WHAT IS TREATY?

THE HISTORY OF TREATY IN AUSTRALIA

Find out more antar.org.au/treaty

TREATIES ELSEWHERE

WHERE ARE WE UP TO?

THE STATES AND TERRITORIES

TREATY IN AUSTRALIA

Treaty is an agreement. Treaty is a legally binding settlement involving two or more parties, nations, groups,organisations or interests. Treaty is reached after a process of negotiation and not merely consultation. Consultationcan be understood as a one-way process. Negotiation, on the other hand, involves partiescoming to the table as equals working towards a mutually beneficial resolution. Treaty can also be called a Settlement, Agreement, Pact, Accord, Covenant or Compact.Regardless of name, they all bind parties together in agreement, outline their rights andobligations, and define the ‘rules’ of their relationship. Throughout history, nations have formed treaties with the Indigenous peoples of thelands they colonised. New Zealand, Canada and the United States are examples. Australiaas a nation, however, has never ‘treated’ with its First Nations.

What is Treaty?

“We as a nation must come face to face with our darkand traumatic history. We must confront the impact ofcolonisation and begin the process of acknowledgment,recognition and healing... Anyone who has listened to

me talk publicly knows that I am concerned with what Icall ‘unfinished business’. A Treaty is a good place to

start with addressing this unfinished business” Professor Mick Dodson, NT Treaty Commissioner

Additional Online Resources

SBS, Explainer: What is a Treaty?

United Nations Declaration on the Rights ofIndigenous Peoples articles 3, 4, 5, 6, 19, 20, 26, 27,28, 37, 38

Aboriginal Victoria, What is a treaty?

NITV, Treaty for Dummies

Click to view resource online (if supported)

Photo: Mick Dodson, now NT Treaty Commissioner, pictured in 2001 with the Sea of Hands.

Since 1788, Treaty has been a glaringquestion mark for the continent ofAustralia. There were an estimated750,000 Aboriginal and Torres StraitIslander peoples spread out acrossAustralia, from over 400 separate nationsand as many language groups. Pre-Federation, there was very littlediscussion or consideration of Treatywith the First Nations peoples ofAustralia. In 1835, in an isolated case, John Batmanapproached the Wurundjeri peoples witha contract to ‘purchase’ land around whatis now Melbourne in Port Phillip Bay.Batman made a tenuous claim over asignificant portion of the land of the Kulinnation. After, the Batman treaty wasdeclared invalid by NSW GovernorBourke on the basis that the BritishCrown claimed to own all of Australia andthat only it had the authority to sell ordistribute land.

During the 1930s, William Cooper andother leaders from the AboriginesProgressive Association collected 1,814signatures petitioning Prime MinisterJoseph Lyons and King George VI tointervene on behalf of AustralianAborigines: ‘for the preservation of ourrace from extinction and to grantrepresentation to our race in the FederalParliament.’ In 1938, both the Aborigines ProgressiveAssociation and the Australian Aborigines’League declared 26 January a ‘day ofmourning’ for Aboriginal people. In l948, The Commonwealth Nationalityand Citizenship Act granted Australiancitizenship to all Australians, includingAboriginal and Torres Strait Islanderpeoples, for the first time. However, at theState level, Aboriginal and Torres StraitIslander peoples still were subject to legaldiscrimination.

1788

1835

1930

1938

1948

The History of Treaty in Australia

In 1962, the Commonwealth Electoral Actwas amended to enable all Aboriginal andTorres Strait Islander peoples to vote. In 1963, clan groups living around Yirrkalapresented Parliament with the YirrkalaBark petitions, written in both YolnguMatha and English. The petition protestedthe excision of their lands and the grantingof bauxite mining leases withoutconsultation. In 1965, a group of University of Sydneystudents, including Charlie Perkins,embarked on the Freedom Rides aroundregional New South Wales. The FreedomRides aimed to bring national andinternational attention to the racism andthe poor living conditions of Aboriginalpeople in country New South Wales. In 1967, Australians decided (over 90%voted ‘yes’) in a referendum to give theFederal Government power to make lawsfor Aboriginal and Torres Strait Islanderpeoples and include them in the Census.

