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Did you know Australia doesn’t have a treaty with Aboriginal and Torres Strait Islander Peoples?

This is a major concern for many First Nations people. But why? In short, the lack of treaty in Australia goes to the very heart of the wound in our nation. The absence of a treaty suggests an ongoing denial of the existence, prior occupation and dispossession of First Nations Peoples in Australia and highlights a lack of engagement and relationship between First Nations people and non-Indigenous Australians.

What's a treaty?

Calls for a treaty in Australia refer to a formal agreement between the government and First Nations Peoples that would have legal outcomes. A treaty could recognise First Nations Peoples’ histories and prior occupation of this land, as well as the injustices many people have endured. It could also offer a platform for addressing those injustices and help to establish a path forward based upon mutual goals, rather than ones imposed upon First Nations people.[1]

Treaties are accepted around the world as a way of reaching a settlement between First Nations Peoples and people who have colonised their lands. New Zealand, for example, has the Treaty of Waitangi, an agreement signed in 1840 between the British Crown and over 500 Maori chiefs; while Canada and the United States have hundreds of treaties dating back as far as the 1600s.[2] 

Historical lack of treaty with First Nations Peoples in Australia

Australian governments have never entered into negotiations with First Nations Peoples about the taking of their lands or their place in the new nation. And yet, the idea of a treaty goes back many years. In 1832 the Governor of Van Diemen’s Land remarked that it was “a fatal error ... that a treaty was not entered into” with First Nations Peoples in what we now know as Tasmania.

In more recent times, Prime Minister Bob Hawke promised to deliver a treaty by 1990. However, the controversial term raised alarm and was changed to a ‘document of reconciliation’, Makarrata* or compact. These discussions were eventually replaced by the push for Constitutional recognition.

*Makarrata is a Yolngu word meaning ‘the resumption of normal relations after a period of hostilities’. Some people preferred the word Makarrata because they felt the word treaty was too divisive and more often describes agreements between countries rather than within countries between different parts of the population.

Why is a treaty important?

A treaty could provide, among other things:

  • a symbolic recognition of First Nations Peoples’ sovereignty and prior occupation of this land
  • a redefinition and restructuring of the relationship between First Nations Peoples and non-Indigenous people
  • better protection of First Nations people’s rights
  • a basis for regional self-government
  • guidelines for local or regional treaties
  • structures and systems for local and regional decision-making processes.[3]

What's sovereignty, and what does it have to do with a treaty?

Many First Nations people base calls for treaty on claims to sovereignty. The word 'sovereignty' is usually used to describe the independence of nation states. It refers to a nation’s ultimate authority to govern its own affairs without interference from other countries.

Many First Nations Peoples in Australia claim sovereignty on the grounds that First Nations Peoples have never surrendered to the government. Therefore, they claim that their sovereignty, their authority to govern their own lives, has never been extinguished.

Sovereignty is a means for First Nations people to seek greater control over their lives and limited government interference in First Nations affairs.[4] First Nations sovereignty in Australia includes concepts such as self-government, autonomy and the recognition of cultural distinctiveness, though not the creation of a new country.[5]

Supporters of a treaty generally agree that a treaty must acknowledge First Nations sovereignty. However, previous governments have claimed that recognising First Nations sovereignty would fracture the nation. For example, Prime Minister John Howard said that “[a] nation ... does not make a treaty with itself”.[6] Today the issue of sovereignty continues to underlie calls for, and opposition to, treaty.

You can find links to more information about First Nations sovereignty further down the page.

How is treaty different from Constitutional recognition?

Calls for a treaty and proposals to recognise First Nations Peoples in the Australian Constitution are two related but separate issues.

Treaties and constitutions serve two different purposes: a treaty is ‘a formal agreement between two or more independent states in reference to peace, alliance, commerce, or other international relations’. [7] A Constitution is a set of governing laws.

These initiatives aren’t mutually exclusive, and can even complement each other. There are concerns among some groups that Constitutional recognition would effectively negate First Nations sovereignty, making future attempts at a treaty impossible. However, legal experts state that none of the current proposals to change the Constitution do anything to undermine claims to First Nations sovereignty.[8] [9]

Find out more about Constitutional recognition here.