Treaty

Australia is the only Commonwealth country colonised without a treaty with, or the consent of, its Indigenous peoples. In 1770 Captain Cook failed to follow instructions to negotiate a treaty if he encountered Indigenous people.

Since then, the basic terms of peaceful coexistence between the First Peoples and those who came later have never been negotiated in Australia. This makes us the only Commonwealth nation not to have a treaty with our First Peoples.

What is the situation in other Commonwealth countries?

By contrast, New Zealand has the Te Tiriti o Waitangi Treaty of Waitangi, an agreement signed in 1840 between the British Crown and more than 500 Maori chiefs. Canada has a number of treaties, and continues to make agreements to the present day.

What does the word ‘treaty’ mean?

Although the word ‘treaty’ is commonly used to describe an agreement between sovereign nation states, it is also used to refer to domestic agreements between national governments and Indigenous peoples.

These agreements are usually political and have a binding legal effect. Such an agreement can have a variety of names – treaty, a compact, a “Makarrata” or a document of reconciliation. The name given to the agreement is itself something that the parties can negotiate. What is important is the content of the agreement and the quality of the relationship it helps to establish.

Reconciliation and ‘treaty’

The call for a treaty with Australia’s Aboriginal and Torres Strait Islander peoples is not new, but has taken on a new dimension since reconciliation became a key theme in Indigenous affairs.

In its final report (2000), the Council for Aboriginal Reconciliation (CAR) recommended the establishment of an agreement or treaty process to negotiate the unfinished business of reconciliation between the Australian nation and its Aboriginal and Torres Strait Islander peoples.

Image: Modernmurri Images

It envisaged that this process would acknowledge the following realities:

Because Aboriginal and Torres Strait Islander peoples were the prior owners and occupiers of this land, they hold rights that are inherent rights, specific to them and held by no others in Australia.
The British took control of the Australian continent in 1788 without treaty or consent - in marked contrast to British colonisation of other countries.
This disregard of Indigenous peoples continued at the time of Federation (1901) - the only mention of Aboriginal and Torres Strait Islander peoples in the Constitution was to exclude them from the population count.

Closing the Gap and treaty.

Efforts to address racial and socio-economic inequality between Indigenous and non-Indigenous people requires a mix of short-term interventions and longer term, structural agreements.

A treaty between Australian governments and Aboriginal and Torres Strait Islander peoples is essential to long-term structural change.

Photo: Oxfam

ANTaR believes that to achieve a just and lasting agreement between the Federal Government and Aboriginal and Torres Strait Islander peoples we need a long-term process that extends beyond any one political cycle. This process could well include agreements at state and local levels.

Overseas experience

There are sound practical reasons why we should consider the idea of treaty making in Australia. Overseas experience has demonstrated the following:

Putting political and constitutional relationships on a more equal footing can have tangible benefits in terms of economic and social development.
Bringing people into a system from which they have been excluded helps remove one of the recognised underlying causes of disadvantage.
The cost of dysfunction to tax-payers and society begins to reduce when communities are empowered by treaty instead of being dependent on and managed by government and other agencies.
The return of jurisdiction and decision-making power to Aboriginal and Torres Strait Islander peoples is generally followed by an upturn in economic productivity and community income.
A treaty offers all in society the hope and vision of negotiated co-existence and peaceful resolution of conflict.

Though ANTaR recognises that a treaty is not a panacea, it does offer Australia a foundational document for a renewed society, which can speak to our past, present and future.

The basic purpose of a treaty within Australia is to establish an enduring foundation for a future relationship between Australia and its Aboriginal and Torres Strait Islander peoples.

Recent key reports

Briefing Paper: THE RIGHT TO DECIDE: The Importance of respecting Free, Prior and Informed Consent. (PDF file) Produced by Amazon Watch. February 2011.
Report: A Treaty Between Indigenous and Non-Indigenous Australians
A set of four project issue papers: A Treaty Between Indigenous and Non-Indigenous Australians by Gilbert + Tobin, 2002-2005.
ANTaR Fact Sheet: Treaty

All things considered — a range of opinions

To give you a complete picture about treaty and constitutional change, here's a range of perspectives. The views expressed here are not necessarily those of ANTaR, but we think they should be considered and thoughtfully debated.

