Explainer: What is a treaty?

22 Jun 2016 - 4:10 PM  UPDATED 6 Feb 2017 - 4:25 PM

Increased discussion of a treaty between the Australian Government and Indigenous Australians has once again pushed the issue into the national spotlight. 

NITV takes a look at what a treaty is, what it might look like and the current conversation on Indigenous treaties on a state, national and international level.


 

The above painting by John Wesley Burtt records a treaty that was given to Wurundjeri Elders by farmer John Batman at the Port Philip settlement in Victoria and was later ruled invalid.

What is a treaty?
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A treaty is a binding agreement between two or more states or sovereign powers. It is usually reached after a period of negotiation. 

While the word treaty usually brings to mind treaties under International Law such as the International Covenant for Civil and Political Rights, many European countries signed treaties with the Indigenous peoples of the lands they colonised.

Treaties contain articles which outline the points of agreement between the parties. A treaty is similar to a contract in that the parties to a treaty usually agree to take on certain responsibilities and duties which are legally binding. 

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Waitangi Day commemorates the signing of the Treaty of Waitangi, New Zealand's founding document in 1840.

What do other countries have?
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New Zealand

New Zealand has one national treaty, the Treaty of Waitangi, which was first signed by Maori chiefs and British representatives on the 6th of February 1840. While the Treaty was originally signed at Waitangi on the North Island, copies of the Treaty were widely circulated and many chiefs from across New Zealand signed the copies. This event is commemorated by New Zealand’s national day, Waitangi Day.

However, concerns have been raised over the exact wording of the Treaty as the English and Maori versions differ. There is also debate as to whether or not the Treaty allowed Britain to gain sovereignty over New Zealand.

We are still the only Commonwealth country not to have signed a treaty with Indigenous people. – Stan Grant

Canada

The Canadian Government, on behalf of the Crown, signed nearly 100 treaties with the First Nations peoples of Canada from 1701 onwards. These include the 11 Numbered Treaties signed with various groups of Aboriginal people as the British expanded into the central and northern regions of the country.

These agreements are upheld by the Government of Canada and given protection under the 1982 Constitution Act s 35: ‘Aboriginal and treaty rights are hereby recognized and affirmed.’ Treaty Days are celebrated in many provinces and significant anniversaries are commemorated by an exchanging of gifts and discussions of treaty issues.

United States

The United States also signed many treaties with Native Americans tribes after the first 1778 Treaty with the Delawares. Treaties were largely used by the United States to force Native Americans off their territory and in many cases the agreements made in the treaties were broken by the US.

Tribal sovereignty, however, is recognized in the US constitution and allows for the Native American peoples to engage with the Federal Government on a ‘nation to nation’ level. 

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What kind of treaty?
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Formal discussions of treaty have been ongoing since the 1979 formation of the Aboriginal Treaty Committee. While the Hawke Government indicated their strong support for the concept of treaty and was prepared to begin negotiations in 1988, the policy was later abandoned in favour of a policy of reconciliation. 

Despite this history, the current round of treaty discussion is still in its early stages and there has not been a formal negotiation of the process for achieving a treaty or what it might say. However various options have been suggested.

Legal academic George Williams suggests that any treaty outcome would be the result of starting point of recognition followed by a negotiation period which hammers out an agreement in the form of rights, obligations and opportunities. Such a treaty might recognise the history and occupation of Australia by Indigenous people, offer reparations for historical injustices and establish mutual goals for the future.

Indigenous academic Larissa Behrendt has also suggested that a treaty may include better protection for Indigenous rights, a basis for self-government and structures for decision making and further local treaties.

It is also unclear whether there would be a single national treaty between the Government and Aboriginal and Torres Strait Islander people or whether a treaty would be signed with individual Indigenous groups

Australia's first Indigenous silk, Tony McAvoy, spoke at the Redfern 'Need for Treaty' forum in March 2016. He argued that while treaty was achievable, the agreement must include an acknowledgement that Australia was not settled and that the assertions of sovereignty made by the British colonies are fundamentally flawed. 

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Sovereignty
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One of the major bases for the calls for treaty has been the concept of sovereignty. Sovereignty refers to the independence of a state and its ability to control its own affairs without interference.

Many Indigenous Australians claim that sovereignty over the land of Australia was never ceded to British colonisers and that this means Indigenous Australians should have the authority to govern their own lives. In practical terms however, sovereignty may mean different things to different people such as self-government or a recognition of the distinctive place of Indigenous culture. 

“A treaty forces you to see me as an equal, with a separate identity, history and culture that has existed for tens of thousands of years…  The thing we want recognised is our sovereignty.” – Nayuka Gorrie

Former NITV journalist Jeremey Geia, now known as Murrumu Walubara Yidindji, has reasserted sovereignty over Yidinji land near Cairns. Renouncing his Australian citizen and reverting primarily to traditional law, Murrumu claims that his cultural lands were never given up and all additions to the land made by colonisers are attached to those lands and therefore Yidinji property. 

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Treaty and Recognition
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There has been ongoing debate about the appropriate vehicle to pursue ongoing relations between Indigenous Australians and the Federal Government.  Recently there have been calls for both recognition of Indigenous peoples in the Australian Constitution and a treaty between the Government and Indigenous peoples.

