A Territory Treaty

Harry Hobbs*, a PhD Candidate at the Faculty of Law, University of New South Wales presented a paper at the workshop, and his article below draws from that presentation.

Following his election in 2016, Chief Minister Michael Gunner indicated that his government was prepared to discuss the possibility of negotiating a treaty with the Territory’s Aboriginal people. 

Although developments have been slow, treaty is still a priority, and the government is poised to announce plans to progress discussions with Aboriginal people. These moves are promising. They mark the first time in history that a Territory government has seriously considered a treaty. As Central Land Council Director David Ross and Northern Land Council CEO Joe Morrison have noted, however, the matter of a treaty and what it comprises is “sensitive and complex”. It is crucial that Aboriginal people are well-prepared to drive the process—rather than have government lead. 

In this article, I broadly set out possible outcomes under a treaty, note that legal complications suggest that it is prudent to involve the Commonwealth in a formal or informal capacity, and outline three potential approaches to negotiating a treaty. The aim is to ensure that all Aboriginal people are ready for what might happen next.

What is a treaty, and what outcomes are possible? 

There are many examples of agreements between Indigenous peoples and governments, both in Australia and around the world. In the Northern Territory, for instance, there are agreements relating to land rights, joint-management of national parks, and resource benefit-sharing agreements, among many others. Simply calling an agreement a treaty does not make it so. A treaty is a special kind of agreement that must satisfy three conditions. First, it must recognise Aboriginal people as a distinct community as well as acknowledge the deep historic and contemporary injustices that invasion has caused. Second, a treaty is a political agreement that must be reached by way of a fair process of negotiation between equals. Third, a treaty must contain more than symbolic recognition, or service delivery provisions. 

The specific outcomes that a treaty can entail vary widely, reflecting the different aspirations of negotiating parties across the globe. Based on the aspirations of Aboriginal people in the Northern Territory, as recorded in the Barunga, Kalaringi and Uluru Statements, as well as the United Nations Declaration on the Rights of Indigenous Peoples and the contemporary treaties negotiated in Canada, a treaty in the Territory might include terms relating to: transfer of land, and rights over resources and cultural heritage; financial compensation to satisfy outstanding claims and secure autonomous functioning of services within Aboriginal lands; and, some degree of self-government. This may amount to powers similar to local government, or could potentially go further and include the administration of justice, family, and social services, education, and healthcare. Importantly, however, while this could recognise the inherent sovereignty of Aboriginal nations, a treaty will be subject to Australian law. Commonwealth laws will therefore apply where a conflict or inconsistency arises with a treaty or Aboriginal law. 

Northern Territory First Nations will be best placed to know exactly what they want in any treaty, but this brief survey gives some indication of the types of things that may be agreed to. Nonetheless, Aboriginal-led consultations and discussions must take place across the Territory before any negotiations commence. 

Legal complications 

A critical question that needs to be answered before Aboriginal people in the Territory determine what outcomes they desire under a treaty is a legal one. The Northern Territory is not a State, and therefore has limited powers in certain areas. Will these limitations complicate a potential treaty? 

The Northern Territory’s powers are delegated from the Commonwealth Parliament and are set out in two instruments: The Northern Territory (Self-Government) Act 1978 (Cth) and the Northern Territory (Self-Government) Regulations 1978 (Cth). All of the Territory’s authority flows from these two Acts. The Self-Government Act and the Self-Government Regulations provide broad law-making power over issues connected to Indigenous Affairs. Under these Acts, the Northern Territory could enter into a treaty with Aboriginal nations.
However, there are two complications which suggest that the Commonwealth should be involved in any treaty negotiation. First, the Northern Territory has limited powers over Aboriginal Land, and any treaty must be consistent with the Australian Constitution and all current and future Commonwealth laws. 

Limited power over Aboriginal Land

The Northern Territory has no power over matters that relate to Aboriginal Land as defined under the Aboriginal Land Rights (Northern Territory) Act 1975 (Cth). This means that certain terms could be excluded from the negotiation of any treaty signed solely with the Northern Territory. In relation to lands and resources, for example, a treaty could not: transfer rights to subsurface minerals under Aboriginal Land to Aboriginal control; overrule a declaration by the Governor-General to grant an exploration licence over the wishes of Traditional Owners; or entirely exclude the Crown from occupying Aboriginal Land. There may be more limitations. 

