Indigenous treaties in Australia

Indigenous treaties in Australia describe legal documents defining the relationship between Indigenous Australians (that is, Aboriginal Australians and Torres Strait Islanders) and the Government of Australia or the government of an Australian state or territory. As of 2020 there are no such treaties in existence.

There have been some moves made at state and territory level to develop a treaty process, boosted by the Victorian Government's establishment of a legal framework for negotiations to progress, announced in 2016 and with the election of the First Peoples' Assembly in 2019. Support shown for Indigenous issues by the June 2020 Black Lives Matter rallies across Australia has also provided an impetus for progress on the matter.

Background

The objects of a treaty between governments and Indigenous peoples may include: provision of practical rights and compensation; initiation of a formal process of reconciliation between the group and government relating to past grievances; and the framework for some type of self-determination for individual peoples or groups. Research by the Harvard Project on American Indian Economic Development shows that self-determination is an essential component in redressing entrenched disadvantage.[1]

Many Aboriginal Australians have said that a treaty or treaties would bring them real as well as symbolic recognition, and national debate has been occurring for many years on the topic, alongside related matters such as Indigenous recognition in the Australian Constitution, land rights, and programs aimed at reducing disadvantage such as such as Closing the Gap. The type of treaty envisaged is a formal agreement which defines the relationship between government and First Nations peoples, and could include binding contracts on specific issues as well as practical measures relating to health and education.[2]

Colonial administrations in New Zealand and Canada negotiated treaties with local Indigenous people during early contact, through the Treaty of Waitangi and the Numbered Treaties respectively.[3]

History

The concept of a treaty goes back to the early years of the Australian colonies. In 1832 the Governor of Van Diemen’s Land (now Tasmania), George Arthur remarked in the aftermath of the Black War in the colony that it was “a fatal error...that a treaty was not entered into with the natives". He recommended to the Colonial Office that, before the colonisation of South Australia, an understanding be reached with the Aboriginal peoples there, in a bid "to prevent a long-continued warfare".[4] Notably, the Letters Patent establishing the Province of South Australia of 1836 (unlike the South Australia Act 1834, which it amended), included recognition of the rights of the Aboriginal peoples of South Australia.[5][6]

The only pre-21st century attempt to negotiate a treaty with Indigenous Australians was what came to be known as Batman's Treaty. This was an agreement between John Batman, a pastoralist, businessman and coloniser, and a group of Wurundjeri elders, for the purchase of land around Port Phillip, near the present site of Melbourne[7] The so-called treaty was implicitly declared void on 26 August 1835 by the Governor of New South Wales, Richard Bourke,[8] in order to preserve the concept of terra nullius: the idea that Australian land belonged to no-one before British colonisation.[9][10]

An Indigenous treaty was first promised by Prime Minister Bob Hawke in 1988 after receiving the Barunga Statement from Aboriginal elders, which called for such a treaty to be concluded. Despite public interest and growing support, concerns were raised over possible implications of such a treaty, such as financial compensation.[11][12]

21st century

In 2017, Prime Minister Malcolm Turnbull rejected calls for an Indigenous voice to parliament, an advisory body which would be enshrined in the Constitution that could lead to a treaty.[11][12]

With no progress made towards an Indigenous treaty at federal level (despite decades of debate[4]), in the early 21st century a number of states and territories began treaty negotiations with their Indigenous peoples.[2] The 2017 Uluru Statement from the Heart included the request: "We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history"[13] (Makarrata being a Yolngu word for "a process of conflict resolution, peacemaking and justice"[14]).[15]

In July 2019, Ken Wyatt, recently appointed to the new role of Minister for Indigenous Australians, gave an address to the National Press Club, in which he spoke of the theme of NAIDOC Week 2019: "Voice. Treaty. Truth.". He spoke of the development of a local, regional and national voice, and said "with respect to Treaty, it's important that states and territory jurisdictions take the lead. When you consider the constitution, they are better placed to undertake that work".[15][16][17]

With the Victorian Government's creation of a legal framework for Indigenous treaty negotiations in 2018 with their First Peoples' Assembly, the debate rose to prominence across Australia again.[4]

State and territory treaty processes

The Victorian Government of Daniel Andrews was the first at state level to pass a legal framework for Indigenous treaty negotiations, in 2018,[2] but there have been various moves made to instigate such a process in all states and territories in the 21st century.