More Australians want referendum on recognising Aborigines in the Constitution than one on becoming a republic - Courier Mail, 4 October 2010
Breaking the Great Australian Silence - John Pilger human rights award speech, 5 November 2009
A treaty now will go a long way to a more equal Australia - Paul Briggs, The Age, 4 May 2009
Racist premise of our constitution remains - George Williams, The Sydney Morning Herald, 7 April 2009
Chief Justice backs Aboriginal Treaty - The Sydney Morning Herald, 28 March 2009
Patrick Dodson's Nulungu Lecture - 21 August 2008
Place for Aborigines in the constitution - Sydney Morning Herald, 24 July 2008
Serious business - Galarrwuy Yunupingu, 27 October 2007
Many paths to reconciliation - The Australian, 13 October 2007
Rush will doom preamble, say experts - Sydney Morning Herald, 13 October 2007
The first step on a long walk to unity - Patrick Dodson, 13 October 2007
Reconciliation talk now needs the walk - Gary Highland, 12 October 2007
Constitutional recognition of Indigenous rights long overdue - ANTaR media release, 11 October 2007
The right time - Prime Minister John Howard, 11 October 2007
A reminder of a people left behind - Muriel Bamblett, 22 May 2007
After four decades, Aborigines still struggle to be heard - Wesley Aird, 22 May 2007
No change without strong legal measures - Larissa Behrendt, 19 May 2007

For information and expert advice about human rights in Australia, visit the Indigenous Human Rights in Australia website

Call for a Treaty between Indigenous people and all Australians

Donna Odegaard (not verified) —

The legacy of British invasion and dispossession legitimised the denial of Aboriginal sovereignty and Aboriginal rights to treaty negotiations over their property and lives resulting in catastrophic Indigenous disadvantage. The shocking facts of Indigenous disadvantage were made public through the NT Emergency Response - the Intervention, inflicting further humiliation and suffering upon Indigenous and non-Indigenous Australians that time will hopefully erase through the collective efforts of all Australians and resources of the Australian Government. It is hoped that non-Indigenous Australians who realise the extent of Indigenous disadvantage will back our calls for a treaty to right past wrongs and change the Australian Constitution through a referendum of support to negotiate a renewed relationship commencing with mutual respect, cooperation, co-existence and responsibility. As an advocate for a treaty I firmly believe that a treaty is a legalistic issue that is possible to achieve. We have proved our sovereignty exists through our admission and decades of land rights and native title claims proving our pre-existence, connection to land and cultural identity, however, the courts have remained silent on this fact for fear of upsetting the bucket of law built on the denial of fundamental rights of Australia's first peoples. The greatest fears are firstly admitting there is a legal 'relationship' and secondly, resistance to 'characterise' the relationship. The relationship between Indigenous peoples and the State has historically remained ambiguous to enable the prevailing authority to execute laws and policies controlling Indigenous Australians. However, the juridicial denial of Aboriginal rights has not dampened the spirit of Indigenous Australians and we maintain our cultural fortitude and sovereignty despite the burdon of dispossession. The challenge for non-Indigenous Australia is to take the time to understand our cultural heritages, the issues, get involved and join Indigenous Australia to support Constitutional change for a treaty so we are able to direct the path for future in respect of the past and present for all Indigenous and non-Indigenous Australians. A treaty should be a joint starting point for a renewed relationship between Indigenous peoples and non-Indigenous Australians. To do a treaty justice we to begin now with patience and care to construct a treaty in the spirit of our ancestors who fought and struggled against the worst injustices and violence inflicted upon our people. Much of the treaty debate has been written, reported, researched and analysed. My interest in a treaty stems from being Larrakia and respect for our forefathers who called for a treaty in the hope of telling the people of Australia, the Australian government and the world to act on the plight of Indigenous dispossession, sufferings, poverty, and also, inform of the existence of vibrant and diverse Aboriginal cultures, laws, customs and traditions . I pay respect to our forefathers who crafted the 1963 Yirrikala Bark Petition, the 1970s Larrakia treaty petitions, the 1988 Barunga Statement and more recently, on 23 July 2008 the Yirrikala Bark Petition was handed to Prime Minister Rudd by clan leaders including Mr Galarwuy Yunupingu. Slowly walking towards the Prime Minister, one of the clan leaders announced 'It simply symbolises the little ones, this is not for us. This is the beginning to the future of these little ones'. Donna Odegaard 18 May 2009 MA (Phil/Law), University of Newcastle NSW Title: 'Law and Aboriginal land Claims in Australia: Justice in Black and White' PhD submitted 2008, University of Newcastle NSW Title: 'The Larrakia Treaty Petitions: Australia's legal response to Aboriginal demands for a treaty'