The Federation Press

Treaty

Overview

Australia’s first peoples are on the lowest rung of Australian society and are largely locked out of the wealth of a very affluent country. This book takes a fresh, practical look at whether modern treaty-making between Indigenous peoples and government in Australia is feasible and whether a treaty could help Australia solve some of these practical problems – as well as problems of principle.

In doing so, it looks at the successes and failures of treaties in the United States, Canada and New Zealand. Treaty challenges readers to take seriously the question whether, after the Mabo case and the Reconciliation movement, Australia too should go down the treaty path.

Reviews

This is a timely and important book. It explores both why and how relationships between Indigenous and other Australians could be placed on a better, more consensual footing by the development of a treaty. It is written by four bright, youngish, Australian lawyers, one of whom is Indigenous, but it is not overly legal in its approach and should be easily read by anyone with a general interest in Australian Indigenous affairs (which should be all Australians). Treaty is well organised and clearly written ... - Anthropological Forum, Vol 16(2), July 2006

Treaty provides a refreshing and dynamic, yet balanced, view of the significance of the treaty debate in Australia. - Queensland Lawyer, Vol 26, 2006

[Treaty] is a collaborative effort of four authors, each an expert, who bring an impressive array of skills and experience to the subject ...
... Treaty is unquestionably the best work in the subject in Australia and is a fine resource from which to launch a discussion. - Australian Journal of Politics and History, Vol 52 (3), September 2006

Treaty offers a coherent and accessible argument ... [It] concludes that while there may be difficulties on the path ahead, the call for a treaty is an insistent one and that its main appeal is in “putting negotiation front and centre in dealings between government and indigenous people”. It offers a process broad enough to address both the practical and the symbolic and, as a foundational document for a renewed society, it can speak to the past, the present and the future. I’m convinced! Treaty now! - Civil Liberty, Issue 203, December 2005

Written by four leading experts in Indigenous law and policy in Australia, Treaty starts from the simple fact that there “has never been a moment in Australia’s history where a formal agreement has been made with Aboriginal and Torres Strait Islander peoples” (p. 1)
Unlike the situation in New Zealand or in Canada and the United States , treaty-making did not accompany the colonial enterprise in Australia , where Europeans simply seized the continent. Australia ’s original owners have been systematically excluded from the development of the Australian state, which even today resists recognizing Aboriginal jurisdiction of virtually any sort or contemplating, more than in passing, Aboriginal political organization of much significance.
While the authors briefly review some of this history, their primary concern is not the past but the future. In eight brief, accessible chapters (the text as a whole is only 155 pages), they explore the possibility and potential effects of making a treaty or set of treaties—formal, legally binding agreements—between Indigenous peoples and the Commonwealth government of Australia and/or its constituent states and territories.
Among the topics they examine: the history of the Australian treaty debate; the effect treaties might have on Indigenous socioeconomic conditions; the meaning of sovereignty not only in law but to Indigenous peoples in Australia; possible lessons from treaty relationships in New Zealand and North America; recent developments regarding Native land title in Australia and the significance of Native title developments for contemporary treaty-making; various treaty models; and the challenge of developing a productive treaty process.
While the authors do not insist that the treaty approach is the only viable political option for Australia today, their wide-ranging discussion constitutes a provocative reconsideration of the relationship between Australia and its Indigenous peoples. - NNI Research Report No 3 from the Native Nations Institute for Leadership, Management, and Policy at the University of Arizona, USA, October 2005

The whole point of Treaty ... is to answer all blanket dismissals and the various nagging anxieties that have dogged the subject of a domestic treaty ... While the Prime Minister’s assertion [that “a nation ... does not make a treaty with itself”] has the beguiling authority of an apparently ‘self-evident truth’, ... Treaty reveals that hundreds of such localised agreements have already been concluded between Indigenous Australians and all kinds of public and private bodies. ...
One of Treaty’s great strengths is that it examines closely propositions that appear to lodge issues in ‘dead ends’, opening up the arguments to new ways and creating a spectrum of options whose progress seems stalled.
The resulting optimism is bolstered by evidence of successful agreements made here and overseas with indications of the positive benefits such agreements have effected in the daily lives of the Indigenous signatories.
Aside from the persuasions of the research and analysis they present, the quiet, warm and reasonable tone adopted by the authors is likely to charm readers rather than alienate them; confrontation, moral outrage and blaming are conspicuously absent; uncomfortable facts are presented briskly and with cool detachment. - Law Society Journal (New South Wales), Vol 43(6), July 2005

The Shared Responsibility Agreement ideology ... needs to be seen by its architects as offering us potential to take the agreement-making idea to serious matters like a treaty ... do we have the courage and leadership to gift our children a truly reconciled and just future in one nation?
The governments of today have unilaterally decided that we are to be mainstreamed into a society that elevates the individual above traditions and values forged over more than 50,000 years, around community and belonging to extended family relations centred on kinship rules and responsibilities, grounded in our spiritual and physical relationship to our lands and our ancestry.
The Shared Responsibility Agreement ideology should go beyond just service delivery and better public sector outcomes. It needs to be seen by its architects as offering us potential to take the agreement-making idea to serious matters like a treaty or an agreement of reconciliation or a referendum to resolve the unfinished business.
We have two years in which to prepare ourselves for the planned reconciliation convention. ... The opportunity and the task lie before us, but do we have the courage and leadership to gift our children a truly reconciled and just future in one nation? - Pat Dodson, Sydney Morning Herald, 1 June 2005

A careful and considered work, the result of a three-year research project, rather than a fervent outpouring, Treaty carefully marshals the facts and painstakingly explores the arguments. ... Treaty does away with the false dichotomy that Australia has a choice between symbolic and what the Federal Government has dubbed “practical reconciliation”. Instead, the authors argue persuasively, we can and should have both, and further, a treaty can serve the dual purpose of being a meaningful gesture and having a material effect. - Lorien Kaye, The Age, 18 June 2005

Table of Contents

Forewords by The Rt Hon Malcolm Fraser AC CH and Professor Marcia Langton AM (see Extracts)

The Treaty Debate
Treaty at the Policy and Practical Level
Indigenous Peoples and the Law
The Question of Sovereignty
What Can we Learn from Overseas?
What does Native Title Offer?
Models for an Australian Treaty
The Path Forward

Of interest...