What actually is a treaty? What could it mean for Indigenous people?

Nobody knows why the British didn’t negotiate a Treaty with the First Peoples, as was custom at the time. But Australia is now an outlier. ‘The Founding of Australia. By Capt. Arthur Phillip R.N. Sydney Cove, Jan. 26th 1788’, oil sketch painted in 1937, by Algernon Talmage. Wikimedia Commons, CC BY^[8][9]

Whatever the reason, the result is Australia is an outlier. As a result, many Aboriginal and Torres Strait Islander peoples believe the moral and legal basis of the nation is “a little legally shaky^[10]”.

What is a Treaty?

The absence of a Treaty is one of the major challenges facing the Treaty debate in Australia. Without a history of treaty-making, the concept of what a treaty is or involves remains vague for many people, including government^[11].

It means some people can argue a Treaty is dangerous or it would lead to the breakup of the nation. This makes little sense because a Treaty is a marriage not a divorce^[12]. It’s about bringing communities together and building strong relationships based on self-determination.

Governments might argue they’re already engaged in treaty-making. There are many examples of bureaucracy adapting its policy formulation and delivery to reflect community aspirations for a greater say in the delivery of services.

Such “partnerships”, “co-design” and local decision-making with government are valuable. They mark an important shift in promoting Aboriginal and Torres Strait Islander peoples’ participation in policy development and service delivery. But simply calling an agreement a “treaty” doesn’t make it a treaty.

Australia has signed up to a range of international legal instruments^[13] that concern the rights of Indigenous peoples. These legal instruments set a clear standard for what makes an agreement a treaty. A treaty must satisfy three conditions^[14].

1. A treaty acknowledges Indigenous peoples are a distinct political community different to other Australians. This is because Indigenous peoples are the only group of Australians who owned, occupied, and governed the continent before colonisation. This recognition also acknowledges the historic and contemporary injustices that invasion has caused

2. A treaty is a political agreement reached by a fair process of negotiation between equals. Negotiation^[15] helps ensure everyone’s interests can be considered. But securing a fair negotiation process can be difficult. In Victoria, the First Peoples Assembly and State government have agreed to a Treaty Negotiation Framework^[16] that sets out principles to guide Treaty talks

3. Treaties involve both sides committing to responsibilities, promises and principles that bind the parties in an ongoing relationship of mutual obligation and shared responsibility. Most importantly, while the outcomes of any negotiation will differ according to the parties, a treaty is built on the recognition of Indigenous peoples’ inherent sovereignty. As part of this, a treaty will provide for some degree of self-government. What this looks like in practice will be worked out in negotiations.

A treaty will also include a range of other elements. It could include financial compensation, return of land, formal recognition of historic wrongs, and symbolic gestures of reconciliation, such as apologies.

Treaties are unique agreements. As Professor Megan Davis explains^[17], they are aimed at “settling fundamental grievances, and establishing binding frameworks of future engagement and dispute resolution”.

Maroochy Barambah looks on during the signing of an Indigenous Treaty commitment statement at Parliament House in Brisbane. Jono Searle/AAP

Modern treaties are different from historic treaties

There is a long history of treaty-making all over the world from which Australia can draw lessons. But it’s important to note modern treaties differ from those negotiated in colonial periods. They are more technical and legally complex. They are also negotiated against a long history of inequitable relationships.

They will also be subject to Australian law. While colonial-era treaties were international agreements between two sovereign communities, modern treaties will be subject to Australian law.

Co Chair of the First Peoples Assembly of Victoria Marcus Stewart at the Victorian Parliament in Melbourne urging parliamentarians to pass the legislation to enable the establishment of the Treaty Authority in that state. Joel Carrett AAP

Treaty is happening now

Treaty is a longstanding aspiration^[18] of First Peoples in Australia. It is only in recent years, however, governments have decided to talk treaty^[19].

Progress has been slow, but important steps have been taken at the state and territory level. For instance, in February this year, the Queensland government introduced the Path to Treaty Bill 2023 into the state parliament. The bill will establish and finance an independent First Nations Treaty Institute to “help prepare and support First Nations people for treaty negotiations with the state^[20]”.

That same month, the South Australian government introduced a bill to establish a Voice to the Parliament^[21], with a treaty process to follow.

In Victoria, after several years of patient work, negotiations between the First Peoples Assembly and state government are expected to begin by the end of the year^[22]. Similar processes are underway in the Northern Territory, Tasmania and the ACT.

Every treaty process has its own challenges and complications and it’s too early to tell whether these processes will result in meaningful settlements. Nevertheless, they demonstrate two key things.

First, Treaty is a matter of political will, not legal impossibility. Second, looking towards the referendum later this year, the existence of treaty processes across the country suggests Australians may be willing to deal with the unfinished business of colonisation and its consequences.

Read more https://theconversation.com/what-actually-is-a-treaty-what-could-it-mean-for-indigenous-people-200261