BY HARRY HOBBS AND GEORGE WILLIAMS

Last month, the Victorian government introduced a bill into Parliament that would create a legislative basis for negotiating a treaty with Aboriginal people in the state. The bill would establish an Aboriginal representative body that would be empowered to determine a treaty negotiation framework and administer a self-determination fund, which would support Aboriginal Victorians in negotiations. Treaty processes are also underway in other states and territories. In September last year, the South Australian government commenced treaty negotiations with the Ngarrindjeri Nation. Two other Aboriginal nations, the Narungga and Adnyamathanha, have also been invited to the negotiating table—though it remains to be seen whether the newly elected Marshall government continues these negotiations. More recently, in the Northern Territory, the four Land Councils and the Territory Government have agreed to establish a working group to develop a memorandum of understanding that would provide a framework for future treaty discussions.

These movements coincide with and complement the national debate on constitutional recognition. At the First Nations Constitutional Convention at Uluru in May 2017, around 250 Aboriginal and Torres Strait Islander delegates called on the Commonwealth to establish a Makarrata Commission, which would ‘supervise a process of agreement-making between governments and First Nations’. Although the federal government rejected a proposal for a First Nations Voice, it has intimated that some form of agreement-making may still be on the table.

The emergent treaty negotiations at the state and territory level, as well as the Uluru Convention’s call for a Makarrata Commission, are momentous steps. Unlike the United States, Canada, and Aotearoa/New Zealand, no treaties were signed between Aboriginal and Torres Strait Islander peoples and the British Crown at first contact. This history is often used to argue that a modern treaty would amount to a radical, perhaps impossible, shift in Australia’s public law system.

In a new article for the Sydney Law Review however, we argue that a recent agreement – conducted outside an explicit treaty process – is Australia’s first treaty. This is significant, for it reveals that rather than treaties being novel, dangerous, or divisive instruments, they can be accommodated in Australia’s public law system with relative ease. All that is necessary is political will.

Simply calling an agreement a treaty does not make it so. A treaty must meet three conditions. In this post, we outline those conditions, which we draw from the modern treaties negotiated in Canada, and international instruments like the United Nations General Assembly’s Declaration on the Rights of Indigenous Peoples (UNDRIP).

We then explain how the South West Native Title Settlement, a negotiated agreement between the Noongar people and the Western Australian Government, meets these conditions. Under this treaty, the Noongar people have agreed to exchange native title rights for a comprehensive package of benefits including recognition of traditional ownership, land, a significant financial future fund and other commitments.

What is a treaty?

There are many examples of agreements between Indigenous peoples and governments, both in Australia and around the world. However, a treaty is a specific type of agreement.

First, it must recognise Indigenous peoples as a distinct political community. Indigenous communities in Australia have a long history operating as a distinct society, with a unique economic, religious and spiritual relationship to their land. Despite this, governments have often preferred to conceive Indigenous peoples as cultural or ethnic minorities. An important function of a treaty is to redress this by way of appropriate acknowledgement.

Second, a treaty is a political agreement, reached by way of negotiation. Negotiation is the appropriate process for resolving differences between Indigenous peoples and the State as it reduces the risk that the rights and interests of significant groups will be ignored and recognises that winner-take-all processes are unlikely to produce good outcomes. Furthermore, as negotiation eschews overly legalistic frameworks, it offers parties a ‘more flexible forum for working out acceptable arrangements’ (at 109), enabling relationships to be built on trust and communication. Of course, negotiations must be fair; they should be ‘undertaken in good faith’ with representatives freely chosen by Indigenous peoples through their own representative structures (at [46]).

Finally, both sides must accept a series of responsibilities so that the agreement can bind the parties in an ongoing relationship. This means each party must accept that, in the words of Lamer CJ of the Supreme Court of Canada, ‘we are all here to stay’ (at [186]).

Considering the diversity of Indigenous communities across the globe, it is impossible to be prescriptive in terms of what outcomes could be agreed to under any treaty. While the content of negotiated agreements will differ, however, a treaty must contain more than mere symbolic recognition; an inherent right to some level of sovereignty or self-government must be recognised and provided for.

The extent of this recognition is variable. It does not need to extend to granting formal law-making and law-applying powers. Rather, it must recognise or establish structures of culturally appropriate governance and means of decision-making and control that amount to at least a limited form of self-government. These outcomes are consistent with the UNDRIP, which provides that Indigenous peoples have the ‘right to autonomy or self-government’ in relation to ‘internal and local affairs’ (art 4), including the ability to wield greater control over land and resources, as well as authority to ensure cultural preservation and integrity.

The Noongar Settlement

The Noongar Settlement is the largest and ‘most comprehensive’ agreement to settle Aboriginal interests in land in Australian history. In exchange for a $1.3 billion settlement package covering around 200,000km2 and including agreement on rights relating to land, resources, governance, finance, and cultural heritage, the Noongar have agreed to the ‘full and final resolution of all native title claims’.

The settlement has its origins in a native title claim. Following several court decisions in the 2000s, both parties decided to pursue negotiation. The final agreement takes the form of six Indigenous Land Use Agreements (ILUAs). These were approved by the Noongar people at a series of meetings in early 2015. In 2017, however, those opposing the agreement were successful in preventing four of the ILUAs from being registered. Although the agreement was broadly supported, those opposing it were concerned about the prospect of finalising all current and future claimsSubsequent legislative amendment to the Native Title Act enabled the settlement to proceed. Applications to register the ILUAs have since been lodged, and the parties are waiting on a decision by the Native Title Registrar.