It is also unclear whether a treaty could include provisions relating to self-government and sovereignty on Aboriginal Land. This is because some provisions of the Land Rights Act suggest that it recognises Aboriginal governance systems. For instance, section 69(2) of the Act permits Aboriginal peoples to determine who has the authority to enter and remain on sacred sites in accordance with their traditions. This is both a property right (the right to exclude) and a recognition of Aboriginal self-governance (as the source of the right to exclude lies in the traditional law of the Aboriginal nation). Indicative of the legal uncertainty surrounding recognition of self-governance rights however, the existence of the Northern Territory Local Government Act suggests that a treaty could include self-governance rights akin to local government. 

Complications may exist in relation to provisions concerning land and resources and self-government, but there is no restriction on the Northern Territory providing reparations, compensation, or other financial guarantees to Aboriginal nations. Compensation, a capital fund, and financial transfers, could be part of a treaty.

As noted, these limitations apply only to Aboriginal Land in the Territory. They do not apply to the approximately 50 per cent of land not covered by the Land Rights Act. Over this land, many other mechanisms to recognise Aboriginal sovereignty could be included in a treaty including, an elected Aboriginal body to advise government on proposed laws that affect Aboriginal peoples in the Territory, and/or greater Aboriginal representation on government boards. Rights to subsurface minerals could also be included in a treaty that covers non-Aboriginal Land. 

Limitations arising from the Australian Constitution

These limitations can be worked through, but the second legal complication is more significant. The Northern Territory’s powers are subject to limitations imposed by the federal Constitution. A Northern Territory Act giving effect to a treaty must be consistent with all current and future Commonwealth laws. This means that even if a treaty negotiated with the Territory could include expansive self-government powers on Aboriginal Land, a future Commonwealth law could overrule it. This would remain the case even if the Northern Territory achieved statehood. The only way to prevent this from occurring would be by a referendum to insert a new protection against racial discrimination or a provision protecting “treaty rights” in the Constitution. Neither of these proposals was included in the Uluru Statement from the Heart. 

In summary then, the Northern Territory can negotiate a treaty with Aboriginal nations. The treaty cannot include terms that concern Aboriginal Land under the Land Rights Act. If First Nations wish to enter into a treaty that includes terms that do relate to Aboriginal Land, the Territory needs Commonwealth support. Even if a Treaty does not legally require Commonwealth action however, it would be prudent to involve the Commonwealth. Otherwise we may find that a treaty in the Territory is overruled by a future federal government. 

How should treaties be negotiated? 

The second key question that Northern Territory First Nations need to determine before negotiations commence is a process one: How should treaties be negotiated? A choice can be made among three options. First, one overarching treaty for all Aboriginal peoples in the Territory is signed. Second, each nation negotiates separate treaties. Or, third, a middle ground, whereby one umbrella agreement with multiple separate side agreements is negotiated. First Nations across the globe have adopted different approaches. 

A single overarching treaty 

The Treaty of Waitangi between Māori Chiefs and the British Crown is an example of a single overarching treaty. Under this approach, one treaty that encompasses all Northern Territory First Nations and the Territory (and potentially Commonwealth) government would be negotiated and signed. This approach is likely to be favoured by the Northern Territory and Commonwealth, as it avoids complications in negotiating and implementing a large number of agreements with diverse groups across the Territory. 

This approach offers two clear strengths. First, it ensures that rights and obligations are consistent for all Aboriginal nations. Second, assuming agreement between Aboriginal nations is reached, a Territory-wide treaty could be negotiated relatively quickly, because government can focus on one forum, rather than many. 

It also comes with several weaknesses however. Significantly, in the rush for a single-agreement, local needs and aspirations of distinct Aboriginal nations may be ignored or dismissed. Indeed, this fact suggests that that a treaty negotiated this way may take many years because there will likely be difficulties in securing agreement between all Territory First Nations. In any case, following that agreement, there is no guarantee that government will negotiate more quickly under this approach.

A series of separate treaties with each Aboriginal nation

This approach has been adopted in British Columbia, Canada, and in the preliminary negotiations towards treaty in South Australia. Under this approach, separate treaties would be negotiated and signed between individual Northern Territory First Nations and the Territory and Commonwealth governments.

