Treaty now or never? Concerns treaties will become 'political football' as Aboriginal advocates across the country call for action

There has been a recent shift in sentiment from some politicians towards Treaty negotiations. (ABC News: Hugh Sando)

How best to address inequality experienced by First Nations people is again front and centre for politicians, after a long post-Voice referendum hiatus.

One option popular with Indigenous folks in surveys and on the streets: state-based treaties, which until recently had secured bi-partisan support in many jurisdictions.

Since the Voice to Parliament proposition failed to pass, there has been a shift in sentiment from some politicians towards Treaty negotiations.

Liberal and National parties in Queensland and Victoria have recently backflipped on support for Treaty, saying the process is “divisive”, pointing to the failed referendum as a mandate to rescind support.

“Compensation” was also a deciding factor in Queensland, according to the former Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda.

“The horse has bolted,” he says of the Queensland opposition’s backflip.

The conflation of different issues has advocates concerned.

“It wasn’t a referendum about all things Aboriginal,” says Noongar man Keith Thomas.

“They’re probably all playing from the same playbook now, they’re desperate to get back into government … that includes turning Aboriginal affairs into a political football,” the CEO of the South Australian Native Title Services says.

At the federal level, months after the referendum, the Albanese government’s commitment to the Makarrata Commission, which would oversee the truth-telling and treaty process, has yet to really get started.

When questioned during the return to parliament on Tuesday about Treaty and truth-telling, the prime minister pointed to the work of states on Treaty: “The Commonwealth certainly is not in any negotiations on Treaty. Indeed, Treaty implies two sides negotiating and coming to an agreement.”

“I can’t understand why they’ve all of a sudden gone into hiding on Treaty,” says Senator Lidia Thorpe, a Gunnai, Gunditjmara and Djab Wurrung woman from Victoria.

While Senator Thorpe loudly called for Treaty instead of a Voice last year, she acknowledged community members are “wounded” post-referendum, but believes “the appetite is always there” for conversations on agreement-making.

What is Treaty?

Former Aboriginal and Torres Strait Islander Social Justice commissioner Mick Gooda explains in simplest terms a treaty is “an agreement between two sovereign peoples”.

When the First Fleet raised the flag in 1788 there were no individual agreements — or treaties — with the hundreds of First Nations groups across the continent.

“If people said we needed a treaty in 1788… the Eora people [of Sydney] didn’t have the right to sign my land away in Central Queensland, and as a matter of fact if they had signed a treaty a lot of people would be hating on them right now,” Mr Gooda explains.

“Treaty Yeah, Treaty Now,” the catchy Yothu Yindi song has been replayed for more than 30 years, and still, the lyrics remain as relevant today as they were decades ago.

The inspiration for the song arose in the bicentennial year of 1988. Then prime minister Bob Hawke promised a national treaty in two years in response to a hand-painted Barunga Statement after years of calls from Indigenous leaders.

Witiyana Marika, a founding member of the North-east Arnhem band, recites the call from their song Treaty from his home in Yirrkala: “Treaty Yeh, Treaty Ma (now).”

“I thought it would happen in 88, but it has taken a long time from 88 up until now,” Marika laments.

In 2017 the call was formalised when Aboriginal and Torres Strait Islander leaders through the Uluṟu Statement from the Heart asked for: “voice, treaty, truth”.

“Makarrata is the culmination of our agenda: the coming together after a struggle. We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.”

Makarrata comes from Marika’s Yolŋu language.

“Makarrata is to reconcile and to pay back for the damage that has been done,” the Rirratjingu elder explains.

Marika believes a national treaty would “bring unity for balanda — the non-Aboriginals and for the First Nations”.

“To be recognised for who we are and where we are. The soil already has a law, before Captain Phillip arrived and (created) all the boundaries.”

The Albanese government committed to the Uluru Statement’s call for a Makarrata Commission as a “priority”, budgeting $5.8 million to commence work on it in 2022.

But today the National Indigenous Australians Agency was vague about the work it was doing, in a statement saying the government is taking “the time to listen to Aboriginal and Torres Strait Islander people”.

While the agency was working on “understanding progress on truth-telling and treaty in the states, territories and overseas”.

So where are the calls for Treaty across the country now?

Across states and territories, there are various stages of progress toward Treaty.

Queensland

In May 2023, there was bipartisan support for the law to set up a First Nations Treaty Institute to help establish the treaty framework, as well as the Truth Telling and Healing Inquiry to hear about the impacts of colonisation.

Just days after the referendum the Queensland state-opposition pulled its support for the $300 million Path to Treaty.

David Crisafulli, the opposition leader, said they would repeal the legislation if elected to government this October, claiming the “Path to Treaty will only create further division”.

“You know if they reversed their decision once, they can reverse it again, I’m not letting it deter me from pursuing treaty and truth-telling in Queensland,” Mr Gooda says.

The co-chair of the Interim Truth and Treaty body, Mr Gooda believes financial considerations lie at the heart of the matter.

