Treaty Now: Why denial of Indigenous self-governance is internationally unjust – Thomas Brennan

One of the most pointed criticisms levelled at the Turnbull Government in 2017 was its refusal to ratify the proposals of the Indigenous Referendum Council.

In the recommendations of their final report submitted to Prime Minister Turnbull, the Council proposed the creation of an advisory body representative of First Nation peoples to work with the legislature in order to address constitutional inequalities facing Indigenous Australians. The recommendations further included interpreting (or possibly even amending) the power to make laws with respect to ‘any race’ under s 51 (xxvi) as well as establishing an additional legislative committee to oversee the process of ‘truth-telling’ in drafting treaties with respect to Indigenous Australian Sovereignty at a Federal level. This relationship was encapsulated in the word ‘Makarrata’, which denotes a relationship of honesty and candour amongst leaders within the Yolgnu people of Arnhem Land.

(‘Request for Treaty’ by Michael Coghlan/Flickr)

The Turnbull Government defended their position on the grounds that the proposals were unclear in their intent and, in any event, could be so radical that they would create a parliamentary ‘third chamber’, which would prove divisive amongst Australians. This article will explore what models the Referendum Council may wish to pursue with reference to domestic and international notions of representation and sovereignty.


Indigenous Australian representation was recognised for the first time in a limited way by the Commonwealth through the nation-wide referendum of 1967. The referendum result was overwhelmingly in favour of abolishing the words in s 51 (xxvi) of the Constitution which granted the Commonwealth Parliament power to make laws with respect to ‘people of any race, other than the Aboriginal Race in any state’. As a result, the Commonwealth Government could now make decisions with respect to Indigenous Australian statehood without necessarily guaranteeing needed representation (See Gunstone in Devere et al, Peacebuilding and the Rights of Indigenous Peoples, p 17-8)

First attempts at a consultative legislative committee came in the forms of the National Aboriginal Consultative Committee (NACC) as well as the Commonwealth Department of Aboriginal Affairs (DEAA) under the Whitlam Government. However, with a changing policy between the Fraser and Hawke Governments, these bodies were replaced with the Aboriginal and Torres Strait Islander Commission (ATSIC). Their workers were mostly staffed by the Commonwealth, not Indigenous representatives. The goal of ensuring that demands for an Indigenous Australian commission in the NACC and DEAA would be less radical had effectively come at the cost of reduced legislative representation for First Nation peoples (See Gunstone, p 18-21).

With the abolition of the ATSIC by the Howard Government in 2005, Indigenous Australian decision making at a national level continues to remain largely in the hands of the Federal Government. This has led to continued damage inflicted on Indigenous health and culture in initiatives such as the ongoing Northern Territory National Emergency Response Act 2007 (Cth) which have been condemned internationally for suspending local rights and styming education under the guise of paternalistic protection.


Mabo v Queensland (No 2) solidified the importance of connection to land to Indigenous rights through abolishing the Australian legal maxim ‘terra nullius’ or ‘land belonging to no one’. To strengthen this right, the Keating Government implemented measures such as the Native Title Act 1993 (Cth) to allow Indigenous Australian peoples to claim sovereignty over land if they can sufficiently argue the importance of that land to their native laws and customs at a federal level (s 82). This has, however, come under threat chiefly from increasing legislative rollbacks to the Act to reduce the inextinguishable Native Title rights since the Native Title Amendment Act 1998 (Cth). Additionally, it has also been complicated by intense legislative debate on what is meant by Indigenous ‘sovereignty’ in the aftermath of Mabo.

The main counterpoint to Mabo from an Indigenous Australian perspective draws on Coe v Commonwealth, in which the Wiradjuri Nation of New South Wales was unsuccessfully argued to be a separate national body from the Federal Government by the plaintiff, Isabel Coe. Since Mason CJ’s dismissal of this argument (at [56]), Indigenous policy makers have argued that returning land does not necessarily equal a returning of sovereignty if First Australian peoples are still treated as subjects of the Australian state (See Mansell, Treaty and Statehood, p 184).

The United Nations Declaration on the Rights of Indigenous Peoples supports this idea of a separate system of government in that indigenous people have a ‘right of national self-determination’ (art 3). Although the instrument itself is not domestically enforceable (Australia, which originally voted against it, only announced its support in 2009), it has proved the catalyst for political institutions to push for a recognition of First Nation statehood. To help realise its proper implementation, it is important to consider how other countries have interpreted it.

An International Resolution

The 2009 Constitution of Bolivia under President Evo Morales constructed a constituent assembly with a mandatory representation of Bolivia’s indigenous groups (art 5) and implemented reforms to the judiciary that recognised the legitimacy of local forms of communitarian justice in helping solve disputes (art 26). Although Bolivia faces problems implementing Indigenous ownership of land as a consequence of having to appease conservative interests to approve the Constitution (see Tockman, p 125), this model provides a basis through which ‘Makarrata’ could be found through dialogue in parliament.

Elsewhere, New Zealand has formally recognised the traditional sovereignty of the Maori people over their lands prior to (and after) British invasion through the solidifying of the 1840 ‘Treaty of Waitangi’ in the Treaty of Waitangi Act 1975. Although concerns remain over the unjust incarceration and denial of justice facing Maori people, the Treaty of Waitangi Act 1975 leaves several important legacies. These include supporting communal forms of justice (

The New Zealand example demonstrates that treaties are needed to help foster representation and sovereignty as outlined in the United Nations Declaration on the Rights of Indigenous Peoples. Honouring the right of Indigenous peoples to claim redress for loss of culture or sovereignty in accordance with p. 5, Article 8 (2) (a), the Treaty of Waitangi Act 1975 has allowed Maori people to successfully claim compensation for colonisation. For example, in 1991, the Ngai Tahu claim for greater compensation for the loss of some 34.5 million acres of their land as evidenced in p. 1066 of the Tribunal’s final report. This has helped contribute to the survival of their culture and the proper helping of their local communities thanks to their right to purchase and keep their traditional lands from crown usage.

The Waitangi tribunal and constituent assembly of Bolivia also provide strong models through which indigenous people can exercise self-governance and communal justice in conjunction with the workings of the colonial state. This is in accordance with the  right to indigenous self-determination under p. 4, Article 3 of the Declaration on the Rights of Indigenous Peoples as well as the right to ‘equal rights and self-determination of peoples’ under Article 1 (2) of the Charter of the United Nations.


Proposals for a parliamentary third chamber or, alternatively, a separate centralised Indigenous Australian state, have been made since at least David Unaipon’s appearance at the 1926 Royal Commission. Whichever model representation may take, it would serve to guarantee the connection to land and local customs in conjunction with Commonwealth law in such a way as to deter the disadvantages suffered when local communities are not consulted on legislation. The constitutional powers that permit the Commonwealth to acquire land ‘for any purpose’ (s 51(xxxi)) and the implications that it poses in negating the Native Title Act are proof that a decision making body is needed as a safeguard.

Ultimately, these examples demonstrate that denial of First Nation sovereignty and representation, and the half-hearted attempts to remedy this through constitutional recognition, are unsustainable. If Australia is to start remedying discrimination, the Australian Government must seek a treaty with First Nation peoples and implement a genuine parliamentary voice.

Thomas Brennan is a penultimate-year Law and Communications Student at the University of Technology Sydney. He is interested in issues of constitutional law and legal research and enjoys utilising these passions as Publications Director of the UTS Law Student’s Society for 2018.