First published in The Sydney Morning Herald

THE Chief Justice of the High Court, Robert French, has dismissed the legal argument used by the former Prime Minister John Howard against the reaching of a treaty with indigenous Australia.

Justice French disagreed with the view that a treaty was impossible because Aboriginal Australia was not a sovereign nation - or as Mr Howard put it in 2000, that a nation "does not make a treaty with itself".

The Mabo decisions and the Native Title Act recognised indigenous rights without undermining Australia's sovereignty and could provide the basis for an agreement, Justice French said in a speech at the University of Melbourne Law School.

"Such an agreement could recognise and acknowledge traditional law and custom of indigenous communities across Australia, their historical relationship with their country, their prior occupancy of the continent and that there are those who have maintained and asserted their traditional rights to the present time," he said.

"This is a cultural reality which can be accepted without comprising, symbolically or otherwise, Australia's identity as a nation."

"Although Aboriginal notions of sovereignty would belong in a different "universe of discourse", he said, "it would be sovereignty under traditional law and custom".

Experts said the statement was a significant step in a debate that continues.

The director of the Treaty Project at the Gilbert + Tobin Centre of Public Law at University of NSW, Sean Brennan, said Justice French was "a black-letter lawyer of the highest standing and in effect he is repudiating the scare tactics frequently used to shut down constructive debate about a treaty or agreement".

The director of the Indigenous Law Centre at the University of NSW, Megan Davis, said Aboriginal people would be relieved that an agreement could yet come out of the "massive disappointment" of native title laws.

Australia has so far resisted an agreement with its indigenous people, unlike nations such as New Zealand and Canada.

It is Labor Party policy to pursue a treaty, but the Rudd Government says it is a lower priority than reaching its targets for improving Aboriginal life expectancy, child mortality and employment.