Introduction by Croakey: The Voice, Truth Telling, and Treaty – alongside the National Agreement on Closing the Gap and the partnership between governments and the Coalition of Peaks – will “provide our nation with the complete roadmap to improve the life outcomes of our people”, according to the Coalition of Peaks, a representative body of over 80 Aboriginal and Torres Strait Islander community controlled peak organisations and members.
With polling showing that a majority of Australians in a majority of states currently support a constitutionally enshrined Indigenous Voice to Parliament, the Liberal Party’s decision today to formally oppose the referendum for the Voice is “consigning themselves to irrelevance”, according to an insightful analysis by Rachel Withers for The Monthly.
“This didn’t come as a surprise,” Withers wrote. “After months of stupid questions, cynical games, conspicuous absences and empty apologies, it was obvious where the Liberals were going to land.”
Pat Anderson, on behalf of the Uluru Dialogue, said the Liberal Party’s decision to campaign for a ‘No’ vote “ignores the majority of First Nations Peoples at the grassroots across the country, ignores the months of work done by three referendum working groups to ensure the wording is sound, and ignores the majority view of their own constituents”.
“Their decision is a vote for business as usual,” she said in a statement. “It is a vote for the domination of Canberra politicians and Canberra bureaucrats in the lives of grassroots communities. It seeks to entrench the status quo which is failing our people. Legislative bodies have come and gone, only constitutional enshrinement will guarantee First Nations Peoples will have an enduring say and ultimately improve First Nations lives.”
Meanwhile, GetUp CEO and Widjabul Wia-bal woman Larissa Baldwin-Roberts said in a statement that Opposition leader Peter Dutton and the Liberal Party are wrecking a moment to unite the country and recognise First Nations voices. “The GetUp movement will campaign for ‘yes’ and continue building the momentum towards Treaty, land rights and truth telling in this country,” she said.
The Albanese Labor Government introduced a proposed Constitutional Alteration Bill into Parliament last week, with a Joint Select Committee on the Aboriginal and Torres Strait Islander Voice now considering the Bill. Public submissions addressing the provisions of the Bill will be accepted by the Committee until 21 April 2023, with a final report due 15 May.
In the below article, first published in The Conversation with the title ‘What actually is a treaty? What could it mean for Indigenous people?‘, Associate Professor Harry Hobbs, Professor Heidi Norman and lecturer Matthew Walsh, Anaiwaan man, from the University of Technology Sydney, discuss the second component of the Uluru Statement from the Heart.
“A treaty acknowledges Indigenous peoples are a distinct political community different to other Australians. This is because Indigenous peoples are the only group of Australians who owned, occupied, and governed the continent before colonisation,” they write below.
This is the second article in a three-part series published by The Conversation explaining Voice, Treaty and Truth. Read the first article here, and see tweets on the referendum beneath the article.
Harry Hobbs, Heidi Norman and Matthew Walsh write:
The Uluru Statement from the Heart calls for Voice, Treaty and Truth. These aspirations are intended as a sequence of reforms, that advance towards a just settlement with First Peoples.
The Federal Government is committed to holding a referendum later this year to put an Aboriginal and Torres Strait Islander Voice in the Australian Constitution. The Government has also agreed to implement the Uluru Statement “in full”.
Following the referendum, it’s expected attention will shift towards a Makarrata Commission to “work on a national process of treaty-making and truth-telling”. In fact, reports suggest the government might move even faster.
For generations, Aboriginal and Torres Strait Islander peoples have called for a formal treaty or treaties to recognise their sovereignty “and set out mutually agreed terms for our relationship with the Australian government”.
But while Treaty has long been part of the political landscape, it is not well understood. Many Australians wonder what a Treaty is, what it would achieve, who it would be negotiated with, or for whom, and how. We’ll explore some of these questions here (in brief).
When European colonial powers encountered Indigenous peoples, they often negotiated treaties. These agreements dealt with a range of matters, including trade and military alliances. They also set out rules to share the land and maintain peaceful relationships.
These colonial-era treaties were regularly broken. However, they recognised Indigenous peoples had the right to deal with land and exercised sovereignty over that land.
The British did not engage in treaty talks in Australia. They never sought to negotiate with the owners of this land. Instead, they claimed the land belonged to no one and took it for themselves.
Historians have debated why the British took this approach. Some have argued as a penal colony with a substantial military force there was no need to negotiate trading relationships with the original owners. Others have argued the racist attitudes of the day were influential.
Nobody knows why the British didn’t negotiate a Treaty with the First Peoples, as was custom at the time. But Australia is now an outlier.
