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Ø  Take it slowly
In order to build the capability to be self-determining, it is important to avoid working to settler government timelines. By taking a strategic incremental approach, it will allow for the development of governance structures that facilitate the consideration of centrally important matters by Indigenous Australians (Nikolakis et al. 2019, p. 148).

Ø  Minimise power imbalances
The manner in which states approach treaty talks can also heighten or diminish power imbalances (Hobbs and Young 2021, p. 258). Process is important. Many historic treaties struck between First Peoples and colonial powers were one-sided and unjust because their negotiation was not fair (Hobbs and Young 2021, p. 252). Legacies of dispossession mean that many First Peoples may be distrustful of entering negotiations with the state (Hobbs and Young 2021, p. 255).

Ø  Representative of the diversity of Aboriginal Victorians
The use of Aboriginal Victorian own cultural geographies of identity as the basis for rebuilding governance arrangements and mobilizing group support is vital for sustainability (Nikolakis et al. 2019, p. 149). Currently there are members of Victorian Parliament who have suggested that negotiations should be handled by parliament rather than an independent authority, I recommend that an independent authority is a key stakeholder.

Ø  Build relational trust
Because treaties are relational, their ultimate negotiation and success will also rely on the support of non-Indigenous peoples. The state government has sought to promote awareness of, and build support for, treaty among non-Indigenous Victorians during the first stage (Hobbs and Young 2021, p. 254), I recommend continuing to focus upon this with members of Parliament and the general public. Government within Australia frequently adopts a defensive focus, contesting Native title claims at every point. In Canada, there have been attempts to overcome similar shortcomings, with negotiators adopting an ‘interest-based’ negotiation strategy rather than a ‘positional’ one (Hobbs and Young 2021, p. 258).

Ø  An evolving, living document
It is important to be able to experiment, refine and adapt solutions as the negotiations evolve, and revisit treaties over time. Designing solutions takes time to consider issues, consult widely and inclusively, build consensus, and get feedback from community and regional members (Nikolakis et al. 2019, p. 149).

Ø  Constitutional protection
Whilst there is far greater constitutional space for innovative settlements at the state level, they are legally vulnerable without constitutional protection (Hobbs and Williams 2019, p. 219), therefore I recommend enshrining the Uluru Statement from the heart.

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To fully capture self-determination, engagement with Indigenous peoples and communities about their perspectives is necessary (Yap and Yu 2018, p. 95). However, a pressing contemporary challenge is that incorporation has become a legal process with external regulation and oversight by the Australian government (Nikolakis et al. 2019, p. 134). Formally incorporated Indigenous organisations have been set up for the purposes of “engaging” and “consulting” with Indigenous people to gain participation in government determined initiatives and agenda (Nikolakis et al. 2019, p. 134). There is a heavy workload for small communities, with a significant external imposition of priority-setting (Nikolakis et al. 2019, p. 135). The significant governing work that is undertaken by Indigenous community members is exhaustive and can have major, often negative, consequences for day-to-day governance at the local community level (Nikolakis et al. 2019, p. 134).

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Challenges in formulating policy related to treaty

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Challenges in formulating policy related to treaty

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Treaties have failed over time to maintain the relational element necessary for sustainable and meaningful settlements (Hobbs and Young 2021, p. 244). A key challenge is trust within negotiations, with current approaches leaving the ultimate decision making to reside in the hands of the Victorian Government (Cornell 2002, p. 9). The act and process of recognition for Indigenous peoples tends to occur within existing dominant Western frameworks and is saturated in power relations (Yap and Yu 2018, p. 93).

A reoccurring challenge within treaty negotiations is the topic of sovereignty, with some non-Indigenous members of Victorian parliament stating that negotiations cannot be entered into with those who are “citizens of Australia” when discussing First Nations peoples. British colonial control gave no recognition to Indigenous sovereignty in Australia, as a consequence self-governance by Indigenous peoples has been severely constrained in Australia.  (Nikolakis et al. 2019, p. 131).

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Like Australia, there are hundreds of Indigenous nations across Canada in which the Crown assumed sovereignty to lands without a written treaty (Nikolakis et al. 2019, p. 58). Since 1973, Canada has negotiated and sought to settle First Peoples’ rights through modern treaty processes (Hobbs and Young 2021, p. 234). Historically, Canada has shown reluctance to share power within Indigenous decision-making (Nikolakis et al. 2019, p. 67). This has led to many Indigenous people being highly critical of treaty negotiations, as it legitimates the colonial state as the ultimate authority rather than acknowledging and accepting the pre-existing sovereignty of Indigenous nations (Kuokkanen 2019, p. 94). This is a continuation of colonial power, with negotiated self-government agreements rarely being culturally specific due to having to adhere to the formula set by the federal government (Kuokkanen 2019, p. 92). Canada is currently taking steps to rectify this issue through an increase in “blended Westminister models”, in these models more substantive powers are available to clans, elders, or hereditary chiefs in their governance (Nikolakis et al. 2019, p. 66).

A key difference between Canada and Australia is that modern settlements between First Nations and provinces in Canada are negotiated with both federal and subnational governments (Hobbs and Williams 2019, p. 217). In Canada, modern treaty settlements are constitutionally protected. However, in Australia the Commonwealth Parliament may invalidate any eventual settlement, legislating to deny the terms of a treaty (Hobbs and Williams 2019, p. 224). Whilst state-led treaty processes are important, the issue of Commonwealth legislation preventing state treaties could be avoided by adopting the Canadian approach of negotiating treaties with both the subnational and national government (Hobbs and Williams 2019, p. 227). By potentially modelling on the British Columbia Treaty Commission, a Makarrata Commission could develop and enforce a treaty framework that encourages all participants to negotiate in good faith (Hobbs and Williams 2019, p. 232).