In January 1972, four Aboriginal menestablished The Tent Embassy outsideParliament House in Canberra. The TentEmbassy is a powerful symbol of protestagainst successive Australian governmentsfor their approach to Indigenous issuesand to stand for Aboriginal sovereigntyand their right to self-determination. Inthe same year, the Department ofAboriginal Affairs was created. In 1975, The Australian Parliament passedthe Racial Discrimination Act to helpensure that all Australians, includingAboriginal and Torres Strait Islanderpeoples, were treated equally and enjoythe same opportunities. In 1985, Uluru was returned to itsTraditional Owners.

1962

1965

1972

1967

1975

The History of Treaty in Australia

1963

1985

In 1988, Galarrwuy Yunupingu AM andWenten Rubuntja AM presented TheBarunga Statement to Prime Minister BobHawke. The Barunga Statement was adeclaration of the aspirations of ‘theIndigenous owners and occupiers ofAustralia’ and a request to Government forrecognition, and the granting of full civil,economic, social and cultural rights.Hawke responded with a promise that aTreaty would be negotiated during histerm of Parliament. Hawke was unable tofulfil his promise to First Nations.

1988 2009

The History of Treaty in Australia

In 2009, Australia endorses the 2007United Nations Declaration on the Rightsof Indigenous Peoples two years after itbeing adopted by the General Assembly.Australia was one of only four nations thatoriginally voted against The Declaration.

Additional Online ResourcesClick to view resource online (if supported)

SBS, Explainer: What is a Treaty?

United Nations Declaration on the Rights of IndigenousPeoples articles 3, 4, 5, 6, 19, 20, 26, 27, 28, 37, 38NITV, Batman Treaty Explainer (Links to Facebook)

State Library of Victoria, Batman’s Treaty

ABC Radio National, Possession and Batman’s Treaty

Reconciliation Australia, Reconciliation Timeline

AIATSIS, Yirrkala Bark Petitions 1963

AIATSIS, Commemorating the Freedom Ride

National Museum of Australia, Defining MomentsAboriginal Tent Embassy

AIATSIS, The Barunga Statement

“We, the Indigenous owners and occupiers ofAustralia, call on the Australian Government and

people to recognise our rights … And we call on theCommonwealth Parliament to negotiate with us aTreaty recognising our prior ownership, continued

occupation and sovereignty and affirming our humanrights and freedom”

1988 Barunga Statement

Photo: Galarrwuy Yunupingu AM and Wenten Rubuntja AM present Prime Minister Bob Hawkewith the Barunga Statement in 1988.

The Treaty of Waitangi is considered one of the founding documents of New Zealand.The Treaty of Waitangi was signed on 6 February 1840 by Maori chiefs andrepresentatives of the British Crown. It was created amidst conflict between the Maoripopulation and British subjects who were living and working in New Zealand. The proposed solution was to appoint Britain as ‘overseer’ and to unite all under onelaw. The Treaty was not drafted as a constitution or a statute but rather as a broadstatement of principles upon which the parties founded a nation state and agreed toestablish a system of government. The Treaty was written in English then translatedinto Maori. The slightly different wording of the two versions has caused somecontention. There is also debate over whether the Treaty granted Britain sovereigntyover New Zealand. In Canada, treaties provide a framework for Indigenous and non-Indigenous peoples toshare land, resources and power, whilst respecting and maintaining their differences. Treaties in Canada are constitutionally recognised agreements between Indigenouspeoples, the Crown (the British and later, Canadian governments) and often provincesand territories. These Treaties outline rights, obligations and benefits for each party. In Canada, treaties with Indigenous peoples refer to both historic treaties with FirstNations and modern treaties with Indigenous groups which are also known ascomprehensive land claim agreements. Treaties in Canada are protected under the1982 Constitution Act section 35 which states that ‘Aboriginal and treaty rights arehereby recognised and affirmed’. Treaties are also commemorated on Treaty Dayswhich Canadians celebrate in many provinces.