Issues covered by an Indigenous treaty with a state government are likely to include health and education.[3]

Northern Territory

In 2018 the Northern Territory Government of Michael Gunner pledged to undertake a treaty process with Indigenous peoples of the Territory,[4] including the appointment of an Independent Treaty Commissioner to oversee negotiations.[18] In June 2018 Gunner signed the "Barunga agreement", a memorandum of understanding committing his Government to negotiate with the Territory's four Aboriginal land councils over the next three years to develop a treaty process.[19]

The process will be overseen by an independent treaty commissioner, who in the first stage will undertake consultations for one year with the Indigenous communities to gauge their interest in a treaty. In the second stage, a public discussion paper will be released, translated into major Aboriginal languages for consultation and feedback. A final report will then be tabled in the Northern Territory Legislative Assembly within 18 months of stage one's completion.[19]

On 4 March 2019, Mick Dodson was appointed Treaty Commissioner, agreed by all four NT land councils and the Minister. He is tasked with presenting a final report within 2.5 years.[20] The Treaty Commission, in a discussion paper published in July 2020, has said: "Some of our Elders are very old … the process of truth-telling must begin as soon as possible. It is urgent". Truth-telling is an essential step, and must take place before the negotiations for treaty get under way, which can take a long time. Because the NT is not a state, treaties negotiated with the NT Government could be overruled by the Federal Government, thereby limiting their effectiveness. There are also challenges in cases where traditional owners' lands extend across state borders, and where members and descendants of the Stolen Generations have not been able to find who their people are and therefore may not qualify as First Nations people. The Treaty Commissioner would be handing his report to the Chief Minister in 2022, after which negotiations would begin.[21]

Queensland

In 2019 the Queensland Government of Annastacia Palaszczuk announced its interest in pursuing a pathway to an Indigenous treaty process.[22] The Treaty Working Group and Eminent Treaty Process Panel were set up, with Jackie Huggins and Michael Lavarch co-chairing the Eminent Panel. Their Path to Treaty Report was tabled in Queensland Parliament in February 2020 after they had consulted widely, across more than 1,700 Queenslanders and 24 communities between July 2019 and early 2020,[23] and presented to Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships Jackie Trad. Huggins said that a process of truth-telling, acknowledging the history of Australia, is a "vital component to moving on".[24]

On 13 August 2020, Premier Palaszczuk announced that the Government would be supporting the recommendation to move forward on a Path to Treaty with First Nations Queenslanders. She said that the Treaty Advancement Committee would provide independent advice on the implementation of the panel’s recommendations.[25]

South Australia

In 2016 the South Australian Government of Jay Weatherill announced its intention to negotiate treaties with Indigenous groups across the state, announcing that $4.4 million was set aside over five years for the purpose,[26] to establish up to 40 treaties across the state.[20] In December 2016, talks began between the government and three Aboriginal nations: the Ngarrindjeri, Narungga and Adnyamathanha peoples. Following the July 2017 report of the South Australian Treaty Commissioner, negotiations began.[4] In February 2018, the Buthera Agreement was signed with the Narungga nation, of the Yorke Peninsula.[27]

Following the Weatherill government's defeat in the 2018 state election, incoming premier Steven Marshall paused the treaty negotiation process that had been begun by his predecessor, Jay Weatherill, stating he wanted to focus on "practical outcomes".[28][29]

Tasmania

On Australia Day in 2015, the Tasmanian Greens called for a formal treaty to be negotiated between the Tasmanian Government and the Tasmanian Aboriginal community.[30] Michael Mansell, chair of the Aboriginal Land Council of Tasmania, said in August 2019 that non-Indigenous people need not fear a treaty, as it would "simply be an expression of true democracy and self-determination". At that point, only 300 km2 (120 sq mi) of the 67,000 km2 (26,000 sq mi) of Tasmania had been returned under the Aboriginal Lands Act 1995. He said that returning a few key areas of uninhabited wilderness which was now Crown land would mean jobs for Aboriginal people.[31]

In June 2020, Mansell and Greg Brown, Tasmanian Aboriginal Corporation board member, had their first meeting with Premier Peter Gutwein, and raised the matter of a treaty.[32] Mansell had been heartened by the support shown for Aboriginal issues across Australia in the Black Lives Matter protests sparked by the death of US man George Floyd, and spoke at the Launceston rally of the need for a Treaty Commission.[33]

Victoria
See also: 2019 Victorian First Peoples' Assembly election and First Peoples' Assembly

