Treaty: Yeah, Nah, Maybe

Cross-posted from The Summit.

It was surprising (at least to me) that there wasn’t more discussion at the NT Governance Summit surrounding the question of a possible treaty between Aboriginal Territorians and the Northern Territory Government. It seemed as if most of the current and former politicians and politically engaged Territorians in attendance regarded the subject as one from cloud cuckoo land, not a fit topic for serious political debate by mature adults.

It’s certainly true that until the last year or so the question of a treaty was one mostly discussed by lefties and dreamers. Prime Minister Bob Hawke raised it as a serious question in 1990 but dropped it like a hot potato when a couple of influential State Premiers objected strongly. Not long after the High Court’s Mabo decision was handed down and treaty talk just dropped off the public radar. The issue hasn’t surfaced again seriously until very recently.

Rev Dr Wankal (Djiṉiyiṉi) Gondarra OAM addresses a meeting of Yolngu Nations Assembly

Indeed as recently as 2015 in a speech strongly advocating a treaty, Natalie Cromb observed:

Whilst I advocate for treaty, I am not flippant in thinking that getting a treaty is going to be easy, because it is the least palatable option for governments as it holds them to a set of obligations that they ordinarily would not live up to.

Yet the current state of play is that the governments of both Victoria and South Australia are now negotiating seriously with their Indigenous citizens with a view to concluding a treaty, and new Northern Territory Labor Chief Minister Michael Gunner has announced that he likewise will be negotiating towards a treaty (or at least “listening”).

This article by Harry Hobbs puts the new state-based treaty movement in context.

It appears that the expressed concerns of many Indigenous people, that the proposed Recognition Referendum is at best a minimalist response to demands for proper recognition of Indigenous people and their rights, have led some more enlightened state governments to revisit the idea of a treaty. Prominent Indigenous legal academic Megan Davis recently observed:

The reinvigorated treaty movement underscores the contested nature of recognition and the rejection of minimalist recognition. In the most obvious example, the state of Victoria has become the first Crown entity since 1788 willing to enter into a treaty process with Aboriginal people. According to Emeritus Professor Cheryl Saunders, a world-renowned expert in constitutional reform and design, “the idea of a state-based treaty bubbling up from the grassroots” is a good one, in part because it “probably puts a bit of a break on the idea that national constitutional recognition can be purely symbolic”.

For Northern Territory Chief Minister Gunner the imperative to negotiate seriously towards a treaty (not just “listen”) is much more pressing than for the governments of Victoria or South Australia. Not only did Independent MLA Mark Yingiya Guyula campaign strongly on the treaty issue in defeating Labor’s Deputy Leader Lynn Walker for the Legislative Assembly seat of Nhulunbuy, as Gunner acknowledged in his treaty “listening” announcement. More importantly, the previous Henderson Labor government was voted out of office in 2012 almost wholly as a result of Aboriginal anger at what was widely seen as a betrayal of Indigenous rights and interests perpetrated by:

  1. imposing a “super shires” local government amalgamation scheme which stripped Aboriginal communities of their rights to govern themselves; and
  2. adopting the role of willing tool of the federal government in imposing the Howard Intervention/Emergency Response on NT Aboriginal communities, a draconian series of measures which almost completely removed the capacity of Aboriginal Territorians to manage their own affairs and communities for a period of five years.

That anger hasn’t disappeared since 2012, it’s just that Aboriginal Territorians discovered like the rest of us that the Giles CLP government was even worse. Moreover, a succession of Aboriginal MLAs of both parties((Malandirri McCarthy, Marion Scrymgour, Alison Anderson, Larisa Lee and Francis Xavier Kurrupu)) have repeatedly demonstrated a willingness to cross the floor of Parliament or even leave their respective parties and sit on the crossbenches where they believe their party has failed to adequately protect Aboriginal rights and interests.  That was the principal reason why the Giles government went from a comfortable parliamentary majority of 16 to a minority government of just 12 MLAs in the space of just three years.

If Michael Gunner is smart (and I think he is) he already realises that he will need to do much more than merely “listen” to Aboriginal aspirations for a treaty. As Natalie Cromb argues:

A fair go cannot be achieved without a Treaty.

A Treaty would be the basis upon which the sovereign Indigenous people of Australia and the Government could negotiate the terms of rights to land, minerals and resources and the self-governing of communities. It would be a binding agreement that would have sanctions to deter breaches of the terms of the treaty.

The events of the last decade have demonstrated to Aboriginal Territorians that they cannot rely on any political party or any level of government necessarily to protect their rights and interests. Only legally enforceable rights can achieve that. As Yothu Yindi memorably put it: “But promises can disappear, just like writing in the sand”.  The song became something of an irritating earworm when it was a smash hit in 1990 and played on high rotation.  But unlike most pop songs its lyrics are profound and worth reading and listening to afresh.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Moz of Yarramulla
Moz of Yarramulla
7 years ago

But look at the complete mess just one treaty has made in NZ… they don’t have a constitution, their bill of rights is purely advisory, and the bloody Maori keep going back to court every time the government reneges on its obligations. 150 years of treaty and they still haven’t sorted that out.

