- Background Discussion Paper
- What is a Treaty?
In recent times a
call has come from many prominent Indigenous people in Australia
for a treaty between the Australian Government and the Indigenous
peoples of this land. For example, NAIDOC Week this year had its
theme as: Treaty Now: Let's Get it Right. This is a very
complex issue and it is important that as many people as possible
have a good understanding of what is being discussed. In this
context, this paper explores some of the key dimensions of what
is meant by 'a treaty'.
Having an understanding
of the word, treaty, itself, can be a beginning. The word
can be used as a term to cover all kinds of documents that are
agreed upon between parties and which cover a wide range of issues.
Treaties of one kind or another influence many of life's experiences
- for example, workplace relations, marriage, government policies
like mutual obligation. These all involve some participation in
agreements that require certain undertakings and agreed behaviour.
Treaties require both parties to accept the terms and conditions
of an agreement.
In today's world at
an international level when governments are dealing with one another,
treaties are agreements which establish ground rules through which
sovereign nations relate to each other. Quite often, an outsider
will be invited to try to broker a treaty so that all parties
receive a fair hearing and to ensure that the agreement reflects
the demands of all who are involved. The various Middle East accords
are a good contemporary example.
What then of the present
discussion regarding the call by Indigenous peoples for a treaty
The story of Australia's
colonization is the place to begin. By 1788, Great Britain had
a history as a colonizing nation. British records show that they
were in the habit of forming treaties with other nations from
a very early period. In 1217, Henry III entered a treaty with
the Dauphin of France. Later, when the
British and other
European countries entered the so-called 'New World', treaties
and agreements with indigenous people ensued. However, Australia
was the exception. It was the only country colonized by the British
in which there was no attempt to form some type of treaty with
the Indigenous peoples. The British dealt quite differently with
the Indigenous peoples of the present United States, Canada and
New Zealand. A brief look at their colonizing stories will demonstrate
the differences and give some insights into why the Indigenous
peoples of Australia are now seeking serious discussion regarding
an offical treaty.
States of America
In North America from
the time of first settlement, in the years 1533-1789, that is,
prior to Independence, the administrators of British colonies
treated the Native Americans or Indian nations as sovereign entities.
That is, as peoples having their own systems of laws, traditions
and understandings about land tenure. These treaties were relationships
between sovereign nations. These were based on the recognition
that Native American tribal groups had the equivalent status to
that of the colonisers. The British Imperial Government instructed
colonial administrators that land could only be acquired by purchase
from the Native Americans/Indians. This policy was formalized,
and applied uniformly to all the North American colonies in the
Royal Proclamation of 1763. After Independence, from 1789
to 1871, the United States Government assumed the role of the
British and Spanish governments and continued the earlier British
policy entering into treaties. However, in 1871, treaty making
with the Indian tribes was discontinued as it was seen as an impediment
to the assimilation of Native Americans into white society.
rather than treaties were to be used for negotiations. Today,
negotiated settlements are used to deal with disputes between
Native American peoples and the United States Government.
Prior to Confederation
in Canada, almost forties treaties, mostly peace treaties, were
negotiated between First Nations and the British Crown. However,
Native peoples in Canada were not considered as sovereign powers
as they were in the United States. Canadian treaties tended to
follow a pattern of surrender of lands in return for particular
rights, for example continued hunting and fishing rights or supplies
of monetary payments.
the Canadian Federal Government still maintained the treaty making
process, although the process changed. These later treaties, called
numbered treaties, because that is how they were named, contain
the same core provisions: in exchange for surrendering all their
rights and title to their lands, the Native peoples were to receive
monetary annuities in perpetuity and reserves.
These later treaties
are not treaties created in accordance with international law.
They do not create new rights, but recognize pre-existing rights.
Treaties in Canada do not have primacy over federal law. However,
they are supreme in relation to Provincial law. The treaty making
process continues in Canada up till the present time.
The Treaty of Waitangi,
signed in 1840, is recognised as the founding document of New
Zealand/Aotearoa. The treaty established the right of the Crown
to govern in NZ/Aotearoa and it established the terms of a peaceful
settlement. In exchange Maori rights to their lands and resources
were affirmed and Maori were granted the rights and privileges
of British citizenship. When NZ/Aotearoa became constitutionally
independent from Britain, the Treaty obligations of the British
Crown were transferred to the Crown in NZ/Aotearoa.