Treaties Elsewhere

NZ

CANADA

Treaties have defined the relationship between Native American Nations and theUnited States of America from the time of British settlement. Prior to independence,from 1533 to 1789, the administrators of British colonies treated with the NativeAmerican tribes as equal sovereigns, according them a status equivalent to that of thecolonial governments. The first Treaty between the US and an American First Nation was the 1788 'Treatywith the Delawares'. However in 1871, nearly 100 years of Treaty making ended whenthe House of Representatives ceased recognition of American First Nations asindependent sovereigns with whom the US could treat with. Treaties were to a largeextent used by the US to displace First Nations Americans from their lands andoftentimes, the US has not honoured the agreements contained within those Treaties.

USA

Treaties Elsewhere

Additional Online Resources

SBS, Explainer: What is a Treaty?

Agreements, Treaties and Negotiated Settlements Project

NITV, Waitangi Day – What does it mean and whyshould it matter to you?

Government of Canada, Treaties and agreements

Click to view resource online (if supported)

The Canadian Encyclopedia, Treaties with IndigenousPeoples in Canada

US National Archives, American Indian Treaties

The Uluru Statement from the Heart is the most recent call for self-determination fromAustralia’s First Nations Peoples. The bipartisan Referendum Council convened theFirst Nations National Constitutional Convention at Uluru – Australia’s ‘red heart’ – todiscuss constitutional reform and recognition in May 2017. This historic eventculminated in the Uluru Statement from the Heart. Makarrata is a Yolngu word that can be understood as meaning ‘the coming togetherafter a struggle’. It is through this concept of Makarrata that Aboriginal and TorresStrait Islander leaders from across Australia envisaged ‘a fair and truthful relationshipwith the people of Australia’ and a brighter future for First Nations based on theprinciples of justice and self-determination. A Makarrata Commission, proposed in theUluru Statement from the Heart would ‘supervise a process of agreement-makingbetween governments and First Nations and truth-telling about our history.’ ThroughMakarrata, it is hoped that Australia can finally settle its differences, renew itsconception of itself, and reconcile the relationship between First Nations and non-Indigenous Australians. The Turnbull Government after ‘careful consideration’ rejected the proposals set forthby the Uluru Statement and those endorsed by the Final Report of the ReferendumCouncil. The Morrison Government has promised to allocate $7.3 million to the comprehensive‘co-design’ of models to improve local and regional decision-making and options forconstitutional recognition.

Where are we up to?

“Our Aboriginal and Torres Strait Islandertribes were the first sovereign Nations ofthe Australian continent and its adjacentislands and possessed it under our ownlaws and customs… With substantiveconstitutional change and structural

reform, we believe this ancientsovereignty can shine through as a fullerexpression of Australia’s nationhood …We seek a Makarrata Commission to

supervise a process of agreement-makingbetween governments and First Nations

and truth-telling about our history”

2017 Uluru Statement from the Heart

NORTHERNTERRITORY

VICTORIA

The States and Territories

The Northern Territory Governmentrecognises that the First Nation Peoples ofthe NT never ceded sovereignty of theirlands, seas or waters and previously self-governed in accordance with theirtraditional laws and customs. The NT Government has committed tocommencing treaty discussions with FirstNations in the Territory through theBarunga Agreement (2018). The NTGovernment understands that there maybe more than one Treaty and more thanone Aboriginal group that is a party to thatTreaty (or treaties). A Treaty Commissioner (Professor MickDodson) has been appointed to consultwith Aboriginal people in the NT todevelop a framework for Treatynegotiations.

