Canada’s British Columbia Treaty Process (BCTP), which commenced in 1993, is often cited as a starting point for local treaties by Australian treaty negotiators.
Treaties negotiated through the BCTP are tripartite agreements between the governments of Canada, British Columbia and a First Nation, with a central goal of reconciliation.
A First Nation implementing a modern treaty will be self-governing and will have a constitution and law-making authority over treaty land and provisions of public services. Self-government provisions may include education, language, culture, police services, healthcare, social services, housing, property rights, child welfare and other provisions agreed to by the three parties.
In 2016, the Socio-economic Benefits of Modern Treaties in BC report by consulting firm Deloitte found a significant net economic benefit to First Nations, British Columbia and Canada resulting from the settlement of treaties with First Nations. The net present value of settling 30 treaties over a 15-year time frame is C$1.75b.
For Marcus Stewart, co-chair of the First Peoples’ Assembly of Victoria, a treaty with Australia’s First Nations peoples presents a once-in-a-lifetime opportunity. “It’s probably the best opportunity for reconciliation I’ve seen in my lifetime to actually create equality for First Nations people in this country. For us to walk shoulder to shoulder and stand together with our fellow Australians.”
Steve Rossingh GAICD, director of the Northern Territory Treaty Commission, says it’s about driving change and closing the gaps. “What’s happened over the past couple of hundred years is not working. Where Indigenous peoples have true self- management or self-determination and decision- making capacity about the things that affect them in their daily lives, when we’re making our own decisions, we make much better decisions and better outcomes accrue.”
Author and historian Dr Jackie Huggins AM FAHA says it’s about sovereignty. “It’s a long-overdue document, which is very important to nation building and the history and relationship between Aboriginal and Torres Strait Islander peoples and the wider community, because the treaty is a negotiated agreement between two or more parties.”
States lead the process
Federal Minister for Indigenous Australians Ken Wyatt AM says it is important for states and territories to lead on Treaty in their jurisdiction to address the circumstances of local communities, their histories and experiences.
“Typically, Treaty goes to land matters, the responsibility of which sits with states. Aboriginal and Torres Strait Islander people have had varied interactions with local authorities since colonisation, and these are best addressed by the jurisdictional governments,” says Wyatt, noting the ACT, Northern Territory, Queensland, Tasmania and Victoria have initiated Treaty processes at the jurisdictional level. “The terms of any treaty agreed to by a jurisdiction must be consistent with Commonwealth legislation, however the responsibility for negotiating and progressing those agreements lies with jurisdictions,” he says.
Minister Wyatt has previously singled out the WA Noongar Land Agreement as a “treaty in a true sense”. He says the agreement is significant as a framework for rights, obligations and opportunities relating to Noongar land, resources, governance, finance and cultural heritage. “The agreement acknowledges historical dispossession, and in exchange the WA government has agreed to the establishment and financing of Noongar governance institutions,” he says, noting the creation of six Noongar Regional Corporations and one Central Services Corporation, which will receive $10m in funding support annually for 12 years.
“The Central Services Corporation will be responsible for assisting and providing services to the regional corporation,” says Wyatt. “As a centralised administrative body, it will act to maintain, protect and promote the culture, customs, traditions and language of the Noongar people.”
While it’s early days, the treaty-making in Victoria, Queensland and the Northern Territory mostly share several common themes, including self- determination, elected representatives, local treaty- making and capacity building for future generations to continue with the treaty process.
“Any governance that is Aboriginal community- controlled and led and serviced and resourced properly is good governance, because it comes from the heart of and the soul of the people who you are intended to deliver services to and assist in their own social justice causes,” says Huggins.
If the treaty is the “what”, then truth-telling will be the “why”, says Stewart. “We’ll be able to hear the stories of our people that have long been passed down through generations to us as traditional owners — and as Victorians — that form part of who we are and that we carry with us. We have an opportunity to share those stories, to speak our truth to our fellow Victorians, and for them to hear us, to listen to us, to roll up their sleeves and start chipping away at the solutions together,” he says.
Rossingh sees truth-telling as part of the healing for the intergenerational trauma suffered by First Nations Australians because of the brutal past. “It’s not something that should be taken lightly. Acknowledgement by the broader public of those truths and what stems from them is a big part of the healing process.”
He adds there will need to be a mechanism to ensure the government fulfils its obligations under treaties, not just by the letter of the agreement, but also by the spirit of the agreement. On the other side of the treaty would be the First Nation government, responsible for delivering its own obligations. In the middle would be a dispute resolution agency to which either party could bring its grievances.
Rossingh believes the wider non-First Nations Australia, which isn’t involved in the treaty process, shouldn’t be threatened by the process. “We can’t see any non-First Nations territory being worse off after treaties are negotiated. A stronger, healthier, First Nations Northern Territory, which participates more in the economy and is socially and culturally stronger, will mean a much stronger NT generally.”
Any treaty between the NT government and First Nations people will be more about governance than land ownership, because about half of the NT landmass has already been handed back to traditional owners and a large amount of other land is held in Aboriginal interest through native title.