The Treaty of
Waitangi must be seen in the context of events that preceded
it. One of the major events was the signing of the Declaration
of Independence in 1835. This was arranged by the British Resident,
the King's representative in NZ/Aotearoa. It was an attempt to
bring about a Maori Government. There was great concern among
the Maori and the missionaries about the lawlessness of the white
(Pakeha) whalers and traders. It was hoped that the signing of
the Declaration would lead to establishing a body to prepare legislation
for the administration of a new nation. Members of the Maori society
had been abroad and they had learned about setting up legislative
procedures required for the governing of a nation. At this time,
Britain was reluctant to intervene in the affairs of NZ/Aotearoa.
However, when fighting among Maori tribes began there was an appeal
by the whalers and traders for Britain to take some control. This
had the support of the missionaries. There were also rumors that
the French were about to undertake large interests in NZ/Aotearoa.
The Maori, if they were to be colonised by anybody, wanted it
to be by the British. Eventually, Britain conceded and the signing
of the Treaty of Waitangi was the result. The treaty was
written in Maori and in English. However, there were some nuances
in the Maori language that were lost when translated into English.
This was not appreciated until some time later. So although, it
looks as if the treaty was a wonderful way of respecting the Maori
nations, it has had some serious misgivings over time, in terms
of true recognition of Maori sovereignty.
However, it is obvious
that the colonisation of NZ/Aotearoa was a very different process
from the colonization of Australia. For one thing there was a
long history of representatives of the British Crown dealing with
Maori chiefs. Therefore, there was an understanding by the British
that the Maori did have a system of Government whereas this was
not evident to those who took possession of Australia.
No treaties or agreements
were formally entered into and enacted with the Indigenous peoples
of Australia despite the instruction issued to James Cook to "Take
possession of the continent with the consent of the natives".
This instruction was
ignored as Cook took possession of all that he saw in the name
of His Majesty, George III. The British became owners of land
where no inhabitants were held to have rights, acting on the principle
of terra nullius, an empty, uninhabited country. There
was little acknowledgment of the possibility that Indigenous sovereignty,
land tenure systems or systems of law and governance might survive
colonisation. There was no recognition that any such systems existed.
Part of the problem was that there had been no formal meeting
with any Indigenous "chiefs". It is interesting to note
that the Indigenous peoples of Australia had a non-hierarchical
system of social organisation. There are no "chiefs"
who govern territories. Rather, the social organisation Indigenous
culture is one that acts from a communal/clan stance rather than
a strictly hierarchical one. The colonisers would not have seen
this as representing an organized society and this could possibly
have had some influence on the lack of recognition of sovereignty
in this new British colony.
Whatever, there was
a complete denial of the sovereignty of Indigenous peoples in
this country. Only with the Mabo High Court decision of 1992 did
the legal system in Australia take the first step in redressing
Historical Perspective - a Treaty for Australia
While there has been
no formal treaty in Australia between the British Crown and Indigenous
peoples, some attempts made in some places:
- in the early days
of settlement in Tasmania; and
- two treaties were
negotiated on the sites of Melbourne and Geelong in Victoria.
However, these were
not significant enough to make a wider impression and to lead
to a recognition of Indigenous sovereignty across the whole country.
The most significant
negotiations between Indigenous peoples and the Australian Government
have occurred in the Northern Territory and these have been in
- in 1963 in protest
at bauxite mining at Gove, the Yolngu clan leaders prepared
a petition on bark paintings. It was the first traditional document
recognized by the then Commonwealth Government. The petition
proclaimed Yolngu law, depicting traditional relations to land
and was presented in English and Gumatj the language of the
people. It was printed on bark. Although unsuccessful, the petition
has significance in that it recognized that there was such a
thing as Yolngu law. This petition remains displayed in Parliament
- in 1972 the Larrakia
people whose territory covered the area on which Darwin is situated,
sent a petition to the Prime Minister, Mr McMahon, requesting
that a treaty process be established. In this process, all the
clan/language groups in the area were to be interviewed and
all had to agree to the deeds of the treaty. The Prime Minister
eventually replied that it was not appropriate to negotiate
with British subjects as though they were foreign powers. The
reason that treaties had never been negotiated was partly that
of the difficulty of identifying the people and groups with
whom negotiations could be conducted.
- in April 1979
there was a call by the National Aboriginal Conference (NAC)
for the Federal Government to negotiate a 'treaty of commitment'
between representatives of Aboriginal Australians and the Commonwealth.