The Victorian Government recognises thatthe Aboriginal peoples of Victoria neverceded sovereignty and that Treaties arenecessary to address the wrongdoings ofthe past. Treaties are an opportunity toredefine the relationship betweenAboriginal and non-Aboriginal Victorians. The Treaty Advancement Commissioner(Jill Gallagher AO) is currently speakingwith Aboriginal peoples about theiraspirations in community gatherings acrossthe state. The role of the TreatyAdvancement Commissioner has not beento negotiate treaty but rather to maintainthe momentum of the treaty process. The Treaty Advancement Commissioner isalso responsible for establishing the FirstPeoples' Assembly of Victoria, whose roleis to lay down the 'ground rules' for Treatynegotiations. Victoria is responsible forAustralia’s first ever treaty law, Advancingthe Treaty Process with AboriginalVictorians Act 2018.

The South West Native Title Settlement(the Settlement) in Western Australia isthe largest native title settlement inAustralian history and is considered bymany as 'Australia's First Treaty'. TheSettlement is the resolution of Noongarnative title claims in the South West ofWA, encompassing approximately200,000 square kilometres of land andaffecting an estimated 30,000 Noongarpeople. The Settlement resolves native title claimsfor perpetuity in exchange for a packageof benefits including recognition throughan Act of Parliament, a perpetual NoongarBoodja Trust, Land Access to certaincrown lands for customary activities, theCo-operative and Joint management ofNational Parks and the South WestConservation Estate, and funds and landfor the development of a Noongar CulturalCentre. The Settlement enables the Noongarpeople to join together, manage and‘control their own destiny, and build a solidfuture for generations to come.’

In February 2018, the former SouthAustralian Government signed the ButheraAgreement with the Narungga nation, theFirst Peoples of the Yorke Peninsula. The Buthera Agreement is the firstsignificant step towards a state-basedTreaty in SA and was the culmination of ayear-long consultation process withAboriginal South Australians followed bydiscussions between the government andthree Aboriginal nations on Treaty. The Buthera Agreement is the result of theformer SA Labor Government workingtogether with the Narungga nation andprovides much needed resources to buildthe latter’s capacity to fully realise thebenefits of the agreement and havegreater input in key policy areas such asHealth, Justice and Education. However,the recently elected Marshall LiberalGovernment has decided not to pursueTreaty as a policy direction and Treatydiscussions have stopped.

WESTERNAUSTRALIA

SOUTHAUSTRALIA

The States and Territories

In 2018, the Australian Capital TerritoryMinister for Aboriginal and Torres StraitIslander Affair declared the ACTgovernment was open to talking Treatywith the First Nations of the Canberraregion. The Minister has spoken with communityleaders, including individual TraditionalOwners and members of the ACTAboriginal and Torres Strait Islander ElectedBody (ATSIEB) about whether a state-basedTreaty in the ACT should be pursued. The ACT Government acknowledges theNgunnawal people as traditional custodiansof the Canberra region and that the regioncontinues to hold cultural significance. The ACT Aboriginal and Torres StraitIslander Agreement 2019-2028 sets out thedirection of Aboriginal and Torres StraitIslander Affairs in the ACT over the nextten years. The Agreement is committed toself-determination as the guiding principlein achieving equitable outcomes forAboriginal and Torres Strait Islanderpeoples in the territory. Self determinationis recognised as an 'ongoing process ofchoice to ensure that Aboriginal and TorresStrait Islander communities are able to meettheir social, cultural and economic needs'.

AUSTRALIANCAPITAL TERRITORY

The States and Territories

In July 2019, the Queensland Governmentannounced it was commencing its journeytowards Treaties with the First Nations ofQueensland. The QLD Government signed the JointStatement of Commitment as part of theTracks to Treaty - Reframing therelationship with Aboriginal and TorresStrait Islander Queenslanders initiative. Theinitiative promotes and supports self-determination, truth-telling, local decision-making and better life outcomes for theFirst Nations Peoples of QLD. The QLD Government believes the processwill benefit all Queenslanders by furtheringreconciliation, ‘foster a shared pride inAboriginal and Torres Strait Islander cultureand help heal the wounds of the past.’

