal people through allocated seats.
A guaranteed voice. Previous solutions where an Aboriginal voice was granted via legislation failed as laws can be repealed in an instant. That's why Aboriginal people demand an Aboriginal voice that is enshrined in the Constitution.
Guaranteed consideration of interests. Too often governments don't consider Aboriginal interests in their decisions. A treaty could be an "insurance policy" that puts Aboriginal interests at the forefront of Aboriginal policy.
Recognition. Recognition of Aboriginal people as the First Peoples of Australia and the distinct rights that flow from this, such as rights to language and culture. (This is not referring to the governments 'Recognise' campaign which many Aboriginal people reject outright.) But also recognising the past, the need to first acknowledge what has happened to Aboriginal people ("truth-telling"). For many it's about recognising that Australia was invaded and not colonised.
Reforms. Agreements on the reforms required to reach a more just society and account for Aboriginal dispossession.
Statutory entitlements. This can include reparation, compensation (e.g. for land taken or sites destroyed) and benefit sharing.
Ownership of natural resources. This includes ownership of water, the natural biodiversity on and within the homelands, trees, medicine bushes, fibres, fishing, native animals, especially their habitats and airspace. It also includes all the benefits that come with these resources.
The Uluru Statement From the Heart, a document written by Aboriginal representatives in 2017, contains many of these demands.
John Pilger, a journalist who works tirelessly for the cause of Aboriginal people, sees a treaty as "an effective Indigenous bill of rights: land rights, resources rights, health rights, education rights, housing rights, and more". [6]
A treaty is about "treat—ing" Aboriginal people with respect and dignity.
Kamilaroi woman Natalie Cromb has her own definition: "A Treaty would be the basis upon which the sovereign Indigenous people of Australia and the government could negotiate the terms of rights to land, minerals and resources and the self-governing of communities." [7] For some, sovereignty is even more important than treaty.
Treaty is also a lot about the need of leadership.
One treaty or many treaties?
It is tempting to believe if there was a treaty it is one single treaty between Aboriginal people and the Australian government. But that thought neglects a key characteristic of Aboriginal culture: diversity.
Aboriginal nations are as diverse as any other community of nations, such as the European Union. Having one treaty might appear practical, but in practice would ignore each nation's identity. If it was implemented, some Aboriginal nations might feel misrepresented or not represented at all. One nation can also not speak on behalf of another nation.
Categorising and labelling nations is necessary to get clarity about the number and location of nations.
While some Aboriginal people agree with a single, national treaty, others only accept it as a result of local treaties, which should be negotiated prior.
Lidia Thorpe, a Gunnai-Gunditjmara woman and the first female Aboriginal MP in the Victorian state parliament, subscribes to this view. First, she says, there need to be clan-based treaties as clans "have the direct link back to country", language and lore and know best the priorities of their community. Once local governments have made such treaties, a state-based treaty can follow that encompasses the needs of a region. Finally, a national treaty can emerge based on all state treaties. [8] It's a view shared by several other Aboriginal representatives, as it reflects the diversity of people. [4]
Victoria is also the first state where treaty negotiations started on a state level. The First People’s Assembly is a representative body of 21 elected representatives drawn from five voting regions, and 12 nominated representatives, one from each of the 12 formally recognised traditional owner groups in the state. The Assembly is working with the state government to set up an independent treaty authority, creating a treaty negotiation framework, and creating and administering a self-determination fund. It is also creating a separate Aboriginal electoral roll to manage its elections, which will be independent from government. [9]
A treaty can also help non-Aboriginal people: it can help them step into a new relationship that is honourable and honest and beyond the old relationships. It's an opportunity to leave behind the shame and guilt many Australians feel about their past and accept the (often uncomfortable) truth of Australian history.
Treaty is not about taking power off someone. It's about partnerships in business economy, self-management, self-determination, self-determination and self-governance and recognition of one’s sovereignty.
— Yingiya Mark Guyula, spokesperson for the Yolngu Nations Assembly [10]
A treaty sets all Australians free of the terra nullius lie that the nation we share now is founded upon. We are all diminished when the nation we are founded upon is founded on a lie.
