What is a treaty or direct negotiation process?

A treaty is essentially a pact formed between two nations or communities, each with the right of self-government. It is not essential that each party posses the same rights to give force to the treaty, simply that each party have the recognised right of self-government, and the power to perform the terms of the treaty.

Many indigenous people have argued in favour of a treaty process backed up by constitutional and legislative change.

Such a process might take the form of a network of regional and sectoral agreements within a constitutional pathway. Or it might take the form of a series of documents, such as agreements negotiated for certain geographic areas or on certain issues.

The essential element of a treaty process is direct negotiations. Negotiations offer a forum for views to be heard, for complex issues to be "unbundled" and considered deeply, for increasing awareness of each others concerns and essential values, for goodwill and mutuality to develop.

There are many important outcomes of a treaty or direct negotiations process:

• Treaty agreements reduce or put an end to conflict over lands and resources. If economic and community development is to take place, people need to know who owns a piece of land, who has the right to the resources on it and who has law making authority over it.
• If disputes do arise, treaties provide agreed-upon processes for resolving them.
• Because treaties are developed by and agreed to by the parties affected, they are made to last.
• Treaties entrench the rights of indigenous peoples in a form that cannot be wiped out by the next hostile government with a temporary majority.
• Treaties can even gain the support of those who do not believe in indigenous rights, because of the opportunity for "closure" they offer.

One of the major benefits of a treaty or direct negotiations process is the opportunity it offers for renewing relations between indigenous Australians and the Australian State.

Process is important

To achieve these wanted outcomes the process itself is all-important. Some operational principles are:

Australia has to find its own way forward. It is not possible to pick up a document that has worked elsewhere and simply adopt it in Australia.

The process cannot be rushed. Adequate time must be given to permit discussion and negotiation over time, to obtain advice, to explore positions, to consider, consult and reconsider free from undue pressure or constraints; and to enable mutual understanding to be generated and legitimacy of outcomes to be achieved.

The integrity of the process is important. Legitimacy and workability flow from the way things are done as much as from the words ultimately written on the document.

Respect must be accorded to indigenous preferences as to how the process should go ahead. No so-called solutions can be imported or imposed. Resolution of outstanding issues can be achieved only through negotiation between equals.

Indigenous participation in the Reconciliation and resolution processes must be representative. While organisation of this will be complex, negotiations are unlikely to be able to proceed until there is a broad consensus about indigenous representation. Indigenous people must decide on an approach to concepts of individual, community and representation which is culturally appropriate.

Guidance on these issues can be found in numerous overseas examples of modern day treaty processes.

Further Information:

ANTaR, August 2000: A Partnership of Equals: The role of formal negotiations in Reconciliation for Australia. (.pdf file 252K)