What you need to know
- Although the calls for a treaty with Australia's first peoples is not a new concept, discussion has intensified in recent years.
- State and Territory Labor governments have begun establishing frameworks to progress treaty making in Australia. However, even in jurisdictions actively progressing treaties, work is preliminary.
- Some jurisdictions have adopted alternative approaches to treaty making, which has resulted in a number of regional settlement agreements with Aboriginal groups in Western Australia and Victoria.
- Those regional settlement deals are broad-ranging, and intersect with third party tenure and approvals processes in numerous ways. Implemented largely through new government policy, proponents need to understand the implications for project development.
What you need to do
- Land users should be across the progress and scope of any local treaty/regional settlement agreements.
- Watch out for opportunities to consult with Government on treaty making and be ready to make submissions.
Time for treaty?
In May 2017, over 250 delegates attended the First Nations National Constitutional Convention, to discuss and agree on an approach to constitutional reform to recognise Indigenous Australians. The outcome of the convention was the "Uluru Statement from the Heart", signed by the majority of delegates and calling for:
- a referendum to be held to provide for a First Nations Voice to be enshrined in the Constitution, known as "the Voice to Parliament"; and
- the establishment of a Makarrata Commission to supervise a process of treaty making and truth telling.
The development of a treaty with Indigenous Australians is not a new concept, with calls going back several decades. However, the Uluru Statement from the Heart has given the issue greater moral force.
Since 2017, the matters called for in the Uluru Statement from the Heart have not progressed as the delegates had envisaged, particularly at the Federal level. However, as will be explored in this article, treaty making is still being progressed by particular State and Territory governments, in a range of different ways.
What is treaty?
Globally, treaties have been recognised as a mechanism for achieving a settlement between Indigenous peoples and government. In the Australian context, a treaty would be a formal agreement, negotiated between a government and an Indigenous group or groups, under which the parties acknowledge that they are distinct "nations" (to the extent permitted by Australian law), and accept responsibilities and benefits to ensure an ongoing relationship beneficial to all parties.
Practically, a treaty creates packages of rights, potentially formalised in legislation. For Indigenous people, such rights typically include: providing for structures that will enable self-determination; facilitating meaningful input into legislative processes and policy making; formalising land ownership and use rights; providing financial compensation and funding. In return, the treaty usually represents the settlement of all current and future claims against the government, and proposes a new way forward, while acknowledging the past.
State, Territory and Federal progress towards treaty
At this point, the status of treaty making in Australia is largely dependent on the government in power.
Currently, only Labor governments (Victoria, ACT, NT and Qld) are actively progressing treaty. Progress so far largely involves establishing the systems and frameworks for further consultation and negotiations. The exception to the Labor governments is the WA Labor government, which has no formal treaty process underway. However, as discussed in further detail below, some consider the South West Native Title Settlement (South West Settlement) and the Geraldton Alternative Settlement Agreement (Geraldton Settlement) to operate similarly to treaty.
Liberal governments are not actively progressing treaty discussions. While the Federal Government considers treaties should be addressed at state level, the state Liberal governments (NSW, SA, Tas) maintain that treaty is a Federal issue.
Jurisdiction | Started Treaty process? | Details | Alternatives to treaty? |
| Commonwealth | N | - Federal Government considers treaties best addressed at state/territory level.
| - Uluru Statement from the Heart proposals rejected in 2017.
- Committed $7.3 million to "co-design process" to develop models to support local and regional decision making processes, and increase involvement of Indigenous Australians in policy development and delivery of services that benefit Indigenous communities.
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| QLD | Y | - Published "Joint Statement of Commitment" and "Path to Treaty" program.
- Deputy Premier noted possibility of financial compensation in mid-2019.
- Eminent Panel established to provide leadership, support and stakeholder engagement.
- Eminent Panel provided report to Government in February 2020 on how to progress Path to Treaty.
- Qld Government intends to respond in coming months, but has indicated it represents "significant steps towards a shared future".
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NSW | N | - NSW Government says treaty is best introduced at Federal level.
- Labor opposition would establish treaty process if elected.
- NSW Aboriginal Land Council's key priorities include treaty.
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ACT | Y | - ACT Aboriginal and Torres Strait Islander Agreement 2019-28 obligates parties to work together to improve the social, environmental, economic and cultural infrastructures within their communities.