It’s important that both sides recognise that consent has to be able to be withheld to be genuine. We whiteys can offer a treaty, but if we make “them” sign it there’s no point. Likewise, politicians having a ceremony that a significant minority of their subjects don’t accept isn’t going to work. You’re going to need someone more like Bob Brown or Gough Whitlam than Malformed Turncoat or Blob Sharten to drive it and you’ll probably have to wait until that person dies before their legacy is widely accepted.

And Maori are much more one people than Aboriginal Australians are… “united by similar oppression” doesn’t count. So there will likely be a Koori treaty, a Murri Treaty, etc etc… if we’re lucky. A Wiradjuri Treaty can’t be out of the question.

In other words, it’s about money and pride. It’s going to be expensive. Politicians need to be willing to take an explicitly anti-Howard position and say “yes, I am responsible, I , we, screwed you over and that was wrong. We owe you, and we have to start by giving back what was stolen”. It’s going to take a long time, and it’s not something that can be done by sending in the military to enforce laws made against Australian citizens.

Like any long-term commitment, it has to be tripartisan[1] if not unanimous. That’s what actually makes Te Tiriti O Waitangi work – not even the most far-out looney racist party wants to abandon it:

While the Treaty of Waitangi is a
constitutionally significant document, it is
but a part of New Zealand’s rich
constitutional inheritance. While the Treaty
of Waitangi occupies an important place …
and in ACT’s view should be restrained.

I remind you that that is the explicitly racist anti-Maori party official position on the Treaty. The ones who in Australia would be arguing that genocide is the proper solution. ACT have taken it off their website, probably because they don’t have enough MPs to have policies any more… there’s just no political support for that position.

[1] how many parties do we actually have in government? Is the “I will never lead a coalition government” Coalition one or two or three parties?

Moz of Yarramulla
Moz of Yarramulla
7 years ago

Sorry, I should have said: I support treaties with first nations, and I’m ashamed that Australia doesn’t have them. I want to see one and I’ll continue voting with that in mind ( or even better … although the Science Party desire to see 40M+ people in Australia is IMO looney ->

(Terrifyingly, ALA seems genuinely committed to genocide but hopefully they’re just stupid: “We believe the only way to overcome disadvantages and racism in our society is to eliminate what divides us… ‘affirmative action’ is another word for institutionalised racism and apartheid.” -> 4. Real Reconciliation)

Moz of Yarramulla
Moz of Yarramulla
7 years ago
Reply to  Ken Parish

Ken, I think that NT is the most likely place to *want* a treaty, and good on you all for trying (and best wishes) but I fear that Canberra will decide they have to step in and prevent or neuter one (euthanasia, same-sex marriage, Ranger/Kakadu). Having been a tourist ever so briefly in the area I did note the contrast between WA “we just negotiate to get what we can before the mining companies take what they want” and the stronger NT tribal areas, but wasn’t aware that it was quite as straightforward as the land rights act apparently makes it. Also, the Tino Rangatiratanga (absolute sovereignty) flag is widely recognised by Aboriginal Australians, which somewhat surprised me at first (note that the controversy over the term produced the flag, not the other way round).

I’ve had experience on the underside, in Aotearoa being on the conservation side of a Maori-greenie-government agreement/ conflict over joint management of conservation land. It worked, and it’s still working 20 years later, but it was challenging at times. It’s interesting to read the conversation today about black-green alliances which notes similar joys and tensions.

Very glad to hear that people are coming around to seeing the need for one. 40 years of land rights and now they see… it’s a good argument for land rights. Kia kaha. He waka eke noa (stand strong, we are all in this together).

Philip Clark
Philip Clark
7 years ago

Your a Muppet Moz and have no idea what your talking about. United by oppression, what the hell does that mean. A complete mess, well maybe the British should have done a better job of creating the treaty in the first place rather than sending a half dead Governor to ratify a half witted missionaries attempt to create a bastardised English translation of a native language. I am Maori, Aotearoa is my land now and for all time so get used to the “bloody Maori’s” at the courts because we are here to stay.

7 years ago

It’s worth having at the British Columbia Treaty Commission. Unlike the rest of Canada, the province negotiated barely any treaties before 1990. Since then Canada, British Columbia and a majority of first nations in BC have committed themselves to treaty negotiations. The diversity of first nations in BC makes their model such more like ours than New Zealand’s,


[…] is a link to a companion article to Treaty: Yeah, Nah, Maybe which I cross-posted here at Troppo from The Summit a week […]

R. N. England
R. N. England
7 years ago

Keeping written promises made according to appropriate rites is European bourgeois culture; actually its foundation. When feudal lords made treaties, decision to keep to them or break them was made entirely according to what they judged was in their long-term interest.

By all means let people of European bourgeois culture be held, come what may, to promises they make as to how they treat people from other cultures. If you are going to demand that those others keep such promises too, then have the honesty to say that you are forcing an alien culture on them.

Phil Clark
Phil Clark
7 years ago
Reply to  R. N. England

This is an eloquent and wise statement the merits of which are self evident and right.

We are a passionate people but not unjust and my comments do not reflect this, they were made in haste and hope those that read this will understand.

Thank you R.N.England