“He (the opposition leader) told me he was not happy with people talking about compensation for colonisation,” but Mr Gooda says he reminded Mr Crisafulli that if the government didn’t agree on compensation it wouldn’t be included.

The Queensland Minister for Aboriginal and Torres Strait Islander Partnerships, Craig Crawford, in an interview with The Australian forecast treaties could cost hundreds of millions, based on New Zealand’s experience.

LNP member and former Brisbane lord mayor Sallyanne Atkinson points to this for the change of position: “It was really not so much a change of heart, as it is a change of head.”

Ms Atkinson, who has been part of advancing the treaty process, says “we have to acknowledge, honestly, what went on in the past”.

But she says Australians need to have “the difficult conversations” even if it comes across as “unkind”.

“Frankly, I don’t understand the point of reparations,” she told the ABC, “we have to say why and what, and what for and what would be used for”.

“What difference is it going to make? To give a certain group of people $1 million, because, you know, their land was taken from them,” the Interim Truth and Treaty Body member said.

“They want better education, better health, all those things, not necessarily cash handouts.”

Mr Gooda says you can do both — compensation for the “wrongs of the past” such as reparations for members of the Stolen Generations, as well as to improve housing and education services.

Membership to the two bodies, the Institute and the inquiry, that will help shape state-based treaty negotiations with First Peoples will be announced later in February.

Victoria

Victoria has a similar story to Queensland.

In the days leading up to January 26 this year, the LNP opposition declared it no longer supported Treaty, ending years of bipartisanship.

Victorian National Leader and Shadow Minister for Aboriginal Affairs, Peter Walsh, said cultural heritage laws needed improvement before they would support Treaty.

He added later: “What is treaty?… lots of people would say how can you have a treaty with yourself because we are all Australians.”

Opposition Leader John Pesutto supported the reverse in policy saying: “When it comes to the treaty itself, apart from the concerns we’ve had about secrecy of the process… we are also concerned about whether it has the tendency to make people feel divided from one another.

“I was very concerned last year to see how traumatic the debate around the Voice was for many Victorians… I don’t want Victorians to go through that again,” he told a press conference.

While the news came as a “surprise” to First Peoples’ Assembly of Victoria co-chair Reuben Berg, he says they will progress Treaty no matter the Liberal or Nationals positions.

“It was a surprise to have that specific announcement, but you could sense the changing tides nationally,” he says.

The Gunditjmara man says even with the future uncertain, the Treaty Authority will begin the first treaty negotiations by the end of the year, aiming for several interim agreements in the next few years, that would form larger treaties down the track.

Mr Berg envisages Treaties improving First Peoples’ decision-making, providing ways to provide advice and keeping the government accountable.

New South Wales

In the state where the first British settlement began, New South Wales, progress toward Treaty is slower.

The Labor government has committed to a year’s consultation with Aboriginal communities but they are yet to appoint the treaty commissioners to start that process.

A spokesperson for the Minister for Aboriginal Affairs and Treaty, David Harris, said this consultation will ask “Aboriginal communities across NSW if Treaty or an agreement-making process would be desirable, and what this process should look like”.

In response, an opposition leader spokesperson told the ABC that they would “await any outcome of this process” before making a call on Treaty.

South Australia

South Australia’s Treaty discussions first began in 2016 but stalled with a change in government.

Despite the return to a Labor government treaty has taken a back seat to the legislated state Voice to Parliament, with the first elections of members taking place in March.

But the Uluru Statement from the Heart’s “voice, treaty, truth” doesn’t have the backing of the opposition.

“We do not support these approaches to Aboriginal affairs and we believe our party’s stance represents the views of a significant majority of South Australians,” Opposition Leader David Speirs said in a statement.

“We believe that treaty and truth are divisive mechanisms which cause disruption and angst in communities and push people apart based on race, rather than bring people together.”

South Australia recorded the second-highest No vote in the referendum.

“Symbolism and systems of government based on race will not move the dial on the things Aboriginal people need the most,” the opposition leader added.

The South Australian Native Title Services CEO, Keith Thomas, says these comments “are a real worry”.

“It’s like they’re desperate to try anything now to garner what they see as possible support from the no vote from the national referendum.”

He believes his organisation would play a supportive role for traditional owners in future treaty negotiations and while he says not all Traditional Owners were happy with earlier treaty talks, it was a start.

Treaty is “recognition that historically Aboriginal people were treated differently, which I think was quite divisive by early governments, and that by removing people from country, putting people in missions and reserves, etc., all of those types of policies which impacted significantly on Aboriginal people and really are a part of where Aboriginal people find themselves today.”

Northern Territory

Like Queensland, the Northern Territory has an election later this year and Treaty is on the agenda.

While the NT government has a commitment to revive the Treaty process after advocates raised concerns about the pace of the process, the opposition plans to scrap it if it gets into power.

A three-year Treaty Commission led consultations and delivered a report into how a treaty agreement could be reached, but at the end of 2022, the government announced it would have an 18-month consultation process to “test” the Commission’s report’s suggestions.