— Chris Sarra, Founding Chairman of the Stronger Smarter Institute [11]
Panel discussion: What is a treaty?
Let’s Talk Treaty panelists include, Wayne Butcher, Monica Morgan, Warren Mundine & Nicole Watson, hosted by Tiga Bayles. Runtime: 54 minutes.
Why do Aboriginal people want a treaty?
The absence of a treaty meant that Australia could be created in 1901 by ignoring Aboriginal peoples. They were set aside as a "dying race" that would not survive white settlement.
The Constitution even declared that they were not to be counted in the census. This reflected the belief that Aboriginal people should be denied the vote, and so not included in electoral calculations.
For Aboriginal people, a treaty would therefore help secure sovereignty and self-determination. More succinct, treaty is about empowerment.
What the people want from negotiated compacts is the right to make their own decisions and control their own lives, economy and land, free from the effects of changing governments. Aboriginal self-determination is yet to emerge in Australia. In North America, the Harvard Project on American Indian Economic Development showed that “in a century of U.S. efforts to improve Indian economic and community conditions, Indigenous self-determination is the only policy that has had broad, positive, sustained results. Nothing else has worked.” [12]
Research from Canada also suggests a link between self-determination, better health and lower suicide rates. [12]
A treaty would also provide a basis for co-existence of non-Aboriginal and Aboriginal people, breaking any Australian government's tendency to make laws for Aboriginal people rather than with them.
They see a treaty as an "insurance policy" to hold the government to account [13] for its (in)actions.
The trauma will not begin to heal until we create ground rules for how to live together. For that reason, a treaty is inevitable.
The Aboriginal Treaty Committee, chaired by Nugget Coombs, was set up in 1979 and ran until 1983. Its aim was to promote the idea of a treaty amongst non-Aboriginal Australians.
Sovereignty—an unwinnable struggle?
Aboriginal people claim sovereignty over their lands, but so does the Australian legal system. Who is right?
Before the Mabo decision governments claimed that Australia was uninhabited no-one's land, terra nullius. But Mabo removed the terra nullius doctrine from the Australian legal system as its basis of sovereignty.
When the Euahlayi people challenged sovereignty over their lands in Australian courts, the Queensland Supreme Court seemed to expand the notion of terra nullius to justify their sovereignty.
In the decision of the Supreme Court of Queensland in the Ngurampaa v Balonne Shire & Anor [2014] QSC 146 known as the Euahlayi Rates Dispute case, Justice Philippedes in her judgment said that Mabo established that: [14]
"At the time of acquisition of Australia sovereignty, international law recognised acquisition of sovereignty not only by contest, cession, and occupation terra nullius, but also by the settlement of inhabited lands whether that process of 'settlement' involved negotiations with and or hostilities against the native inhabitants. The High Court recognised this last mentioned method of the acquisition of sovereignty as applicable in the case of sovereignty." [emphasis added]
"The courts now hold themselves as the protectors of the early illegal regimes,", comments Aboriginal elder Michael Ghillar Anderson, leader of the Euahlayi people, about the court's view.
Tony Abbott's dismissive statement on the evening Justice Philippedes delivered her judgment on Euahlayi Rates Dispute case confirms the struggle the Commonwealth of Australia has in establishing any valid sovereignty:
"Our country is unimaginable without foreign investment. … I guess our country owes its existence to a form of foreign investment by the British government in the then unsettled or, um, scarcely settled, Great South Land." [15]
Roll on, terra nullius! you are very much alive.
— Ray Jackson, president, Indigenous Social Justice Association [16]
Is a treaty likely to happen soon?
Since the 1970s, many non-Aboriginal and Aboriginal advocates have created blueprints for a possible treaty (for example the National Aboriginal Conference, the Barunga Statement, the Aboriginal and Torres Strait Islander Commission).