The Victorian Government was the first at state level to pass a legal framework for Indigenous treaty negotiations, in 2018.[2][34] The Victorian Liberal Party opposed a state-based Indigenous treaty, stating that a federal treaty would be more appropriate.[34] Opposition politician Bernie Finn also stated that since Aboriginal Victorians were Victorian citizens, the state would be making an Indigenous treaty with itself, an argument rejected by the Government.[35]

On 3 July 2018, the government passed the first Australian treaty law ever, the Advancing the Treaty Process with Aboriginal Victorians Act 2018,[20] effective 1 August 2018.[36] The ultimate goal of a partnership between the Victorian Government and Aboriginal communities "is to achieve reconciliation and justice for Aboriginal communities", and the Act enshrines such a partnership in law.[1]

The 2019 Victorian First Peoples' Assembly election was held to choose the representatives for Aboriginal and Torres Strait Islander people in Victoria.[37][38][39] In July 2020, the Victorian government became the first state or territory to commit to the creation of a truth and justice commission to "formally recognise historical wrongs and ongoing injustices" against Aboriginal people.[20]

Western Australia

In 2015 the Western Australian Government of Colin Barnett signed a A$1.3 billion native title settlement with the Noongar people,[40] which was described by deputy opposition leader Roger Cook as "a classic treaty",[41][4] and Ken Wyatt called it "a treaty in the true sense".[15]

The comprehensive South West Native Title Settlement aims to resolve native title claims in exchange for statutory recognition of the Noongar people as the traditional owners of South-Western Australia.[42] As of 2020 it is the largest native title settlement in Australian history, affecting about 30,000 Noongar People and encompassing around 200,000 km2 (77,000 sq mi) in south-western Western Australia. It has been described as "Australia's first treaty".[43]

By 2018, WA had announced plans to establish an Aboriginal representative body in the state.[11]