Once again, this approach has several strengths and weaknesses. First, separate treaties more accurately reflect the sovereignty of each nation and mean that agreements struck are more likely to closely track the specific aspirations and needs of Aboriginal nations across the Territory. Second, because some nations may already be in a position to negotiate, some treaties may be agreed to in a short period.

Conversely, capacity disparities between First Nations in the Territory might result in weaker rights and obligations for some nations. Larger nations with more resources may be in a position to demand more from government than others. This is a serious problem, but it could be rectified by including a term in all treaties allowing for renegotiation if stronger rights are agreed to in other agreements. However, such a term would not overcome all capacity disparities, and for smaller nations it may take many years before a treaty is finally agreed to. In the meantime, if the Northern Territory government later decides to stop negotiating, some nations will have treaties while others may not. 

As I mentioned, this approach has been adopted in British Columbia, Canada. In order to mitigate capacity disparities among First Nations, the British Columbia Treaty Commission was established in 1993. The Treaty Commission is an independent and impartial body designed to facilitate treaty negotiations. It consists of five commissioners: two appointed by First Nations, one each by the Federal and Provincial governments, and one further commissioner agreed to by the three parties. Although the Commission and the treaty process face challenges, since 1993 eight treaties have been finalised, and a further seven are close to completion. This Commission may be a useful example for Aboriginal nations in the Territory. 

Combination of an overarching treaty and underlying separate treaties 

The third approach combines elements from both the first and second models. Here, one general agreement containing provisions consistent across the Territory would be agreed to, but with scope for separate side agreements to be reached by individual First Nations to reflect their specific aspirations and needs. 

This approach also has its own strengths and weaknesses. Most significantly, it ensures that a minimum standard is agreed to across the Territory, while providing scope for specific agreements to reflect local needs and aspirations. This two-stage process also means that the broad contours of a treaty can be reached relatively quickly, while the harder, more specific terms can be negotiated later. Conversely, once again, capacity disparities may mean that some First Nations gain weaker rights than others. Additionally, while the two-stage process offers advantages, it does require government to sustain momentum and engagement after securing an umbrella agreement.

This approach has been adopted in the Yukon Territory in Northwest Canada. The Yukon Umbrella Agreement constitutes a general agreement over certain matters, specifying a broad single standard under which specific First Nations can negotiate separate treaties for additional or distinctive rights depending on their situation. The Umbrella Agreement identifies which provisions apply to all agreements, as well as areas where First Nations may negotiate provisions specific to their own needs. Under this process, 11 of the 14 Yukon First Nations have signed and ratified treaties. Three have chosen not to participate.

Points to consider

Whether a treaty should be negotiated, what its terms may include, and how the process should be structured, are questions that must be determined by all Aboriginal people across the Northern Territory. This paper has simply raised several points that need to be considered before those negotiations take place in order to ensure Aboriginal nations are ready. 

I end with three points. First, this discussion has revealed that it is important for the Commonwealth to be involved in any treaty negotiations. Legally, there are questions over the Territory’s authority to negotiate certain terms, and politically, the federal Parliament could legislate to overrule the terms of any treaty. Unfortunately, an important safeguard in Canada is not present here – treaties will not be constitutionally protected. 

Second, whatever approach is adopted must be consistent with Northern Territory First Nations needs and aspirations, but it is necessary to be aware of the strengths and weaknesses of each model. Nonetheless, regardless as to what process is adopted, agreement needs to be reached by Aboriginal people in the Territory over desired outcomes. This could take considerable time. In Victoria, for example, it has taken more than 18 months of discussion and consultation and an Aboriginal Representative Body has still not been established. 

Finally, Territory First Nations should not have to choose between treaty or constitutional recognition. Indeed, as Megan Davis has argued, “treaty is recognition”. The Uluru Statement from the Heart called for the creation of a Makarrata Commission to supervise a process of agreement-making between government and First Nations. In the face of Commonwealth government inaction, a Territory Treaty (or Treaties) offers hope for all Aboriginal and Torres Strait Islander people across the country.

*Harry Hobbs is a PhD Candidate at the Faculty of Law, University of New South Wales. This paper draws from a presentation he made at the Northern Land Council’s Treaty Workshop in Darwin, 19-20 February 2018.

This article was published in Land Rights News Northern Edition February 2018.