There are currently about 800 regional agreements with Aboriginal people across this country, which are, in effect, localised treaties. [17] Hence much of the preparation for a treaty has been done already. [12]
Former Labor Prime Minister Bob Hawke in 1988 promised to deliver a treaty but failed to do so (see The Barunga Statement story below).
It is very likely that any treaty involves agreements with business, local governments, local councils, state and federal governments.
Because of the huge implications for Australian politics and law, governments refused to enter serious talks, making a national treaty very unlikely in the near future.
"A treaty will not be developed overnight," says Michael Mansell, an Aboriginal lawyer from Tasmania, "nor should we expect benefits from treaty talks to be delivered at any single moment. The benefits – land, empowerment, a financial base, cultural protection and improved services – will be incremental." [18]
Instead, some people propose to focus on goals that have bipartisan political support, for example constitutional recognition, a suggestion earning strong opposition from Aboriginal people who see it as a token gesture only.
In January 2014, Chair of Prime Minister Tony Abbott's Indigenous Advisory Council, Warren Mundine, suggested that rather than make a single treaty between the federal government and Australia's Aboriginal people in general, individual treaties should be agreed with each nation or language group because no single group can speak for Australia's Aboriginal people to negotiate a treaty. [19]
If the Australian Government signs a treaty with the government of another nation intending that agreement to be legally binding, the Federal Parliament must pass legislation to give effect to that treaty.
The same would apply if treaties were signed between Aboriginal nations and the Commonwealth.
British Columbia took 25 years to negotiate a treaty. [4]
Most people talk about a treaty between Aboriginal people and Australia. Well, who is going to speak on behalf of Aboriginal people?
— Warren Mundine, Chair, Indigenous Advisory Council [19]
Treaties with & recognition of indigenous peoples around the world
Country
Indigenous people
Treaty or recognition
Canada
Indian, Inuit (once called 'Eskimos') Metis peoples (people of mixed descent)
The Constitution Act 1982 entrenches Aboriginal rights in the constitution and requires the federal and provincial governments to consult with Aboriginal people prior to making any legislation that relate directly to them.
Finland
Sami (once called Laplanders)
The Finnish Constitution recognised the Sami in 1995 which gave them a right to maintain and develop their language, culture and traditional livelihood. Since 1996, the Sami have constitutional self-government concerning their language and culture in their homelands. They are entitled to service in their own language in official matters.
New Zealand
Māori
The 1840 Treaty of Waitangi recognised Māori ownership of their lands, forests and other properties, and gave the Māori the rights of British subjects.
Norway
Sami
Sami Act 1987 set up a Sami Parliament. In 1988 the Norwegian Parliament passed an amendment to the constitution recognising Sami constitutional rights, but not the Sami as a people.
Sweden
Sami
1990 – establishment of a popularly elected Sami Parliament to promote Sami culture and economic development. The Swedish Constitution recognises Sami people since 2010.
United States
Indian, Inuit and Aleut peoples
More than 500 treaties from 1778 (Delaware) to 1871 (Apache). The Self Determination Act 1975 and the Self-Governance Act 1994 provide a degree of decision-making power at the tribal level.
A treaty could remedy the defects in how Australia was settled. It could provide redress for historic claims and enable a new agenda of Aboriginal self-empowerment.
Treaties also typically recognise the sovereignty of Aboriginal peoples, subject to the laws of the nation. Australia is in a difficult situation here (see box below).
Tasmanian-based long-term Aboriginal rights campaigner, Michael Mansell, speaks for many when he advocates for legal certainty in a treaty document.
"A treaty would impose on governments around Australia obligations that they would have to comply with the new treaty laws and it also creates rights for Aboriginal people that have been denied to us in the past and those rights would include recognition of customary law, the right to land, the right to make decisions over Aboriginal people and the right to raise our own economy." [19]
Treaty rights need to be protected within the legislative systems to avoid governments breaching the treaty once it is settled. It would also need to safeguard against watering down the agreement later on, as it happened with the native title legislation.
A lot of content of a treaty has already been drafted.