“We did make the decision to slow down during the national referendum around the Voice to Parliament,” Aboriginal Affairs Minister Chansey Paech told the ABC’s Matt Garrick.

“As an outcome of that, we are now proceeding with the revival of the Treaty Working Group with the land councils and the community, around navigating and putting the pathway forward for treaty here in the Northern Territory.”

Symposiums will be held in April.

The CLP rejected the move to Treaty in the wake of the referendum defeat and is instead proposing to change local government structures, saying Treaty is being “weaponised” as an election issue.

“The CLP is focused on practical policies that empower Aboriginal Territorians … instead of pursuing Treaty which as a concept was emphatically rejected by the Australian people as part of the Voice Referendum with Voice, Treaty, Truth,” leader of the opposition Lia Finocchiaro said in a statement.

Australian Capital Territory

The ACT was the only jurisdiction that voted yes to the referendum.

The government began their treaty process in 2018, committing $20 million to a Healing and Reconciliation Fund for commitments to close the gap and to support traditional custodians on Treaty.

In 2022 preliminary Treaty talks began with the Ngunnawal people, but the government acknowledged its early consultations “did not engage as broadly” as they “intended”.

While it did provide steps for a pathway and identified calls for reparation, participation and representation, the barriers to the process included cross-border conversations with First Nations people whom the ACT acknowledged as Traditional Owners of their jurisdiction.

The following year, in response to a court challenge, the ACT introduced an interim Indigenous Protocol broadening how it recognised other people with connection to the lands.

Aboriginal and Torres Strait Islander Affairs Minister Rachel Stephen-Smith says they are in the early stages of Treaty development.

“Like other jurisdictions, the Aboriginal and Torres Strait Islander community in the ACT have differing opinions and experiences,” she said in a statement.

“We acknowledge that everyone who potentially has a stake in Treaty must be engaged in the process and that this will take time.”

Tasmania

Tasmania is the only Liberal government in office and says Treaty discussions are continuing.

“The Tasmanian Liberal government remains committed to progressing Truth-telling and Treaty in true partnership with Tasmanian Aboriginal people, the Minister for Aboriginal Affairs Roger Jaensch said in a statement.

Like the ACT there is also division among the Tasmanian Aboriginal community when it comes to Treaty development.

A government-appointed advisory group was announced in 2022 to consult on Treaty across the state, which the government says holds regular meetings to engage with members of the Aboriginal community.

“The government is not setting a time frame or predetermined outcome for this critical work – these matters will be determined by the group to ensure this process is truly Aboriginal-led.”

Director of Aboriginal Legal Service and melythina tiakana warrana Aboriginal Corporation chair Nick Cameron is on that advisory board.

He says the body will advise the government on paths to Treaty that have been achieved in other jurisdictions and then they will propose a formal consultation process to engage with the broader Aboriginal community.

“We have a lot of catch-up work to do (compared to other states)” Mr Cameron says, but he says they will “shortly” advise government on the first stage of that process.

“The minister and the premier have indicated to the advisory committee that it is very committed to this process and I certainly get no indication that that will change.”

Rodney Gibbins leads tuylupa tunapri, which he describes as being “elected by community members”.

Mr Gibbins, who was a vocal opponent to Voice before Treaty, has been critical that the advisory group was appointed by government but is considering an invitation to speak with them.

“Treaty and truth-telling must be organised and formatted through the Aboriginal community with support from the government, not direction from the government and not controlled by the government, which is happening now,” Mr Gibbins says.

His group has put forward a draft Treaty bill that has been provided to the advisory group for consideration, but Mr Gibbins says they wanted advice from the government on their proposal.

Mr Cameron responded to Mr Gibbins’ criticisms, saying that “we are there not representing the government, we are there to represent our communities across Tasmania”.

Western Australia

Meanwhile, Western Australia’s Noongar Settlement, which started in 2021 and covers the south-west corner of the state, is widely interpreted as Australia’s first Treaty with First Nations peoples.

The WA government says it isn’t doing treaty negotiations but is focused on “resolving Native Title matters by agreement”, which it says is “genuine, culturally appropriate and enduring partnerships between the WA Government and Traditional Owner”.

The $1.3 billion Noongar Settlement, which took years to negotiate, is a “package of benefits” that includes recognition through law, the creation of a Trust and Corporations, land use agreements, and heritage partnerships.

A WA government spokesperson added; “The WA government has also finalised three other full and final native title settlement agreements, being the Yamatji Nation Agreement, the Tjiwarl Palyakuwa (Agreement) and the Gibson Desert (Lurrtjurrlulu Palakitjalu) Settlement Agreement.”

South West Aboriginal Land and Sea Council chair Dennis Eggington doesn’t consider this a Treaty – that is still to come he says.

“I have heard people refer to it as being akin to a treaty, so I guess if it is a kin, it would probably be the grandchildren that goes towards the Treaty process.”

He said the land use agreement helps set them up for self-governance to be able to negotiate a Treaty.

“It will come because once we get our sovereign government in place, then the Noongar Nation will exert its sovereignty and something will have to be done about it. And that will be the Treaty process.”