While the proposals are related, each proposal serves a different practical purpose. The amending of the Constitution seeks to recognise Indigenous Australians in the founding document of the nation of Australia. A treaty seeks negotiation and agreement between two independent parties, separate from their domestic legal systems.

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There have been some concerns that Constitutional recognition would negate declarations of Indigenous sovereignty by formally including Indigenous Australians in the founding document of the Australian legal system. However, numerous legal scholars including Professor Megan Davis and George Williams argue that this is not the case. 

Tanya Hosch the co-Chair of Recognise, the campaign behind the movement to recognise Indigenous peoples in the Australian Constitution, has also said: "For me and so many other Aboriginal and Torres Strait Islanders peoples who support treaty and constitutional recognition, we know that this is not an either/or choice," 

Where to from here?
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State Treaties

Victoria has been the first state to make a move towards treaty discussions with Indigenous people. A meeting between 500 Indigenous Victorians and the Aboriginal Affairs Minister Natalie Hutchins in February has led to increased discussion on the topic of a state-based treaty. The Victorian Government has committed to a serious of talks and a set of guiding aims and the first forum was held on the 26th and 27th of May 2016. 

Over one hundred people also attended a treaty forum which took place in Redfern in March 2016 where Tony McAvoy, Tauto Sansbury, Terry Mason, Dr Chris Sarra and Yingiya Mark Guyula spoke in broad support of a treaty movement. 

In December 2016, the South Australian Government put $4.4 million aside over five years to support a treaty process and negotiation in that State. 

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Students, activists, community leaders, academics and anyone interested in the idea of a Treaty took part in Victoria's inaugural two-day 'Treaty and Self-Determination Forum' from May 26-27, 2016. After two packed days of talks which included some vigorous debates and a multitude of voices, NITV looks back at some of the key moments.

National treaty

There has also been increased discussion of treaty at a national level. The co-Chairs of the National Congress of Australia's First Peoples, have come out in support of the Victorian treaty discussions, suggesting that a treaty 'is more likely to produce tangible outcomes for Indigenous Australians than Constitutional Recognition'. 

Election 2016: PM talks 'invasion' and closes door on treaty
As Labor opens the door to treaty, Malcolm Turnbull argues for keeping the focus on constitutional recognition.

Prime Minister Malcolm Turnbull announced in June 2016 that he believed a formal treaty would undermine the campaign towards Constitutional recognition which should be seen as the first priority. This comment was made in response to a claim by Opposition leader Bill Shorten that he was 'up for the conversation on a treaty'. 

Indigenous Liberal MP Ken Wyatt has supported Mr Turnbull's position claiming that unless all parties give support to the Constitutional recognition campaign there is a real risk it won't succeed. While he has made it clear that he is not opposed to a discussion of treaty, Wyatt confirmed treaty discussion must come after an attempt at recognition.

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Timeline of Treaty
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1701 – Canada signs its first of many treaties with its Indigenous peoples.

1770 – Captain Cook arrives in Australia with orders to take possession of the land in the name of Great Britain with the consent of the Natives.

1778 – The United States signed their first written treaty, the Treaty of Fort Pitt, with the people of the Delaware, the Lenape people.

1835 - John Batman, a farmer in the Port Philip District of Victoria signed a treaty with the local Indigenous people however it was disregarded by the Victorian Government.

1840 – The Treaty of Waitangi was signed in New Zealand between Maori chiefs and British representatives of the Crown. 


 

1979 – The Aboriginal Treaty Committee was formed with the aim to educate and persuade the broader Australian community of the prospect of a treaty.

1982 – The National Aboriginal Conference proposes a structure for each Aboriginal nation to negotiate its own treaty. Recommendations are made to the Senate that a treaty making process follow the structure of agreements between the Commonwealth and the States, which are supported by the Fraser Government.

1987 – Prime Minister Bob Hawke said that there should be “a clear statement and understanding by the total Australian community of the obligations that the community has to rectify so many of the injustices that have occurred during our 200 years.”

1988 – A statement of objectives for Aboriginal people is presented to PM Hawke at the Barunga Festival and he responds by calling for treaty negotiations to occur.

1991 – Political support for a treaty wanes and a policy of reconciliation is instead adopted and formalised by appointment of the Council for Aboriginal Reconciliation. Yothu Yindi release their song ‘Treaty’ which quickly becomes an acclaimed protest song in the campaign for reform in Indigenous Affairs.  

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1998 – Prime Minister John Howard voices his opposition to a treaty and instead insists upon a non-binding recognition: “I hope we have some kind of written understanding. I don’t like the idea of a treaty because it implies that we are two nations. We are not, we are one nation.”

2000 – The Council for Aboriginal Reconciliation recommends that the Commonwealth enact legislation to create an agreement or treaty which could act as an instrument to resolve reconciliation.  

2010 – The UN Committee on the Elimination of Racial Discrimination recommends that Australia consider the ‘negotiation of a treaty agreement to build a constructive and sustained relationship with Indigenous peoples.’

2014 – Prime Minister Tony Abbott and the Chair of the Indigenous Advisory Council, Warren Mundine, both express their interest in the concept of treaty. They propose that rather than a national treaty that a structure be created for a treaty with the Federal Government and each Indigenous nation.  

2016 – The Victorian Government commits to talks with Indigenous peoples on treaty and produces a set of treaty aims. Prime Minister Malcolm Turnbull reaffirms his support of Constitutional recognition as discussions of a treaty surface before the 2016 election.