A Made in Australia Model for Indigenous-State Treaty-Making

Current project

In November 2024, the Victorian government and the First Peoples' Assembly of Victoria began negotiations towards Australia's first formal Treaty. This ARC funded project aims to support Australian treaty processes by addressing several key public law issues.

 

About the Project 

Treaties are accepted around the world as a way of resolving differences between Indigenous peoples and newcomers. Agreements were struck in North America and Aotearoa New Zealand and continue today to be negotiated in Canada. Australia is an outlier. No formal treaty with Aboriginal and Torres Strait Islander peoples has ever been reached. Since 2016, however, governments across the continent have committed to entering contemporary treaty processes.

In the aftermath of the failed Voice referendum, treaty processes are especially significant. Treaties are a framework for addressing past injustices and building new relationships based on self-determination, justice, and respect. These foundations are key to improving socio-economic outcomes. Treaties are also a language for Indigenous and non-Indigenous citizens to listen, to talk, and to articulate common aspirations and values. In this way, treaties can contribute to a more unified and reconciled nation.

There are many challenges to successful treaty processes in Australia. One major challenge relates to the historical absence of treaty. Governments and Indigenous communities have little familiarity with major elements of treaty. A host of fundamental questions, such as what a treaty might contain or what a proper negotiation process might look like, remain unclear. 

This project aims to ensure the viability of Australian treaty processes by addressing key public law issues that must be resolved for treaty negotiation. It asks:

  1. How has modern treaty-making and treaty-settlement been undertaken in our key comparative states of
    Canada and New Zealand? What historical, political, legal, and institutional factors promote settlements?
    What public law institutions and processes support and facilitate treaty?
  2. What is the constitutional and legal position of Australia’s national, state and territory governments with
    respect to the scope and content of treaties with Indigenous communities?
  3. What is the most viable legal and constitutional model of treaty-making for Australia?

In answering these questions, the project will develop a flexible, innovative, and path-breaking ‘made in Australia’ model for contemporary Indigenous-State treaty-making. Informed by international experience and consistent with Australia’s constitutional framework, the ‘made in Australia’ model will clarify public law issues surrounding treaty, safeguarding its legal viability. It will identify the design of key institutions to shepherd negotiations, respect the diversity of Indigenous communities, and improve the likelihood that treaty processes will succeed.


This project is funded by an Australian Research Council grant entitled ‘A Made in Australia Model for Indigenous-State Treaty-Making’ (DE240100454).

UNSW Law & Justice building

Overview of treaties in Australia

Several governments in Australia have made initial commitments towards talking treaty with Indigenous Australians. Progress is not linear. The failed referendum on an Aboriginal and Torres Strait Islander Voice has led some governments to reconsider their commitment.

Victoria
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Victoria has made significant and sustained progress towards the first formal Australian Treaty. From an initial commitment in 2016, the government and Aboriginal Victorians have worked together to build the necessary institutions and architecture to facilitate treaty talks. In November 2024, the government and First Peoples' Assembly of Victoria commenced negotiations. The parties aim to reach a Statewide Treaty before the next state election in November 2026. A second stage of Traditional Owner Treaties is expected to follow. 

The Victorian Treaty Process is structured around three-phases.

  1. Phase 1: Establishing an Aboriginal Representative Body (2016-2019)
  2. Phase 2: Developing a Treaty Framework (2019-2023)
  3. Phase 3: Negotiating Treaties (2024 - present)

There are several key institutions that have been developed to facilitate Treaty negotiations.

The First Peoples' Assembly of Victoria is a representative body of Aboriginal Victorians. Its role is to administer a self-determination fund to support Aboriginal Victorians in treaty negotiations and work with government to establish the necessary treaty architecture. 

The Yoorrook Justice Commission is Australia's first truth telling commission. Invested with the powers of a Royal Commission, the Commission is empowered to establish an official public record, develop a shared understanding of First Peoples’ experiences of systemic injustice and help build the foundations for a new relationship between Aboriginal and non-Aboriginal Victorians. 

