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-

 

 

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. 

 

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).

 

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). 

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.