What does the settlement contain?

The Noongar Settlement is significant. Among other elements, it includes:

  • Recognition of the Noongar people

As part of the Agreement, the Western Australian Parliament enacted the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA). The first piece of legislation in Western Australia to include the Noongar language, the Act recognises the Noongar people as the traditional owners and occupiers of South West Western Australia, and their continuing relationship with country.

  • A significant transfer of land

Approximately 320,000 hectares of Crown land will be transferred into the Noongar Boodja Trust (‘NBT’) over five years (s 10). The NBT will function as a perpetual trust, upon which the Western Australia Government will make funding instalments of $50 million (indexed) yearly for 12 years.

  • Establishment and resourcing of governance institutions

The Agreement also establishes and finances Noongar governance institutions. Six Noongar Regional Corporations and one Central Services Corporation will be created, and will receive $10 million in funding support each year for 12 years. The Central Services Corporation is responsible for assisting and providing services to the Regional Corporations. As a centralised administrative body, it will act to maintain, protect and promote the culture, customs, traditions and language of the Noongar people. The Regional Corporations will have a similar role, but will also be responsible for managing the traditional land and waters within their regions, developing regional priorities and engaging with government and third-party stakeholders to further community interests and priorities.

Is the Noongar Settlement a Treaty?

There is common agreement that the Noongar Settlement is a milestone in the history of Western Australia. The then Minister for Aboriginal Affairs, Peter Collier, remarked that one of the Bills implementing the Agreement ‘will ultimately stand alone as a historic, overdue recognition of the Noongar people’, while then Deputy Opposition Leader, Roger Cook noted that the Agreement ‘is the single most important thing this government can do’. Similarly, writing for the Conversation, Professor Simon Young considered that the package ‘breaks new ground’.

In our view, the South West Native Title Settlement does more than this. The Settlement is Australia’s first treaty between Indigenous peoples and the State.

First, the agreement recognises the Noongar as both traditional owners of the land and as a distinct political community. Participants involved in the negotiation explicitly connected their aims to recognition of Noongar nationhood—a status recognised by the Western Australian Government. For example, upon notification that the Noongar people had voted to accept the Settlement, then Premier Colin Barnett issued a press release, noting that ‘break-through agreement’ was ‘a historic achievement in reconciliation’ and an ‘extraordinary act of self-determination by Aboriginal people…provid[ing] them with a real opportunity for independence’.

Second, the Settlement was agreed to via a respectful political negotiation, demonstrating a commitment to secure a just relationship between Indigenous peoples and the State. In recognising the Noongar nation, the Settlement emphasises the interconnectedness and interrelationship of Indigenous and non-Indigenous Australians in South West Western Australia. Repeatedly highlighted is the idea that the Agreement is ‘ultimately an investment in both the Noongar community and the shared future of the Western Australian community as a whole’, because both communities ‘walk together in this journey.’

Although Noongar nationhood is achieved subject to the overriding sovereignty of the Australian State, the treaty redefines the political relationship between Noongar and Western Australia, and achieves a just, equitable and sustainable settlement.

Third, the settlement contains more than mere symbolic recognition.

The Noongar are guaranteed a sizeable land base, non-exclusive rights to resources over an extended area, a large and sustained financial contribution from the State Government, and enhanced cultural heritage protection. Nonetheless, it is true that self-governance rights are not extensive under the Noongar Settlement. There is no scope (at present) for a Noongar government, and the Noongar people are not entitled to pass legislation.

However, these elements are not necessary to constitute a treaty; what is required is the establishment and financing of culturally appropriate governance institutions that amount to, at least, a limited form of self-government. In this regard, the Central Services Corporation and the six Noongar Regional Corporations will develop and implement culturally appropriate policies based on local and regional priorities. Although similar in form to Registered Native Title Bodies Corporate, their substantial funding and key position within the broader settlement highlight the more significant role they will play. These bodies formalise self-governance arrangements, and may lead to more extensive forms in the future.

Conclusion

The Noongar Treaty demonstrates that much of the debate over treaties is misplaced. Treaties are not dangerous or divisive, but can be achieved in a manner consistent with Australia’s existing public law system. As the Noongar Treaty reveals, key impediments appear to be political will and successful compromise between Indigenous peoples and the State. These challenges have also arisen in South Australia, where questions exist over the new State government’s commitment to the treaty process.

Nonetheless, the emerging negotiations at the state and territory level suggest that many more treaties may soon be concluded. Aboriginal and Torres Strait Islander people and negotiating parties should closely examine the specific terms of the Noongar Treaty. If the treaty emerges as a popular and fruitful settlement, it can provide the basis for further treaties with Aboriginal and Torres Strait Islander peoples. Importantly, it can do this even if the Federal government continues to refuse to progress the Uluru Statement’s aspirations.

 

Harry Hobbs is a PhD Candidate at the UNSW Faculty of Law. George Williams is the Dean, the Anthony Mason Professor and a Scientia Professor at UNSW Law.

Suggested citation:  Harry Hobbs and George Williams, ‘Australia’s First Treaty on AUSPUBLAW  (16 April 2018) <https://auspublaw.org/2018/04/australias-first-treaty/>