QUEENSLAND

On National Sorry Day 2019, the leader ofthe Tasmanian Greens reiterated calls forTreaty with the First Nations of Tasmania.The Tasmanian Premier has promised to‘reset the relationship’ with AboriginalTasmanians but to date, very little progresshas been made, particularly in regards toland returns and Treaty.

TASMANIA

Additional Online Resources - "Whereare we up to?"Click to view resource online (if supported)

Uphold & Recognise, Makarrata: Options for DiscussionNITV, Response to Referendum Council report suggestsa narrow path forward on Indigenous constitutionalreformABC News, Indigenous advisory body rejected by PM‘kick in the guts’ for advocates

ANTaR’s 2019 Federal Election Scorecard

ANTaR’s 2019 Federal Election Scorecard, Responsefrom Liberal National GovernmentANTaR 2019, ‘Budget Shows Government Still Doesn’tGet It’

The Hon. Ken Wyatt AM MP, Media Release: NAIDOCWeek 2019: Voice. Treaty. Truth. Let's Work TogetherFor A Shared Future

SBS News, Ken Wyatt lays out his strategy to bring anIndigenous voice to Australia’s parliament

Additional Resources - "The States andTerritories"

Victoria:Advancing the Treaty Process with Aboriginal VictoriansAct 2018

Native Title SA, Buthera Agreement

South Australia:The Guardian, ‘South Australia halts Indigenous treatytalks as premier says he has 'other priorities'

Australian Capital Territory:NITV News, ‘'Real outcomes' needed for clan groups tosupport any ACT treaty process’

New South Wales:Sydney Morning Herald, ‘About the future and the past’:NSW Labor to ink Treaty with Indigenous Australians

Labor 2019 Election Platform: ‘A Fair Go for FirstNations People’

Click to view resource online (if supported)

Aboriginal Victoria, 'Treaty Legislation'

Western Australia:Noongar People, 'Settlement Agreement'

Uluru Statement from the Heart

Northern Territory:Northern Territory Treaty Commission

NT Government news, Barunga Agreement 2018

In January 2018, the former New SouthWales Opposition Leader stated Laborwould negotiate a Treaty recognisingtraditional Indigenous ownership of NSW ifelected to government in 2019. It washoped that a Treaty would acknowledge thewrongs of the past, ‘put things right for thefuture’ and provide a ‘truthful andhonourable basis for our reconciliation withthe state’s first people.’ However, the current NSW Government, todate, has not expressed any intentionstowards advancing the Treaty process.

NEW SOUTHWALES

ACT Government, Agreement 2019-2028

ACT Aboriginal and Torres Strait Islander Agreement2019-2028

The States and Territories

Queensland:Queensland Government, Joint Statement 'Historicsigning of ‘Tracks to Treaty’ commitment'

Queensland Government, 'Path to Treaty'

Tasmania:Tasmanian Greens, Unfinished Business: Time to Treaty

ABC News, ‘Queensland Government announces‘conversation’ to formalise Indigenous treaty’

Treaty in Australia published by ANTaR Copyright 2019Find out more www.antar.org.au/treaty Contact ANTaR email: antar@antar.org.au phone: 02 9280 0060

“What Aboriginal people ask is that the modern world nowmakes the sacrifices necessary to give us a real future. To

relax its grip on us. To let us breathe, to let us be free of thedetermined control exerted on us to make us like you…

recognise us for who we are, and not who you want us tobe. Let us be who we are – Aboriginal people in a modern

world – and be proud of us.

Acknowledge that we have survived the worst that the pasthad thrown at us, and we are here with our songs, our

ceremonies, our land, our language and our people – our fullidentity. What a gift this is that we can give you, if you

choose to accept us in a meaningful way”

Referendum Council member, Galarrwuy Yunupingu in his essay ‘Rom Watangu’