“It’s a stronger governance structure around that ownership, a more empowered First Nation,” says Rossingh. “When you couple that with some financial injection in terms of compensation payments or specific economic development component to the settlement, it provides a much better opportunity than we’ve got at the moment.”
The NT Treaty Commission is consulting with First Nations about what should be contained in the treaty following the release of a discussion paper last year. Rossingh expects there to be multiple treaties, between the NT government and individual First Nations groups. Individual treaties would be overridden by a legislated Territory-wide framework, which would set ground rules, establish the mechanisms and deal with budgetary matters.
“Each treaty would be specific to a particular land-owning group, a First Nation group, and then what’s contained in that treaty. What we’re saying is that the limits of that are the limits of your imagination. It’s the priorities, the important things that each First Nation wants to negotiate,” he says.
Rossingh believes that self-governance is at the centre of the treaty process. The NT faces a unique risk in its treaty-making process because Section 122 of the Constitution of Australia gives the federal government complete legislative control over the territories. The NT Treaty Commission wants federal support, ideally in the form of a “federal treaty” that supports the state and territory treaties.
Rossingh is optimistic, even though he expects a long game — another two or three years before structures are set up to allowing treaty negotiation to start, followed by 15–25 years of negotiation.
The First Peoples’ Assembly of Victoria was established in 2019 following consultation with the Aboriginal population. The government is bound by law to work with it to advance the treaty process.
The assembly is driving treaty-making in Victoria and Stewart says the organisation has settled on an interim disputes resolution process to underpin its procedural rights. It is now in the midst of designing the treaty negotiation process and a more permanent dispute resolution body.
Stewart expects that, as with other treaties, the right to self-determination and self-government will be at its core, but there are big questions yet to be answered. “We’re asking our community to dare to dream about what life looks like with a treaty in place,” he says.
Stewart says a state-wide treaty could change some of the systems and structures which result in inequality, such as the health system or the child protection system.
For instance, non-First Nations Victorians go to the hospital for medical attention. However, for the older First Nations population, it’s not so simple. Hospitals were a place where children were (and can still be) removed from their parents and therefore not seen as “safe”. This is an example of what should emerge in the truth-telling process.
“We know that we represent and are entrusted to lead the Aboriginal community on the journey towards treaties and that’s what our elected mandate is. So we’ve got a lot of things we need to unpack and look at from a state-wide point of view,” says Stewart.
He hopes that settlement on a treaty negotiation framework will see traditional owner treaties negotiated within the next couple of years.
“We’ve got an ambitious timeline,” he says. “But we’ve also got an enormous appetite to deliver on behalf of our community and they’ve got an enormous appetite for us to deliver on their behalf.”
“We’re asking our community to dare to dream about what life looks like with a treaty in place.” Marcus Stewart, First Peoples Assembly of Victoria
Treaty negotiators in Queensland are taking a different approach. Firstly, they held consultations with both First Nations and non-First Nations populations. “It is not an Aboriginal and Torres Strait Islander issue as such. We have to all be in this to create the reconciliation process,” says Huggins.
Also, where other states elected an assembly, the Queensland Treaty Advancement Committee is an appointed body developing the recommendations of an Eminent Panel and Treaty Working Group.
The committee’s aim is to establish a “Treaty Institute” which, while not negotiating the treaties, will establish the treaty-making framework and the process of truth-telling and healing.
The institute is also about capacity building, in particular attracting young people who will be able to pick up the decades-long treaty-making process when the current elders are gone.
“We’re taking our time,” says Huggins. “We’re in for the long haul and need to get the proper structures in first and lay the ground so we can work with the communities and traditional owners... in terms of being able to process the treaties.”
In Everything You Need to Know About the Uluru Statement from the Heart, constitutional law experts Professors Megan Davis and George Williams AO review how a treaty was considered as part of the Uluru Statement’s consultations. The following is an extract.
Through negotiated settlement, First Nations can build their cultural strength, reclaim control and make practical changes over the things that matter in their daily life. By making agreements at the highest level, the negotiation process with the Australian government allows First Nations to express our sovereignty — the sovereignty that we know comes from The Law.
It was recognised at the Regional Dialogues that for a treaty process to occur, the community needs considerably more resources to engage with the state, as well as a lengthy period for planning.
A number of dialogues referred to the Waitangi Tribunal in New Zealand as an example of how an institutional body could assist communities in preparing to negotiate agreements.
Many dialogues expressed hurt at the native title process and how it has torn communities apart and inflamed intra- cultural disputes and tensions. For this reason, many dialogues said that there needed to be a treaty “with ourselves” or among each other in order to learn how to work together again.
It is important to note that not all dialogues ranked Treaty highly. In the Broome dialogue, for example, many people expressed fatigue with agreement- making because so much of this was conducted once strong native title claims had been successful and recognised. The importance of the dialogues process is that it elicited a complex and nuanced picture of communities across Australia.