Treaties and re-setting the colonial relationship: Lessons for Australia from the Treaty of Waitangi

Abstract

Colonial hegemony distinguishes relationships between the Australian state and Indigenous nations. British government was violently established and there was no accommodation with the Indigenous populations to allow settlement to proceed, as occurred through treaties in Canada and New Zealand. Indigenous arguments for treaties in Australia are, however, well established. Notwithstanding some Commonwealth and state and territory governments considering such agreements over the past 40 years, none have been concluded, and more modest forms of recognition have been alternatively proposed. In 2015, following extensive Indigenous advocacy, the Prime Minister and Leader of the Opposition appointed a Referendum Council to consult on an amendment to the Commonwealth Constitution to recognise Australia’s first peoples. The recommendation of a Voice to Parliament and a Makarrata Commission to oversee truth telling and agreements to allow ‘coming together after a struggle’ suggested a transformative ambition beyond the Prime Minister and Leader of the Opposition’s expectations. Makarrata does not stipulate treaties as an ideal form of agreement, but in raising the possibility, the Council added to the concept’s political momentum. This article discusses the place of treaties in contemporary Australian discourse, including treaty negotiations that are in progress in Victoria, Queensland and the Northern Territory. It uses examples from New Zealand’s Treaty of Waitangi to discuss their possibilities and limits in Australia. From these examples, two overarching arguments are made. Firstly, that treaties are potentially transformative, not because they may settle historical grievances, but because their required mutual recognition of each party’s enduring political standing means that they define ongoing, just terms of association. Secondly, the substantively different political arrangements that they presume mean that they are not merely instruments of egalitarian justice and are instead concerned with the distribution of political authority – Indigenous authority over their affairs and through a distinctive and culturally contextualised state citizenship.