• 'There is without doubt a growing desire within the Australian populace for some resolution with Aboriginal Australia': Tony McAvoy. (The Point)Source: The Point
Australia's first Indigenous Senior Counsel, Tony McAvoy is a strong advocate for treaty over recognition. He addressed the 'Need for Treaty' forum in Sydney on Tuesday night. This is what he had to say.
Tony McAvoy

The Point
15 Mar 2016 - 12:46 PM  UPDATED 15 Mar 2016 - 4:38 PM


  • A treaty is achievable
  • There must be an acknowledgment that Australia was not settled
  • The assertions of sovereignty by the British Colonies, and now by the Commonwealth of Australia, are flawed
  •  We need an Assembly of First Nations
  • There must be land reform
  • There must be changes to the land tenure arrangements 
  • There must be reparations, compensation and equitable benefit sharing
  • Structural reform needs to take place at many levels
  • There needs to be guaranteed representation in Parliament

I pay my respects to the Gadigal People, their ancestors and their spirits.  I also pay my respects to the Elders present here tonight and my fellow panellists.

I have assumed that the vast majority of people here tonight are those that believe that Australia should enter into treaties with the First Nations of this country in order to rectify past injustices, and to set the scene for a new and respectful future.  But I note though that some of you will be here because you are curious about what a treaty process and the potential outcomes might look like.

I am here tonight to say those of you who come with a desire to enter a treaty and move forward that it is my view that it is achievable.  It is achievable within the next few years that we will have set the framework for the treaties to be entered into by First Nations. 

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The reason I say it is achievable, is that there is without doubt a growing desire within the Australian populace for some resolution with Aboriginal Australia.  Although the politicians and those that advise the Executive Government and the political parties may very well be saying that it is not in the national interest to enter into any form of settlement with the First Nations of Australia, it is my belief that there is a significant portion of the population who would like it to be done. 

- We know this because of the polling that has been undertaken as part of the Recognise campaign. 

- We know this because the Victorian Government has said it is prepared to attempt to negotiate a State based treaty with the First Nations of Victoria. 

- We know this because John Pilger in his movie, Utopia, has pointed out to all those who would be interested throughout the world that Australia has remained in this colonial backwater of cultural and legal denial. 

- We also know that the time to push for a treaty is right now.  The opening that has been created by our brothers and sisters in Victoria is one which hasn’t been seen for thirty years. 

We must ensure that the Victorian process is successful, and is consistent with a national process that enables the Yolngu National Assembly, my own Wiri people, Dr Chris Sarra’s Gurang Gurang people, the Noongar people, and everybody in between to reach their own settlements.

However, if we are to take advantage of the opportunity that has been presented to us we must organise ourselves.  We must create a national collective voice that allows us to harness all the power at our disposal to ensure that this treaty process results in as fair and as equitable an outcome as possible. 

I know, and I have seen it many times, when we as Aboriginal people stand on our land with our ancestors there is a truth in our existence, and our condition which is undeniable. That is, we were here, and we have been subjected to the worst forms of genocide and dispossession and we are still here.

When each of us comes together with a collective voice, it is my view that is when we are at our strongest.  That is the form that we need to take for the purpose of negotiating final settlements with those that have dispossessed and disenfranchised us.

In my view, we need an Assembly of First Nations to achieve the outcome that we all seek, and I call upon each First Nation to commit itself to the creation of an Assembly of First Nations and the pursuit of final settlement with the Governments of Australia though a treaty process.

Many people ask me what would a treaty or treaties look like and I say in reply, there must be at least four broad heads of agreement

Firstly, there must be an acknowledgment that Australia was not settled and that by reason of that error, the assertions of sovereignty by the British Colonies, and now by the Commonwealth of Australia, are flawed.

The acknowledgment that the assertion of sovereignty by the British was and remains flawed is something that must be remedied.  The remedy is by agreement or treaty. That will mean for some areas regional government or regional autonomy should be entertained and be part of the negotiations should those people, those First Nations, wish to pursue that outcome.  That seems to me to be the high water mark.  I am not aware that anybody is seriously suggesting that First Nations should become totally independent states free from any relationship with the Australian Government. Beneath that high water mark there will be a range of circumstances and arrangements that should be able to be entered into which accommodate the extent of their self-determination that each particular First Nation or group of First Nations is able to achieve.

Secondly, there must be land reform to ensure that all First Nations have possession and ownership of such lands as may be available including acquisition processes over time to ensure that there are sufficient lands and resources for the prosperity of that First Nation into the future indefinitely.

Thirdly, there must be reparations, compensation and equitable benefit sharing. The benefit sharing arrangements should include guaranteed, and preferably statutory, entitlements to a proper royalty from all resource use going into the future. 

Fourthly, is the need for structural reform.  Structural reform will need to take place at many levels including. In my view, guaranteed representation in Parliament. There should be other Constitutional reform. For instance, when the throne passes from Queen Elizabeth II to Prince Charles there will be a concerted push by the Australian Republican Movement for the creation of an Australian Republic free from the colonial ties to Britain.

It is at that point that substantial constitutional reform ought to occur in a way that acknowledges the contested sovereignty of Australia, or if agreement has been reached then recording and enabling the outcomes.

There must be changes to the land tenure arrangements so that we obtain a tenure which is the equal of the British notion of freehold and not the fragile lesser form of native title rights and interests which we are offered at present. 

Our views and decision making processes must be given a proper position in the environmental and planning assessment and decision making processes.  This includes our ability to protect our sites of importance and significance.

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The aim from our point of view, in entering a final settlement with the Governments must be to put ourselves in a position where we can overcome the atrocity and justices of the past and as far as possible put ourselves into a position which is the modern day equivalent of where we might have been.  There is no sense in suggesting that we be enabled to return to that which existed prior to the British invasion because it cannot be done. Nor can we in all seriousness suggest that the British should now leave.  What we must do is figure out what we need in order to ensure our First Nations are able to prosper culturally and spiritually; that individuals in our First Nation are given the conditions to achieve the best health and education outcomes available.

The dilemma which confronts us is how we create the environment where the economic and cultural imperatives that saw us through millennia can be maintained in the western world in which we now live.  I think must be some form of real existence by which we can live happy and healthy lives where which we are spiritually and culturally enriched and also highly educated and in possession of the capacity and rights to make decisions about our own existence.

Thank you.

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