The Treaty Negotiation Framework was the product of negotiation between the government and First Peoples' Assembly. The Framework is a legally binding document that outlines the minimum standards and ground rules all parties must abide by during negotiation.

The Treaty Authority is an independent body that oversees treaty negotiations in Victoria. It will resolve disputes and ensure a fair process as far as possible.

A Self-Determination Fund will be managed by the First Peoples' Assembly. Its role is to empower First Peoples by providing resources to support Traditional Owners entering Treaty Negotiations.


Update: The Parties have committed to releasing regular updates on their negotiations. Two updates have been released so far:

New South Wales
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NSW is in the early stages of treaty.

In late 2024, it appointed three Treaty Commissioners who will undertake a 12-month consultation process with Aboriginal people and communities across the State to understand their desire for a treaty or other formal agreement, and what form it might take. 

The consultation process began in early 2025. 

Key documents on the NSW Treaty process are available below:

Queensland
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The Queensland Treaty process was abandoned in 2024 following the election of the Liberal-National government.

The new government repealed the Path to Treaty Act 2023. This meant that work towards establishing the First Nations Treaty Institute ceased, and the Truth-telling and Healing Inquiry (which had commenced on 1 July 2024) was concluded. 

Key documents on the Queensland Treaty process are available below:

 

South Australia
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There have been two separate processes aimed at reaching Treaty in South Australia. 

2016-2018

South Australia was the first jurisdiction in Australia to formally commence negotiations with Aboriginal nations on Treaty. In 2018, the State Government reached preliminary agreement with the Narungga Nation and the Ngarrindjeri Regional Authority committing both parties to enter treaty negotiations. These talks were abandoned following a State election in 2018. 

2022- present 

In March 2022, the Labor party returned to government. The new Premier committed his government to delivering a state based voice, treaty and truth for Aboriginal people. So far the focus has been on Voice. 

In 2023, the Parliament enacted the First Nations Voice Act 2023. The Act establishes a representative body for First Nations in South Australia. The Voice may address the SA Parliament and meet Cabinet at least two times per year. The first elections for the Voice were held in March 2024. In April 2025, members of the Voice noted that they believe the government takes their views seriously, but have raised concerns over the model and funding levels. No announcement on a revived treaty process has been made.

Key documents on the South Australian Treaty process are available below: 

Western Australia
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The Western Australian Government has not made any formal commitment to treaty. 

However, in recent years it has negotiated two comprehensive native title settlements. The Noongar and Yamatji Settlements are sometimes likened to a ‘lower-case t treaty’, in view of the size and scope of the agreements. However, while they are significant, they were not negotiated via a formal treaty process and therefore do not cover the full range of issues one would expect of a treaty.

Tasmania
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Tasmania kick-started a process towards Treaty in 2021, when it appointed former Governor Kate Warner and law professor Tim McCormack to consult with the Aboriginal community on a path to treaty. 

However, progress has since been slow. An Aboriginal Advisory Group (AAG) was established in December 2022, and it held its first meeting in February 2023. The Tasmanian Aboriginal Centre declined an invitation to join the AAG and has established its own 11-member delegation called tuylupa tunapri. The AAG has explained it will ‘seek community consultation on a prospective pathway to truth-telling and treaty’. Those consultations are ongoing. The AAG will deliver its final report to the Government in mid-2025.

In the meantime, tuylupa tunapri has drafted its own Treaty Bill.

Key documents on the Tasmanian Treaty process are available below: 

Australian Capital Territory
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The Treaty process in the ACT appears to have been paused. 

The ACT Government first declared it was open to talking treaty in 2018. In 2022, the government facilitated a conversation with Aboriginal people in the Territory about what treaty means in the ACT and what a treaty process will look like. A report into that consultation was released in June 2022. It was not well received. The government apologised in July 2022, noting that the process did not engage as broadly as it should have. Two key developments have occurred in the following years.