See also

References
  1. "Advancing the Treaty Process with Aboriginal Victorians Bill 2018". Parliament of Victoria. 7 March 2018. Retrieved 21 July 2020.
  2. "Australia moves towards Aboriginal treaties". BBC News. British Broadcasting Corporation. 8 June 2018. Retrieved 14 July 2019.
  3. "What will Indigenous treaties mean?". ABC News. Australian Broadcasting Corporation. 14 December 2016. Retrieved 14 July 2019.
  4. Hobbs, Harry; Williams, George (1 March 2018). "The Noongar Settlement: Australia's First Treaty". Sydney Law Review. 40 (1). Retrieved 20 July 2020 – via Australasian Legal Information Institute (AustLII).
  5. "Order-in-Council Establishing Government 23 February 1836 (UK)". Museum of Australian Democracy. Documenting a democracy. Retrieved 16 November 2019.
  6. Draft of the Order-in-Council Establishing Government 23 February 1836 (UK), National Archives of Australia
  7. Richard Broome, pp10-14, Aboriginal Victorians: A History Since 1800, Allen & Unwin, 2005, ISBN 1-74114-569-4, ISBN 978-1-74114-569-4
  8. "Governor Bourke's Proclamation 1835 (UK)". Documenting Democracy. Museum of Australian Democracy. Retrieved 20 July 2020.
  9. "The Batman Treaty". SBS On Demand. Special Broadcasting Corporation. Retrieved 14 July 2019.
  10. "Batman's treaty". Ergo. State Library of Victoria. Retrieved 15 July 2019.
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  12. "Indigenous Australian 'hearts broken'". BBC News. 27 October 2017. Retrieved 20 July 2020.
  13. "Uluru Statement from the Heart". referendumcouncil.org.au. Referendum Council. Archived from the original on 6 March 2019. Retrieved 21 July 2018.
  14. Pearson, Luke (10 August 2017). "What is a Makarrata? It's more than a synonym for treaty". ABC News (Radio National). Australian Broadcasting Corporation. Archived from the original on 5 June 2019. Retrieved 21 July 2020.
  15. Wyatt, Ken. "National Press Club Address - 'Walking in Partnership to Effect Change'". Ministers Media Centre. Retrieved 21 July 2020.
  16. Conifer, Dan (9 July 2019). "Indigenous constitutional recognition to be put to referendum in next three years, Minister promises". ABC News. Australian Broadcasting Corporation. Retrieved 21 July 2020.
  17. Wyatt, Ken (10 July 2019). "Ken Wyatt speech: Indigenous Australians Minister's historic pledge for recognition". The Sydney Morning Herald. Retrieved 21 July 2020.
  18. Wellington, Shahni (8 June 2018). "Indigenous treaty a step closer after NT Government's historic pledge". ABC News. Australian Broadcasting Corporation. Retrieved 14 July 2019.
  19. Allam, Lorena (8 June 2018). "NT signs historic Barunga agreement to begin Indigenous treaty talks". The Guardian. Retrieved 15 July 2019.
  20. Korff, Jens (20 July 2020). "Aboriginal timeline: Treaty". Creative Spirits (in Polish). Retrieved 20 July 2020.
  21. Gooley, Cameron (15 July 2020). "NT Treaty Commission eyes 2022 submission of final report with consultations to commence". ABC News. Australian Broadcasting Corporation. Retrieved 27 August 2020.
  22. Siganto, Talissa (14 July 2019). "'Long time coming': Queensland commits to Indigenous treaty process". ABC News. Australian Broadcasting Corporation. Retrieved 14 July 2019.
  23. Smith, Douglas (10 February 2020). "QLD Government receives treaty recommendations after months of consultations". NITV. SBS. Retrieved 14 August 2020.
  24. "Truth-telling guides next steps on Queensland's historic Path to Treaty". Mirage News. 10 February 2020. Retrieved 14 August 2020.
  25. Palaszczuk, Annastacia; Crawford, Craig (13 August 2020). "Queensland Government's historic commitment to Treaty-making process". Queensland Cabinet and Ministerial Directory. Retrieved 14 August 2020. Text was copied from this source, which is available under a Attribution 4.0 International (CC BY 4.0) licence.
  26. Australian Associated Press (14 December 2016). "SA government aims to sign treaty with Indigenous Australians within 12 months". The Guardian. Retrieved 15 July 2019.
  27. "Treaty in South Australia". ANTaR. 11 September 2019. Retrieved 20 July 2020.
  28. Wahlquist, Calla (30 April 2018). "South Australia halts Indigenous treaty talks as premier says he has 'other priorities'". The Guardian. Retrieved 14 July 2019.
  29. Kurmelovs, Royce (12 December 2018). "SA's Aboriginal Affairs Action Plan slammed as 'collection of dot points'". NITV News. Special Broadcasting Service. Retrieved 15 July 2019.
  30. "Call for Tasmanian Aboriginal Treaty". Tasmanian Greens MPs. 26 January 2015. Retrieved 20 July 2020.
  31. Holmes, Adam (7 August 2019). "Tasmania treaty talks: Michael Mansell's vision for treaty, land return, GDP allocation, land access and seats in Parliament". The Canberra Times. Retrieved 20 July 2020.
  32. Maunder, Sarah (10 June 2020). "Aboriginal leaders in Tasmania broach treaty discussions with state government". NITV. Retrieved 20 July 2020.
  33. Bailey, Sue (8 June 2020). "Aboriginal leader Michael Mansell has been overwhelmed by support at Black Lives Matter rallies". The Advocate. Retrieved 20 July 2020.
  34. Afshariyan, Nkayla (7 June 2018). "Australia's first Aboriginal treaty negotiations passed in Victoria". triple j. Australian Broadcasting Corporation. Retrieved 15 July 2019.
  35. Wahlquist, Calla (21 June 2018). "Victoria passes historic law to create Indigenous treaty framework". The Guardian. Retrieved 15 July 2019.
  36. "Advancing the Treaty Process with Aboriginal Victorians Act 2018". Victorian legislation. 14 February 2020. Retrieved 21 July 2020.
  37. Rollason, Bridget (16 September 2019). "Victorian treaty negotiations move closer as voting opens for First Peoples' Assembly". ABC News. Retrieved 18 July 2020.
  38. Australian Associated Press (16 September 2019). "Voting opens for representatives to Victoria's First Peoples' Assembly". The Guardian. Retrieved 18 July 2020.
  39. "About". First Peoples' Assembly of Victoria. 24 November 2019. Retrieved 18 July 2020.
  40. Poloni, Gian De (8 June 2015). "WA Premier signs $1.3 billion Noongar native title deal". ABC News. Australian Broadcasting Corporation. Retrieved 14 July 2019.
  41. Hobbs, Harry. "Will treaties with Indigenous Australians overtake constitutional recognition?". The Conversation. Retrieved 14 July 2019.
  42. Cawthorn, Michael (22 November 2017). "Traditional Owner Corporations". PBC. Retrieved 30 July 2020.
  43. "Settlement Agreement". South West Aboriginal Land and Sea Council. Retrieved 31 July 2020.

Further reading
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