The Conference began speaking of a makarrata, a term
taken from a north-eastern Arnhem Land language, where it means
the end of a conflict and the resumption of normal relations
between communities. The Federal Government was prepared
to discuss the concept of an agreement, but ruled out a treaty
because of its connotations of separate nations within Australia.
There may also have been concern that a treaty implied massive
Around this time,
the work of publicising and promoting the concept of a treaty
was taken on by the Aboriginal Treaty Committee, a non-Aboriginal
organisation of prominent citizens including Dr H C Coombs and
the poet Judith Wright. This committee was convinced that without
a treaty or similar instrument, Acts of Parliament would be too
subject to the winds of political change. It proposed that the
treaty, covenant or convention include provisions relating to:
- the protection
of Aboriginal identity, languages, law and culture;
- the recognition
and restoration of rights to land;
- the conditions
governing mining and exploitation of other natural resources
on Aboriginal land;
- compensation to
Aboriginal Australians for the loss of and damage to traditional
lands and to their traditional way of life;
- the right of Aboriginal
Australians to control their own affairs and to establish their
own associations for this purpose.
The Aboriginal Treaty
Committee succeeded in having the treaty question referred to
the Senate Standing Committee on Constitutional and Legal Affairs
and the Senate Committee Report was published in 1983. The Senate
Committee advised that its preferred method of legal implementation
of a compact between the Aboriginal population and the
Commonwealth would be a referendum to amend the Constitution.
The Senate Committee Report did not immediately lead to any new
treaty initiatives and the Aboriginal Treaty Committee, finding
a lack of political will to implement a treaty, ceased its activities
in February 1984.
1993 Aboriginal leaders
presented the Prime Minister with a Peace Plan in response to
the High Court's Mabo decision. The plan called on the government
to negotiate "constitutional acknowledgment of Aboriginal
and Torres Strait Islander rights".
In 1994 the Federal
Labor Government asked the Council for Aboriginal Reconciliation
whether there should be a place in the reconciliation process
for a formal document or documents of reconciliation. Both the
Council and ATSIC advocated a formal document of reconciliation,
with ATSIC calling for a treaty which "must forge the ground
rules for relationships between indigenous and non-indigenous
Australians based on justice and equity and the proper recognition
of indigenous rights".
Elected in 1996, the
Howard government rejected the possibility of a treaty with indigenous
Australians and instead coined the phrase "practical reconciliation"
to describe its policy focus.
After the success
of the Reconciliation Walks at the time of Corroboree 2000
and the following months, the call for a treaty has once more
been heard from Aboriginal leaders. In January 2001, ATSIC commissioner
Steve Gordon, stated that a move towards a treaty was essential
in guaranteeing equality for the Indigenous people of Australia.
He stated that the failure of all governments to enter into a
treaty has led to a history of dispersal, removal and dispossession
of Aboriginal and Torres Strait Islanders.
Issues on the Agenda
It has been
stated by a number of people, including the Prime Minister, John
Howard, that a treaty would cause division in the country because
it would set up a separate nation for the Indigenous people. The
Prime Minister and the Liberal Party have said that they believe
that practical reconciliation is more important, that is the provision
of health, housing, education. Access to these are certainly important
for Indigenous peoples. However, access to these are rights of
all Australian citizens. The treaty process is saying that there
are distinct rights that the Indigenous peoples have, because
they are the first peoples of this land with which they have a
spiritual relationship and their own systems of law and their
own languages. A treaty is a way of recognizing their unique place
in this country and sovereignty.
In the Barton
Lecture, Diversity and Unity in Modern Australia, broadcast
on Sunday 18 February 2001, John Hirst, Reader in History at La
Trobe University in Melbourne, identified the difficulties he
sees with treaties. He believes that the setting up of ATSIC recognises
the special position that Indigenous peoples hold in the country.
He questions with whom the treaty would be made because there
is not one traditional group of Indigenous people, but many clans/language
groups. He considers that Mabo and the agreements over Native
Title that have followed are, in fact, treaties that recognise
traditional rights to land. However, there are many who see that
the Wik amendments to Mabo take away the basic right of recognition
of first ownership of the land. Mabo was indeed a landmark, but
it was about Native Title to land. Advocates of a treaty are seeking
a recognition of indigenous spirituality, and of systems of laws,
and not just original ownership of land.