Whatever the reason, the result is Australia is an outlier. As a result, many Aboriginal and Torres Strait Islander peoples believe the moral and legal basis of the nation is “a little legally shaky”.
Treaty and recognition
The absence of a Treaty is one of the major challenges facing the Treaty debate in Australia. Without a history of treaty-making, the concept of what a treaty is or involves remains vague for many people, including government.
It means some people can argue a Treaty is dangerous or it would lead to the breakup of the nation. This makes little sense because a Treaty is a marriage not a divorce. It’s about bringing communities together and building strong relationships based on self-determination.
Governments might argue they’re already engaged in treaty-making. There are many examples of bureaucracy adapting its policy formulation and delivery to reflect community aspirations for a greater say in the delivery of services.
Such “partnerships”, “co-design” and local decision-making with government are valuable. They mark an important shift in promoting Aboriginal and Torres Strait Islander peoples’ participation in policy development and service delivery. But simply calling an agreement a “treaty” doesn’t make it a treaty.
Australia has signed up to a range of international legal instruments that concern the rights of Indigenous peoples. These legal instruments set a clear standard for what makes an agreement a treaty. A treaty must satisfy three conditions.
A treaty acknowledges Indigenous peoples are a distinct political community different to other Australians. This is because Indigenous peoples are the only group of Australians who owned, occupied, and governed the continent before colonisation. This recognition also acknowledges the historic and contemporary injustices that invasion has caused
A treaty is a political agreement reached by a fair process of negotiation between equals. Negotiation helps ensure everyone’s interests can be considered. But securing a fair negotiation process can be difficult. In Victoria, the First Peoples Assembly and State government have agreed to a Treaty Negotiation Framework that sets out principles to guide Treaty talks.
Treaties involve both sides committing to responsibilities, promises and principles that bind the parties in an ongoing relationship of mutual obligation and shared responsibility. Most importantly, while the outcomes of any negotiation will differ according to the parties, a treaty is built on the recognition of Indigenous peoples’ inherent sovereignty. As part of this, a treaty will provide for some degree of self-government. What this looks like in practice will be worked out in negotiations.
A treaty will also include a range of other elements. It could include financial compensation, return of land, formal recognition of historic wrongs, and symbolic gestures of reconciliation, such as apologies.
Treaties are unique agreements. As Professor Megan Davis explains, they are aimed at “settling fundamental grievances, and establishing binding frameworks of future engagement and dispute resolution”.
Modern treaties are different from historic treaties.
There is a long history of treaty-making all over the world from which Australia can draw lessons. But it’s important to note modern treaties differ from those negotiated in colonial periods. They are more technical and legally complex. They are also negotiated against a long history of inequitable relationships.
They will also be subject to Australian law. While colonial-era treaties were international agreements between two sovereign communities, modern treaties will be subject to Australian law.
Treaty is happening now
Treaty is a longstanding aspiration of First Peoples in Australia. It is only in recent years, however, governments have decided to talk treaty.
Progress has been slow, but important steps have been taken at the state and territory level. For instance, in February this year, the Queensland government introduced the Path to Treaty Bill 2023 into the state parliament. The bill will establish and finance an independent First Nations Treaty Institute to “help prepare and support First Nations people for treaty negotiations with the state”.
That same month, the South Australian government introduced a bill to establish a Voice to the Parliament, with a treaty process to follow.
In Victoria, after several years of patient work, negotiations between the First Peoples Assembly and state government are expected to begin by the end of the year. Similar processes are underway in the Northern Territory, Tasmania and the ACT.
Every treaty process has its own challenges and complications and it’s too early to tell whether these processes will result in meaningful settlements. Nevertheless, they demonstrate two key things.
First, Treaty is a matter of political will, not legal impossibility.
Second, looking towards the referendum later this year, the existence of treaty processes across the country suggests Australians may be willing to deal with the unfinished business of colonisation and its consequences.
About the authors
Harry Hobbs is an Associate Professor in the UTS Faculty of Law. Hobbs researches and teaches in the fields of public law, rights of Indigenous people and international law.
Heidi Norman is a Professor in the Faculty of Arts and Social Sciences at UTS, and a leading researcher in the field of Australian Aboriginal political history.
Matthew Walsh is an Anaiwaan man and lecturer in the Faculty of Law at UTS. Walsh has lead a number of programs in Indigenous policy engagement and implementation across government, not-for-profit and corporate sectors and higher education.
The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
More from Twitter
See the Uluru Statement website. 
Read the article by Professor Fiona Stanley and Professor Marcia Langton.
Note from Croakey: The Uluru Dialogue statement was updated after initial publication.
See Croakey’s archive of articles on the Uluru Statement from the Heart.