  1. The Ngambri peoples filed a claim in the ACT Supreme Court alleging that the governments Indigenous Protocol which recognised only the Ngunnawal as the Traditional Custodians of the ACT breaches the Human Rights Act 2004 (ACT). A settlement was reached prior to a hearing date. The government has agreed to review their policy.
  2. A group of Ngunnawal Traditional Owners announced their intention to lodge a native title claim in the ACT – the first for more than 20 years.

Key documents on the ACT Treaty process are available below: 

  • Karabena Consulting, Implementation Pathways to Achieve Ngunnawal, First Nations Peoples and Australian Capital Territory Government Treaties (Report, June 2022)
  • Rachel Stephen-Smith, ‘Statement: Receipt of Karabena Consulting Report “Implementation Pathways to Achieve Ngunnawal, First Nations Peoples and Australian Capital Territory Government Treaties”’ (Media Release, Australian Capital Territory Government, 7 July 2022)
  • Andrew Barr, Shane Rattenbury and Rachel Stephen-Smith, ‘Statement Regarding Supreme Court Matter’ (Joint Media Release, Australian Capital Territory Government, 27 April 2023) 

Northern Territory
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The NT Treaty process has been abandoned following a change of government in 2024. 

The process began in 2018, when Premier Michael Gunner signed the Barunga Agreement with the NT’s four Aboriginal Land Councils. The non-legally binding memorandum of understanding pledged the parties to work towards a treaty. In 2019, Mick Dodson was appointed the inaugural Treaty Commissioner and in 2020, the Treaty Commissioner Act was passed by the Legislative Assembly.

The Treaty Commissioner conducted a territory-wide consultation and released a Discussion Paper in June 2020. Dodson resigned in June 2021, and Tony McAvoy was appointed Acting Treaty Commissioner in December 2021. A final report was handed to government in March 2022. 

The government did not act on the report. In December 2022 it announced that the NT Treaty Commission would be abolished and a second consultation process would be led by a Treaty Unit within the Office of Aboriginal Affairs. No further announcements were made until the lead up to the Territory election in 2024. 

In 2024, the NT government explained that the process had been delayed because of the Voice referendum. The government revived a Treaty Working Group and held a symposium with the land councils in April 2024. In August 2024, the Country Liberal Party secured government, and the treaty process was formally abandoned. 

Key documents on the NT Treaty process are available below: 

  • Barunga Agreement (Memorandum of Understanding, 8 June 2018)
  • Treaty Commissioner Act 2020 (NT)
  • Northern Territory Treaty Commission, Commissioner's Update (No 1, March 2019); (No 2, August 2019); (No 3, November 2019)
  • Northern Territory Treaty Commission, Interim Report (Report, March 2020)
  • Northern Territory Treaty Commission, ‘Treaty Discussion Paper’ (Discussion Paper, 30 June 2020)
  • Northern Territory Treaty Commission, Towards Truth Telling (Report, 12 February 2021).
  • Northern Territory Treaty Commission, Final Report (Report, 29 June 2022)
  • Northern Territory Government Office of Aboriginal Affairs, ‘NT Government Response to NT Treaty Commission’s Final Report’ (Press Release, 29 December 2022) 

Publications

This ARC funded project has led to a number of publications listed below. Please reach out to Harry Hobbs at h.hobbs@unsw.edu.au if you are unable to access these sources.