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Phase three of the Victorian treaty process

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Phase three of the Victorian treaty process

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Phase two of the Victorian treaty process

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Phase two of the Victorian treaty process

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Phase one of the Victorian treaty process

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Phase one of the Victorian treaty process

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Long before colonisation, Indigenous peoples across Australia, Canada and Aotearoa/New Zealand made law and collective decisions, settled disputes amongst themselves, and established rules by which to organise their lives and communities (Nikolakis et al. 2019, p. 14). There are significant differences across these three countries in the extent to which the right to self-governance has been legally recognized and how Indigenous peoples are exercising those rights (Nikolakis et al. 2019, p. 130). Unlike Canada and Aotearoa where treaties were devised upon British settlement, Australia lacks a formal agreement between Indigenous nations and the British Crown (O’Sullivan 2021, p. 1071). There has been no formal recognition in Australia of Indigenous peoples’ rights as autonomous political actors and no constitutional recognition (Nikolakis et al. 2019, p. 131).

Treaties can be used as mechanisms through which First Peoples and non-indigenous political communities can settle ongoing tensions (Hobbs and Young 2021, p. 234). There is no single approach or model for treaty-making due to the diversity of the world’s Indigenous peoples (Kuokkanen 2019, p. 62). However, by looking towards other countries, in this case Aotearoa and Canada, we can learn valuable lessons to implement within the treaty process in Victoria.

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In recent years, several Australian states have formally committed to treaty negotiations with traditional First Peoples, one state of which is Victoria (Hobbs and Young 2021, p. 234). These negotiations have been a significant political and policy development in Indigenous settler relations. Victoria is currently in Phase Two of the treaty process (State Government of Victoria 2021). See pictures below for the current roadmap to treaty.

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The treaty process in Victoria can ascertain valuable lessons from Aotearoa/New Zealand. The New Zealand parliament has increased indigenous representation, in the form of dedicated Māori seats at the table (Yap and Yu 2018, p. 95). Rights and recognition in parliament, and the negotiation of treaties, is a notable departure from traditional government policy development, with layers of Māori governance embedded at local, regional and national levels to ensure that policy remains representative of Māori views (Nikolakis et al. 2019, p. 163). Historically within Australia the policy process has been for government to design a proposed framework to a high level of detail, and then consult with First Nations peoples, under which the government retains decision-making power (Nikolakis et al. 2019, p. 163). In contrast, policy processes within Aotearoa have been led by Māori from conception.

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An important commonality between the Indigenous peoples of Canada, New Zealand and Australia is their shared goal of establishing and exercising the right to govern themselves (Nikolakis et al. 2019, p. 130). If effective, modern treaty making offers the potential to rebuild and re-empower First Peoples, enabling them to play a meaningful role in the development and implementation of solutions to problems faced by their communities (Hobbs and Young 2012, 235). Victoria has much to learn from the process of treaty negotiation and continuing renewal in Aotearoa and Canada, proving to be dynamic and responsive sites of negotiation (Hobbs and Young 2021, p. 242).

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Cornell, S 2002, ‘Nation-building and the treaty process’, Indigenous Law Bulletin, vol. 5, no. 17, pp. 7-10.

Dodson, M 2002, ‘Sovereignty’, Balayi: Culture Law and Colonialism, vol. 4, no. 2002, pp. 13-19.

Hobbs, H and Williams, G 2019, ‘Treaty-making in the Australian Federation’, Melbourne University Law Review, vol. 43, no. 1, pp. 178-232.

Hobbs, H & Young, S 2021, ‘Modern treaty making and the limits of the law’, University of Toronto Law Journal, vol. 71, no. 2, pp. 234-273.

Kuokkanen, R 2019, ‘Indigenous Self-Government Structures in Canada, Greenland, and Sámpi’, in R Kuokkanen (eds) Restructuring Relations: Indigenous Self-Determination, Governance, and Gender, Oxford University Press.

Nikolakis, W, Cornell, S, Nelson, H.W, Pierre, S & Phillips, G 2019, ‘The evolution of Indigenous Self-Governance in Canada’, Reclaiming Indigenous Governance: Reflections and Insights from Australia, Canada, New Zealand and the United States, University of Arizona Press, United States of America.

O’Sullivan, D 2008, ‘The Treaty of Waitangi in Contemporary New Zealand Politics’, Australian Journal of Political Science, vol. 43, no. 2, pp. 317-331.

O’Sullivan D 2021, ‘Treaties and re-setting the colonial relationship: Lessons for Australia from the Treaty of Waitangi’, Ethnicities, vol. 21, no. 6, pp. 1070-1092.

State Government of Victoria 2021, Treaty Process, viewed 2 July 2022, https://www.firstpeoplesrelations.vic.gov.au/treaty-process

Yap, M and Yu, E 2018, ‘Expressions of Indigenous rights and self-determination from the ground up: A Yawuru example’, in (eds) Howard-Wagner, D, Bargh, M and Altamirano-

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Deadly Questions- What will a Treaty mean for Victorians?

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Deadly Questions- What will a Treaty mean for Victorians?