The National Aboriginal Conference (NAC), established by the federal government in 1977 to provide a forum for the expression of Aboriginal views, already called for a treaty, or Makarrata, in 1979. It established a national framework of significant points after consulting with Aboriginal people across about 60% of the Australian continent over a period of several years. From these consultations, 27 significant points of interest continued to emerge repeatedly from many different communities. [23] These 27 points can be used as a basis for treaty negotiations.
Treaty – the tricky bits
A treaty can be governed by international or national law – but what is the difference?
If governed by national laws, a domestic treaty under Australian law would require Aboriginal people to cede their sovereignty. [24]
Another tricky issue is whether Aboriginal people are citizens of the Commonwealth.
If they are not, then a treaty could only be negotiated with Aboriginal people as 'aliens' and foreigners to the Australian legal system. If they are, then some Australian politicians position is to refuse to negotiate a treaty with their own citizens. [24]
Section 51(26) is the only section in the Australian constitution that permits the Australian government the power to negotiate a treaty (and anything else) with Aboriginal people.
Sovereignty is an important prerequisite for a treaty. But Australia has a problem: Under international law, Australia's claim of sovereignty is still based on the Crown's claim of terra nullius, which has been proven wrong following the High Court's Mabo decision. Hence, under international law, Australia cannot treaty with people who do not exist. Aboriginal people have to first recognise Australia's sovereignty to co-exist along their own. They did this in the Uluru Statement from the Heart in May 2017 when they declared: "[Our sovereignty] has never been ceded or extinguished, and co-exists with the sovereignty of the Crown". [25]
The Barunga Statement
During the 1988 bi-centenary of British settlement in Australia, Prime Minister Bob Hawke attended the Barunga Festival in a small Aboriginal community south of Katherine.
There, the Chairmen of both the Northern and Central Land Councils, Galarrwuy Yunupingu and Wenten Rubuntja, presented the Prime Minister with the Barunga Statement.
The Barunga Statement called on the Australian government to recognise the rights of Aboriginal land owners and to formalise a treaty with them. It was modelled on the 1963 Yirrkala Petition which a previous generation of Yolngu leaders had delivered to the House of Representatives.
On receiving the Barunga Statement, Prime Minister Hawke vowed that his government would enter into a treaty with Aboriginal Australians by 1990, a promise he never realised. Instead, he favoured a 10-year process of reconciliation.
Aboriginal group Yothu Yindi composed a song, "Treaty”, to protest the failure of the Australian government to honour the Prime Minister’s promise.
My husband wrote the song for Treaty because nothing happened after the Barunga Festival. My husband was disappointed the promise was broken, when first it was said there would be Treaty and then nothing happened.
— Yalmay Yunupingu, wife of Dr Yunupingu from Yothu Yindi [26]
Treaty (Yothu Yindi)
Well I heard it on the radio
And I saw it on the television
Back in 1988, all those talking politicians
Words are easy, words are cheap
Much cheaper than our priceless land
But promises can disappear
Just like writing in the sand
Treaty yeah treaty now treaty yeah treaty now
...
This land was never given up
This land was never bought and sold
The planting of the union jack
Never changed our law at all
Now two river run their course
Separated for so long
I’m dreaming of a brighter day
When the waters will be one
Treaty yeah treaty now treaty yeah treaty now
...
Would you support or oppose a change to the Constitution to set up a representative Indigenous body...?
To what extend do you agree or disagree... [that] there should be formal agreements between Australia's governments and Australia's Indigenous peoples to recognise their rights?
The Australian government has realised it needs a capable expert to help formulate treaties with Aboriginal nations – YOU!
In the pursuit of these treaties, which section of the Constitution could be used to negotiate treaties with Aboriginal nations?
Tip: Read up on which parts of the Constitution changed after the 1967 Referendum.
Further resources
Fighting In Solidarity Towards Treaties (FISTT) is a grassroots, social and political initiative aiming to "represent and liberate Australia's First Nations people". It aims to help national negotiations for sovereignty and treaty. FISTT is non-profit and not government funded.
Other treaty resources
Grassroots group Respect and Listen collects information about treaty-related events.
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