A look at what a treaty is and how the adoption of a treaty might change the political landscape for Aboriginal and Torres Strait Islander peoples.
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Explainer: What is a treaty?
A look at what a treaty is and how the adoption of a treaty might change the political landscape for Aboriginal and Torres Strait Islander peoples.
Published 22 June 2016 at 4:10pm, updated 6 February 2017 at 4:25pm
What is a treaty?
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.
What do other countries have?
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.
Sovereignty
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.
Treaty and Recognition
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.
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
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?
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.
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'.