A treaty between Indigenous and non-Indigenous Australians has been a continuing issue both because of the failure of the modern Australian state to recognise and respect the sovereignty of Aboriginal nations and because of the continuing failure to protect the rights of Aboriginal people.

The recognition of prior ownership and sovereignty – and the rights and interests that flow from that – are part of the symbolic importance of an agreement between Aboriginal and non-Aboriginal Australians, the potential for a treaty to protect the rights of Aboriginal people ensures that it has practical and meaningful outcomes for Aboriginal people. Particularly...

My paper is written from recent personal experience, and though there is dissatisfaction in my reflections on that experience, I should not want to detract from the utility of other papers in this volume. The story that I tell is merely cautionary of the perils of agreements reached where the parties involved have widely different power bases. Which is not to say that agreements or treaties will only ever hold between those who are equals in numbers or wealth.

When I contemplate the success (certainly in recent years) of the Treaty of Waitangi in New Zealand, I am confronted with...

The most complex projects facing formerly colonial nation-states may be their attempts to create new and lasting arrangements between descendants of Indigenous and settler peoples which meet all their aspirations and needs. Many advocates focus on a constitutional or at least a legislative process by which to reach such arrangements, most commonly called treaties.

In this paper, I examine what some think is the most systematic and comprehensive post-colonial process ever devised: the British Columbia treaty process. I describe the process variously, using the figure of national encounters, in order to draw attention to the most misunderstood aspect of treaty-making....

The year is 1980: Malcolm Fraser’s Coalition government is in power. Perhaps without clearly realising it, Australians are nearing the end of a period of bipartisan political agreement on Indigenous issues and a shared faith in the ability of Indigenous people to rescue themselves from what they have suffered. The Northern Territory Land Rights Act,¹ begun by Whitlam and completed in modified form by Fraser, is the most obvious achievement, but there are others. The Department of Aboriginal Affairs, in the minds of more radical thinkers like Departmental Secretary Tony Ayers and Minister Fred Chaney, is intended within a few...

Let me first make two points about the history of the rights of Indigenous people in this country.

First, Indigenous peoples’ struggle for recognition of their human rights remains to a large extent unfulfilled. Consequently, the struggle is not, and has never been, well reflected in Australian law. Second, human rights continue to be poorly and rather patchily implemented in our legal system. A focus on human rights in Australian law would therefore leave us missing at least half the story of the struggle for recognition by Indigenous peoples in this country.

Accordingly, I intend to provide an overview of...

The contemporary project of creating a treaty within Australia, yet with international standing, to recognise Indigenous peoples as original owners of this land has grown in significance in the last three decades, since it was raised in a modern political context by Jack Davis, then President of the Western Australian Aboriginal Association. Davis had sent a pamphlet to the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI) which included a new proposal about the need for a treaty to be signed by leaders of European and Aboriginal communities. At that time Jack Horner was the FCAATSI...

On 26 April 1979, Dr HC Coombs called together a number of friends and colleagues in Canberra to discuss a new approach to the public debate about Indigenous affairs. Five months earlier, he had circulated a memo in which he observed a faltering in the pace of reform in Aboriginal affairs. What could he and his friends do to sustain and to entrench the reforms initiated in the 1970s? One of those friends, Judith Wright, later recalled that they agreed to form the ‘Aboriginal Treaty Committee, whose objectives would include:

the establishment of exclusive Commonwealth responsibility for all Aboriginal matters...

It is my first duty today to acknowledge the Nyungar people on whose land we gather today. I acknowledge, and wish to express my deep appreciation to all the Aboriginal communities of this region, and also all the people from the various communities represented here today – local, national and international. I pay homage to their Ancestors and to all their living Elders and associated kin. I also extend greetings and good wishes to all non-Aboriginal and non-Indigenous people present here today and to all those who support the ideals of fairness and justice, for all.

My second duty today...

My own traditional understanding of ownership is based on more than a symbolic gesture that unfortunately many now use like a cartoon ritual of recognition of country and kin that bears no tangible meaning to how Indigenous people recognise one another. We have always operated out of an understanding of our own and other jurisdictions to land and water. This is what makes us Indigenous people.

My first observation is that I realise that, despite my father’s legacy, the legal system of this country remains blind to a concept of a sovereignty enjoyed by Aboriginal and Torres Strait Islander groups...

A treaty is a settlement or agreement arrived at by treating or negotiation. A treaty gives rise to binding obligations between the parties who makes them. It acts to formalise a relationship between the parties to the agreement(s).

In international law the word treaty has been used to cover a variety of international agreements. The Vienna Convention on the Law of Treaties of 1969 is the international codification of the practice of treaty making previously regulated by the Customary Rules of International Law. The Convention was concluded in Vienna on 23 May 1969 and entered into force on 27 January...