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| Victoria | Y | - Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) requires Vic Government to work in partnership with an "independent representative body" to enable future treaty negotiations.
- Independent representative body, First Peoples' Assembly of Victoria, is responsible for laying "ground rules" for treaty negotiations. It is Victoria's first democratically elected body for Aboriginal Victorians. All representatives are Traditional Owners and native title holders have guaranteed representation on the Assembly.
- Assembly met for the first time in December 2019. Discussions on the ground rules for treaty negotiations are to commence in June 2020.
- Treaty Advancement Commissioner's role is to maintain treaty process momentum.
- UN Declaration on the Rights of Indigenous Peoples will form cornerstone of decisions on treaty process.
| - Traditional Owner Settlement Act 2010 (Vic) is designed to "advance reconciliation and promote good relations" between Victoria and Indigenous Australians.
- Settlement Act provides for traditional owner groups to negotiate legally binding settlement packages with Government.
- Three recognition and settlement agreements are in place (Gunaikurnai, Dja Dja Wurrung and Taungurung).
- Although similar to WA's South West Settlement, Settlement Act agreements fall short of comprising treaty (they do not create any structures enabling self-determination).
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| TAS | N | - Tas Government says treaty is a national issue and will not consider a state-based treaty.
- Labor opposition is committed to progressing treaty discussions if elected.
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| SA | N | - Current SA Government decided not to pursue treaty discussions commenced by former SA Labor Government in 2016.
- Former Government committed $4.4m to establish treaties across SA. Treaty Commissioner was appointed in 2017 and treaty negotiations commenced with three Aboriginal nations.
- Consultations resulted in Buthera Agreement, which provided resources for capacity building in Narungga nation. This process is no longer being pursued.
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| WA | N | - Not engaged in formal treaty process.
| - Negotiated the South West Settlement, the largest native title settlement in Australia's history, with the Noongar people. Some consider this a treaty equivalent.
- Settlement comprises six ILUAs and final resolution of all native title claims in exchange for recognition and substantial benefits package (including governance institutions).
- Recently negotiated Geraldton Settlement with Yamatji community, which includes non-exclusive native title determination, registered ILUA and economic package.
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| NT | Y | - Treaty Commissioner Bill 2020 (NT) to implement Barunga Agreement (2018) and establish Office of the Treaty Commissioner.
- Barunga Agreement outlines NT Government's commitment to commencing treaty discussions.
- Treaty Commissioner's role is to consult with Aboriginal people to establish whether they want treaty (or treaties) and, if so, develop a framework for treaty negotiations.
- Shared view is that compensation for the loss of use of traditional lands is within scope.
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What would treaty mean for native title compensation liability and non-parties?
A treaty is fundamentally an agreement between Indigenous people and government. In broad terms, the goal is to acknowledge the past and provide a new way forward on an equal footing. We can expect a greater role for Indigenous people in parliamentary decision making and some realms in which self-determination will be established. It is not clear, though, how reparations or native title compensation fit into the picture.
State governments, in particular, are now aware that they have a significant native title compensation liability, acknowledged in their budget papers. New South Wales and Western Australia, in particular, are seeking to pass native title compensation liability through to land users statutorily or contractually. With such measures in place, it seems unlikely that they will now accept native title compensation liability through the treaty process.
There is also the reality that acts of dispossession overwhelmingly occurred prior to the period where, by virtue of the Racial Discrimination Act 1975 (Cth), the States have statutory liability arising from the Native Title Act 1993 (Cth). One approach may be to exclude Native Title Act compensation entitlements from the scope of a treaty. Instead, the focus could be on community-wide redress for the economic hardship of earlier dispossession.
For those land users concerned about native title compensation risk, we doubt that the various State treaty processes will comprehensively address the issue for the benefit of third parties. However, as the subject matter of State and Territory treaties is articulated, land users will have a better idea of whether and how they will be impacted. Their relevant governments are likely to consult with potentially affected third parties, and that is an opportunity that should be taken up.
We are continuing to monitor the treaty making processes in all jurisdictions, and will provide updates as they arise.
Authors: Clare Lawrence, Partner; Joel Moss, Senior Associate; and Tess Birch, Lawyer
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