In 1988, Prime Minister Bob Hawke promised to negotiate a treaty between the Australian government and Aboriginal people, on behalf of all Australians.
More than 30 years later, there is still no Treaty on the national level and debate continues over what should be done to effect an agreement between Indigenous and non-Indigenous Australians.
UTS Law’s Dr Harry Hobbs has amassed a body of research about the Treaty process here in Australia and internationally:
A Treaty is a special type of negotiated legal relationship that recognises an inherent right to sovereignty and acknowledges or establishes institutional arrangements to exercise some form of self-government.
In his latest co-authored research - with UNSW Law Dean, Professor George Williams - Dr Hobbs compares Canada and the US with the Australian experience.
Treaties in the US are administered Federally while treaties in Canada are reached with both the national and the provincial governments. In both countries, the practice of agreement making began in the early days of contact.
Dr Hobbs says this was not the case in Australia:
In Australia no treaties were signed at first contact, or in the early years of settlement, because there was no legal recognition that Indigenous communities were sovereign entities. Early colonial governments did not consider the interests of Aboriginal and Torres Strait Islander peoples, expecting that they would be exterminated by the progress of civilisation.
After years of Commonwealth inaction, Australian states and territories are now leading the way with the Noongar Agreement in Western Australia and treaty processes currently underway in Victoria, the Northern Territory, and Queensland.
But while the states can negotiate treaties, their effectiveness is limited without commitment to Constitutional change at the Federal level.
That’s why Dr Hobbs favours a comprehensive, unified, interlocking treaty process, supervised by a Makarrata* Commission.
The Federal Government has not committed to the Uluru Statement from the Heart's call for such a Commission, but has promised a referendum on constitutional recognition within the life of the current Parliament. Indigenous people have heard this before - In the words from Yothu Yindi’s hit song, ‘Treaty', they are still ‘dreaming of a brighter day.'
* A complex Yolngu word which describes a process of conflict resolution, peacemaking and justice.
Treaty-making in the Australian Federation, Melbourne University Law Review, Vol. 43, No. 1, 2019, Harry Hobbs and George Williams
The Noongar Settlement: Australia's First Treaty, (2018) 40 Sydney Law Review 1, Harry Hobbs and George Williams