Geoff Clarke has nominated the theme for NAIDOC Week this year
as TREATY - let's get it right. ATSIC is convinced that
this year, the Centenary of Federation, is the right time to formally
start this debate regarding a treaty. He believe that an overwhelming
majority of Australians want black and white Australians to walk
together and to be proud of the fact that Australia has one of
the most flourishing and vibrant Indigenous cultures in the world.
ATSIC would be a key player in the development of a treaty.
there are some within the Indigenous community who have misgivings
about this approach to a treaty. They see ATSIC as a Government
controlled organisation and fear that this may indicate that someone
is telling them that they must have a treaty. This leads to a
fear that a treaty may be developed by a small group and not the
whole population of Indigenous peoples. Such an unequal way of
establishing a treaty is unacceptable to some. If there is to
be a treaty, it is preferred that it be worked out according to
the Indigenous people and on their terms.
In a paper
presented to the regional gathering in preparation for the World
Conference Against Racism to be held in South Africa in September,
Mary Graham from FAIRA Aboriginal Corporation in Brisbane, suggested
that there be an accord rather than a treaty . This accord is
to be based on a negotiating process called the Oslo Accord established
by a Norwegian sociologist to broker a peace accord between Israel
and Palestine. Mary is advocating that a process such as this
be involved to arrive at an accord between the Indigenous peoples
and the Australian Government. In such a process, the Indigenous
peoples would be recognized as having sovereignty. Thus, they
would be accorded equal status as the Australian Government who
would be the other member of the negotiating process. An accord
gives priority to the Indigenous peoples as having much to offer
to the process. Essentially, an accord process is about establishing
peace . The proponents of this approach believe that there is,
at present, no real peace between the Indigenous cultures of this
country and those who live according to a Western style of culture.
For an accord to become a reality, there would need to be an independent
broker to bring it about. The broker could be a country within
the region., or it could be one person or it could be a specialist
group with expertise in the area of negotiation. Mary Graham says
that: "the Accord process entered into contains a very broad agenda.
That is, instead of Indigenous people engaging in a fractured
system of consulting and negotiation an alarming array of issues
with a confusing array of outcomes, a clear integrated assessment
of the situation and status of Indigenous people can be achieved."
a Treaty Would Achieve
Whether it be through
a process of consultation with Indigenous and non-Indigenous groups
within Australia or whether it be through a peace accord process,
it is important for the discussion on the treaty to go ahead in
this year of the Centenary of Federation. One hundred years ago,
there was no recognition of the special place that Indigenous
peoples have in this nation.
So, what will such
a treaty achieve?
- A treaty will
not lead to a separate nation;
- A treaty will
acknowledge the truth of Australia's history;
- A treaty will
enshrine the rights of Australia's Indigenous peoples within
the limits of the Australian nation;
- A treaty will
enshrine the rights of Indigenous people to their culture, land,
spirituality, languages and the rights to raise their own children.
It has been claimed
that the lack of a treaty has kept the Indigenous people of Australia
as second class citizens, denied their own spirituality and culture.
However, it is recognized that achieving a treaty will not come
easily. It must only come after long and well organized negotiations
with the Indigenous peoples themselves. At the launch of the ATSIC
Treaty documents in Melbourne in May 2001, Geoff Clarke said "we
need to continue talking amongst ourselves about a treaty. We
need to decide is this the right way for us to go forward. What
kind of treaty model should be adopted? What would we like to
see included in the treaty ? What should a treaty mean for sovereignty
Unless these questions
are answered correctly by Indigenous people themselves, a treaty
may do nothing that it sets out to achieve. In the end, it must
be a formal and binding recognition of the sovereignty of the
Indigenous peoples over this land and the rights they hold as
the first peoples of this land.
ATSIC Speech - Treaty Document Launch, 8 May 2001
Speech at the Sardinian Club National Conference, 10 March 2001
Diversity and Unity in Modern Australia. The Barton Lectures
(Part 2), 18 February 2001
Application of the Oslo Model for Relations Between States
and Indigenous Peoples. Land Rights, March 2001
Treaty Between Our Nations? Indigenous Studies, University
- Where To From Here? The Case for a Treaty in Polliewatch
No. 42, July 2000
The Treaty of Waitangi. Allen and Unwin.
Claims to the Waitangi Tribunal. Waitangi Tribunal Division,
Department of Justice, NZ
Action Office - CLRIQ