Just before the end of his term as Governor-General, Sir William Deane, in an address to the University of New South Wales said:

[in] the forefront of those challenges [that still lie ahead for Australians] are the challenge to heal the divisions in our society including the unacceptable gap between the haves and the have-nots; the challenge to protect and preserve our environment for future, as well as present, Australians; the challenge to overcome entrenched Aboriginal disadvantage and to achieve true and lasting Aboriginal reconciliation.

He continued:

In that regard, my abiding regret as my term as Governor-General expires is...

This paper discusses two aspects in which International Human Rights Law may be relevant to the discussion of a treaty between Indigenous and non-Indigenous Australia. First, international human rights norms may provide a basis for the concept of a treaty between a State and the Indigenous peoples within the boundaries of that State. Second, these norms, particularly those codified in various human rights treaties and other instruments can provide a basis for the content of any such instrument.

Until fairly recent times, the word ‘treaty’ was used for any sort of agreement or compact. Even today, the term ‘private treaty’...

Native title refers to the recognition at common law of the rights of Aboriginal and Torres Strait Islander peoples to their traditional lands and waters.¹ Australia’s basis for this recognition occurred with the High Court’s 1992 decision in Mabo v Queensland (No 2).² Ten years later, sitting down and reaching agreement with traditional owners is now advocated as a preferable way of developing business in regional Australia.³ At another level though, the differences between negotiation rights and consent have become blurred and misunderstood.

In reviewing how this came about I’ll begin by locating this issue in a broader context. The...

In the lead-up to the Bicentennial celebrations of the British settlement of Eastern Australia, the conclusion of a treaty between Indigenous Australians and other Australians was given active and serious consideration. The proposal was given life by the National Aboriginal Conference of 1979 that called for a treaty to harmonise relations between Aboriginal and other Australians.¹

Among those arguing in the affirmative in the debate 20 years ago were a number of prominent non-Aboriginal Australians, including the late Dr HC (Nugget) Coombs a former Governor of the Reserve Bank of Australia, who constituted the Aboriginal Treaty Committee. These people represented...

This paper, prepared for the conference and this volume, while I was the Chairman of the Law Reform Commission of Western Australia (the Commission), is intended to introduce the Commission and its Aboriginal Customary Law project, and also to indicate the stage that project has now reached, since the conference. I am most grateful to the Commission for its help to me in updating this text.

The Commission is an independent agency charged with providing advice to the Attorney General of WA. This advice takes the form of Final Reports, which the Attorney General (AG) would normally table in Parliament...

In the 13 years since the High Court’s recognition of native title in the Mabo case, there has been intense scrutiny of the outcomes achieved through that recognition. For the most part this has focused on the number of successful determinations and the content of the rights reflected in those determinations.

For those of us who look further afield at the changes in the political and legal environment occasioned by the recognition of native title, there is a stark contrast between the potential limits of native title threatened by the adverse outcome in the appeal of the Yorta Yorta Nations...

The rights of Indigenous peoples to self-identify, self-determine and self-represent have been asserted both locally and internationally. The Coolangatta statement, the Kari-Oca declaration entitled ‘Indigenous Peoples’ Earth Charter’² and declarations of the World Indigenous Youth Conference held in Darwin 1993, are recent examples of how Indigenous peoples have stated what to many should be obvious: Indigenous peoples know themselves, their experiences, their land and knowledge systems better than anyone else, and that Indigenous peoples have the right to shape the representation of these realities not only among themselves, but also within colonised nations.

United Nations covenants and declarations have appeared...

This paper starts from the proposition that a treaty is no more or less than an agreement which may be reached between two or more parties. The particular type of treaty which is under discussion in this paper is a treaty which may contribute to the mutual respect with which Indigenous and non-Indigenous peoples may treat each other within the Australian nation. Such treaties may take many forms, be engaged in between a variety of parties, cover a range of geographical areas and touch upon subject matter of infinite variety. The most important of such treaties are likely to be...

Who reading this knows what is a Holy Grail or what is the Holy Grail? We’ve all probably used the phrase ‘we’re searching for the Holy Grail’, ‘I found the Holy Grail’, but how many of us have ever understood what in the hell it is? Many of us have probably used the phrase to express the search for or achievement of goals a lot less lofty, a lot less chivalrous, a lot less spiritual – than was intended by the saintly people of medieval times.

Until two days ago I too had no clue what the hell the Holy...

The Coolangatta Statement represents a collective voice of Indigenous peoples from around the world who support fundamental principles considered vital to achieving reform and transformation of education for Indigenous peoples.

The need for such an instrument is self-evident. Over the last 30 years, Indigenous peoples throughout the world have argued that they have been denied equity in non-Indigenous education systems which has failed to provide educational services that nurture the whole Indigenous person inclusive of scholarship, culture and spirituality.

Almost all Indigenous peoples, and in particular, those who have suffered the impact and effects of colonization, have struggled to access...