 

  • Harry Hobbs, ‘Taking Stock of Indigenous-State Treaty-Making in Australia: Opportunities and Challenges’ (2024) 47(2) UNSW Law Journal 548-588
  • Harry Hobbs, ‘Anticipating and Weathering Challenges to Modern Treaties in Australia’ (2024) 35(4) Public Law Review 318
  • Harry Hobbs, ‘Protecting Sacred Sites’ (2024) 46(4) Sydney Law Review (Advance Online)
  • Harry Hobbs, ‘Treaties and Modern Agreements with Indigenous Peoples’ in Mattias Åhrén et al (eds), Oxford Handbook on Indigenous Peoples and International Law (Oxford University Press, 2024)
  • Stephen Young and Harry Hobbs, 'The Concerning Intersections of Sovereign Citizen and Indigenous Sovereignty Claims' (2025) 48(3) UNSW Law Journal (forthcoming)

 

The project has also formed the basis for shorter commentaries, submissions to parliamentary inquiries, and media engagement. For a selection of these activities see: 

Project team

Earlier Publications

Earlier work on treaties and treaty-making that has informed this project can be found below. Please get in touch with Harry at h.hobbs@unsw.edu.au if you cannot access these resources. 

Books

  1. Harry Hobbs, Alison Whittaker and Lindon Coombes (eds), Treaty-Making 250 Years Later (Federation Press, 2021)
  2. George Williams and Harry Hobbs, Treaty (Federation Press, 2nd ed, 2020)

Book Chapters

  1. Stephen Young and Harry Hobbs, 'Treaty-Making: Critical Reflections on Critiques from Abroad’ in Harry Hobbs, Alison Whittaker and Lindon Coombes (eds), Treaty-Making Two Hundred and Fifty Years Later (Federation Press, 2021) 156-178
  2. Harry Hobbs, ‘Self-Determination and Treaty-Making’ in Melissa Castan and Paula Geber (eds), Contemporary Perspectives on Human Rights Law in Australia (Thomson Reuters, 2nd ed, 2021) 353-372

Journal Articles 

  1. Harry Hobbs (ed), ‘Special Issue on the Aboriginal and Torres Strait Islander Voice’ (2023) 34(2) Public Law Review 93-172
  2. Harry Hobbs, ‘The New Right and Aboriginal Rights in the High Court of Australia’ (2023) 51(1) Federal Law Review 129-154
  3. Shireen Morris and Harry Hobbs, ‘Imagining a Makarrata Commission’ (2022) 48(3) Monash University Law Review 19-64
  4. Dani Larkin, Harry Hobbs, Amy Maguire and Dylan Lino, ‘Aboriginal and Torres Strait Islander Peoples, Law Reform and the Return of the States’ (2022) 40(1) University of Queensland Law Journal  35-58
  5. Harry Hobbs and Benjamin Jones, ‘Egalitarian Nationhoods: A Political Theory in Defence of the Voice to Parliament in the Uluru Statement from the Heart’ (2022) 57(2) Australian Journal of Political Science 129-144
  6. Harry Hobbs and Stephen Young, ‘Modern Treaty Making and the Limits of the Law’ (2021) 71(2) University of Toronto Law Journal 234-273
  7. Harry Hobbs, ‘A Queensland Treaty: Current Steps and Potential Challenges’ (2020) 45(1) Alternative Law Journal 25-30
  8. Harry Hobbs and George Williams, ‘Treaty-Making in the Australian Federation’ (2019) 43(1) Melbourne University Law Review 178-232
  9. Harry Hobbs, ‘Treaty Making and the UN Declaration on the Rights of Indigenous Peoples: Lessons from Emerging Negotiations in Australia’ (2019) 23(1-2) International Journal of Human Rights 174-192
  10. Harry Hobbs, ‘Aboriginal and Torres Strait Islander Peoples and Multinational Federalism in Australia’ (2018) 27(3) Griffith Law Review 307-336
  11. Harry Hobbs, ‘Constitutional Recognition and Reform: Developing an Inclusive Australian Citizenship through Treaty’ (2018) 53 Australian Journal of Political Science 176-194
  12. Harry Hobbs and George Williams, ‘The Noongar Settlement: Australia’s First Treaty’ (2018) 40 Sydney Law Review 1-38