It’s the last ex-British colony to not ratify a treaty with its First Nations people, but that may be changing.

Less than three centuries ago, the British “discovered” modern-day Australia, declaring it “terra nullius” – no one’s land.

It didn’t matter that an estimated 750,000 people lived across the island in some 400 distinct nations having arrived at least 50,000 years prior.

While Australian governments have since acknowledged the “catastrophic outcomes” – massacres, cultural alienation, and mass displacement – these people would face as a result of European settlement, a growing chorus of their descendants, including Gunnai-Gunditjmara woman Lidia Thorpe, have called for governments to redress Australia’s founding myth as a matter of urgency. They want a treaty.

“Treaty is [an agreement] between two sovereigns and to be asking the government to at least acknowledge that Aboriginal people … maintain their sovereignty [supreme authority], I don’t think that’s too much to ask,” says Thorpe, a Greens member of parliament in Victoria state.

“You know there’s this tokenistic gesture all the time to blackfellas in this country. If you want true reconciliation and true healing then let’s be real about it and stop these tokenistic gestures.”

Indeed, a treaty was the only thing indigenous leaders from Australia’s Yolngu nation brought up with Prince Charles on his most recent visit.

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“We have many difficulties with the Australian governments because they do not recognise our sovereignty. We are the only indigenous people of a Commonwealth country that does not have the respect or dignity of a treaty with our people,” they told him.

It seems non-indigenous Australians may finally be listening.

In June, the first tentative steps towards a treaty were legislated to much jubilation in the southeastern state of Victoria.

What is a treaty?

A treaty – defined as an “international agreement concluded between two states” in 1969’s Vienna Convention on the Law of Treaties – would require the government to legitimise Aboriginal nations as separate to the nation of Australia. From there, they must negotiate decisions that affect them as equals and on equal terms.

Associate Professor Dominic O’Sullivan, whose work centres on indigenous governance, says unlike neighbouring New Zealand, treaties were never a part of Australia’s settler history.

Gunnai-Gunditjmara MP Lidia Thorpe was part of the negotiations for new legislation [John Englart/Flickr]

“Terra nullius was used to justify the British claim to sovereignty.

“Britain couldn’t identify an organised political or social order among the indigenous population, and under international law, these were required for a people to hold sovereignty,” O’Sullivan says.

“One could argue that it suited [the colony’s first Governor] Philip not to look too hard.”

Treaties are seen by many as a step towards self-determination for Australia’s First Nations people who “once they became a significant minority of the settler population had very little political voice”.

“While the treaty idea has been around a long time, it has been difficult for its advocates to gain the necessary political support,” says O’Sullivan.

Indigenous people have long resisted the colonisation of their land [David Gray/Reuters]





Notwithstanding the moral argument, the Victorian government has admitted that empowering communities to run their own affairs creates positive outcomes.

Its recent legislation cites longitudinal Harvard research showing that “when native nations make their own decisions about what development approaches to take, they consistently outperform external decision-makers on matters as diverse as governmental form, natural resource management, economic development, healthcare, and social service provision”.

“Our people are really struggling out there and you’ve gotta keep fighting for the betterment of Aboriginal people,” Thorpe says.

The new laws say negotiated treaties “could” include recognising wrongs against Aboriginal communities, acknowledging their unique position, official apologies, reconciliation, truth-telling, autonomy and funding for Aboriginal communities.

They’re also deliberately vague, refusing to stipulate any “set form for what a treaty with indigenous peoples should contain”. It’s hoped this will abdicate decisions to the formal negotiation process, which could take many years.

The provision of funding for indigenous leaders throughout the negotiation process is another centrepiece of the legislation. It’s hoped the money will “ensure Aboriginal Victorians have equal standing with the state in treaty negotiations”.

Whether it’s enough to redress the historical power imbalance, however, remains to be seen.

“Many of the historic Canadian treaties were signed under duress and were incredibly one-sided in favour of the British Crown,” O’Sullivan says.

Treaties are seen by many as a step towards self-determination for Australia’s First Nations people [Will Burgess/Reuters]

“Modern Canadian treaties have been negotiated in a more measured spirit where indigenous nations have had legal representation, a clear sense of what colonialism means and how it might be mitigated. They have provided significant economic benefits and important restorations of political authority, though also requiring compromises.”

O’Sullivan adds it’s also important to remember “indigenous Australia is not and never has been a single homogenous political entity”.

“This is why it is not yet clear in Victoria whether there will be a single treaty or a series of treaties with each indigenous nation as has been the case in Canada for example,” he says.

Vexed questions as to how negotiations represent those displaced from their traditional kin by colonial forces remain unresolved.

‘Quite fearful’

Thorpe says there’s also a lot of misunderstanding about treaties, especially in the non-indigenous community.

The first treaty legislation passed in the state of Victoria in June [David Gray/Reuters] [Reuters]

“Non-aboriginal people, particularly non-aboriginal elders, are quite fearful of treaty because they don’t understand. I’ve had non-aboriginal elders come into my office and tell me about some of their fears and I’ve been able to sit down and have a cup of tea and go through that, and they’ve walked out saying ‘oh, this is great,'” says Thorpe.

It’s hoped by many that if the process is successful in Victoria, it may form the basis for treaties across the country, which could then build towards some form of national agreement with the federal government.

Obstacles remain, however, on a national level. The current federal government has not addressed the call for an indigenous process similar to a treaty, makarrata, which after two years of consultation was presented in an open letter, the Uluru Statement of the Heart.

“[Prime Minister] Turnbull’s government has been completely inactive in this space and really quite offensive I think, particularly on the Uluru Statement,” says Victorian Ged Kearney, whose opposition party supports Makaratta.

But Thorpe insists that communities shouldn’t stay idle in the absence of government support.

“I don’t think we have to wait for governments to make a decision on treaty. And if you look at what treaty is about, it’s about coming together and negotiating an outcome.

“Let’s talk about what happened here. Let’s make sure all our children grow up and know what happened in this country,” she says. “Let’s learn about what happened so that we’re all proud of where we come from and that we’re all connected. Because that’s the only thing that’s going to actually connect us, is the people.”



