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Sovereignty was never ceded.

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Tracking Treaty

Blake Cansdale
Last edited: May 1, 2024

How are treaty negotiations progressing across Australia?

If you aren’t familiar with the business of treaty-making, or you’ve taken Treaty-101 but it was some time ago, you might like to start here. If you feel comfortable that you know what a treaty is, what they can do, what they can’t do, and how they are relevant in an Australian First Nations context, you might prefer to jump straight into our Tracking Treaty content below, where you will find a play by play of how treaty negotiations are progressing in your jurisdiction/s of interest. 

So what exactly is a treaty? Put quite simply, it is an agreement. Treaties can be understood as legally binding settlements or agreements involving two or more parties, nations, groups, organisations or interests.

In the context of treaty-making between Australian Governments and Australia’s First Nations Peoples, a major barrier to ‘talking treaty’ has historically been the language of treaty itself. This barrier remains in place to this day. For some, treaty entails ‘nation to nation’ agreements like those between independent sovereign States. However, this understanding has led others to dismiss treaty on the grounds that ‘a nation cannot make a treaty with itself’ – an argument built on false notions of ‘division’ that continues to be advanced in the wake of the Voice referendum. The more healthy view, and one shared widely by First Nations leaders in Australia, is that treaty-making must necessitate the sharing of power/authority between Nation States and First Nations Peoples. This redistribution of power (and invariably resources) will constitute a significant step towards reconciliation.

It is clear to many Indigenous Peoples that, before Indigenous Australia can participate in the Australian democratic project on just and equal terms, the unresolved issues of the colonial project and the psychological terra nullius of Australia’s public institutions must be finally dealt with.

Davis, Megan ‘Treaty, Yeah? The Utility of a Treaty to Advancing Reconciliation in Australia’ AltLawJl 32; (2006) 31(3) Alternative Law Journal 127

Many (dare I say most) First Nations Peoples believe that the way to achieve this is through treaty and the truth-telling that underpins the treaty-making process. In my humble opinion – albeit an opinion shared by many academics, constitutional lawyers and political experts – for an agreement to constitute a treaty, it must contain three essential conditions:

  1. The agreement must recognise that the Aboriginal or Torres Strait Islander nation that is party to the agreement is a polity in its own right. That is to say, the treaty-making process involves a recognition that what is occurring, is sovereign to sovereign negotiations;
  2. Following on condition one, the agreement must be reached by a fair process of negotiation between equal parties. A treaty must not be the product of mere consultation between parties and otherwise largely unilateral decision making by a dominant party;
  3. Finally, the agreement must “involve both sides committing to responsibilities, promises and principles that bind the parties in an ongoing relationship of mutual obligation and shared responsibility”.

Outside of setting the frame for political relations between Australian Governments and Australia’s First Nations Peoples, treaties can and often do speak to a wide range of socio-political, economic and cultural matters (e.g. First Nations reparations, formal apologies for past injustices, arrangements for the return of stolen lands, etc.)

Operating from the above conception of treaty-making, treaties can contribute to building a more sophisticated and genuine relationship between Nation States and First Nations Peoples. Whilst such reformed relations must be anchored in respect for the sovereignty/nationhood, self-determination and the role of First Nations Peoples as custodians of Country, they certainly allow for (arguably even enhance) the capacity and authority of Australian Governments to exercise effective control over what they perceive to be their sovereign lands. The key with treaty-making, at least in my view, is that it allows for the recognition that this sovereignty/authority can and often should be shared across multiple polities. 

Treaties move the focus of sovereignty away from the historically unwavering assertion of a singular hegemonic power; an approach based on dogmatic and dated 17th Century ideology. Instead, treaty-making offers an opportunity to reframe the notion of sovereignty, such that it is focused on establishing whatever political and jurisprudential frameworks will facilitate the highest degree of well-being and prosperity for the diverse peoples that reside within the treaty’s geographic bounds. Such is the case irrespective of whether and to what extent authority might be shared between the parties to the treaty. You might say that treaty-making moves us towards a ‘people-centric’ rather than ‘polity-centric’ view of sovereignty. Surely this is a good thing…

Unless you are a Constitutional Lawyer, an International Relations expert, or someone of that ilk (two things I most certainly am not), you can be forgiven for not knowing what to do with terms such as ‘sovereignty’ and ‘treaty’. The notion of sovereignty is inherently complex, that is before we even begin layering our understanding of sovereignty with equally complex (and still widely debated) conceptions of treaty-making. In some cases, alternative language such as ‘agreement making’ or ‘Makarrata’ – a Yolngu term meaning to come together after a struggle – are more expansive terms that are better able to articulate the possibilities and opportunities for treaty making. 

Since taking the ‘Indigenous Peoples and the Law’ elective during my B Law days at UNSW many years ago (shout-out to my rockstar lecturers at the time, Prof Megan Davis and Prof Sean Brennan), I have been periodically dipping in and out of consideration of these terms – as an academic, as a lawyer, as a First Nations man and as an Australian. Despite my moonlighting as someone that knows what he’s talking about on the topic, I can’t help but feel that I’m barely scratching the surface. But this is OK, at least it needs to be OK. Because if I’m still grappling with these concepts, how could the majority of Australians that haven’t shared the same educational and professional privileges as myself, possibly be expected to entertain the subject!? For me the key lies in civic engagement and broadly accessible and sustained education on foundational topics such sovereignty and treaty-making. This is a yarn for another day.

Now onto the business of tracking treaty negotiations across each Australian jurisdiction. Let’s see how much progress we’re making…

Blake Cansdale
ANTAR National Director

Blake is a proud Anaiwan man and the National Director of ANTAR. Dedicated to empowering First Nations communities, Blake has a background in legal practice with experience in public policy, lecturing, Aboriginal affairs, business management, Aboriginal land planning and development, land acquisition and land management.

He holds a Master of Public Policy & Management from Monash University and a Bachelor of Laws (LLB) / Bachelor Science (major psychology) from UNSW.

Prior to joining the team at ANTAR, Blake held Senior Executive roles within the Aboriginal Community Controlled Sector, namely as Chief Operating Officer at Tranby National Indigenous Adult Education & Training, and most recently as Chief Operating Officer at Darkinjung Local Aboriginal Land Council.