Treaty-Making in the Australian Federation

55 Pages Posted: 21 Aug 2019 Last revised: 30 Sep 2019

See all articles by Harry Hobbs

Harry Hobbs

University of Technology Sydney, Faculty of Law

George Williams

University of New South Wales (UNSW) - Faculty of Law

Date Written: August 19, 2019

Abstract

For many generations, Aboriginal and Torres Strait Islander peoples have called for treaties to be negotiated with Australian governments. In the face of Commonwealth inaction, states and territories have commenced treaty processes with Indigenous communities whose traditional lands fall within their borders. This article examines how the United States and Canada have negotiated treaties with Indigenous peoples and details the ongoing Australian processes in order to determine the most appropriate means of entering into treaties in the Australian federation. It concludes that while the state and territory processes are positive and offer the potential to realise valuable outcomes, it is preferable for treaties to be conducted with both federal and subnational governments. This should be undertaken by a Makarrata Commission comprising representatives of Aboriginal and Torres Strait Islander communities and federal, state, and local governments.

Keywords: treaty, Indigenous, Aboriginal and Torres Strait Islander, First Nations, constitutional law, Canada, United States, Federation, Federalism

Suggested Citation

Hobbs, Harry and Williams, George, Treaty-Making in the Australian Federation (August 19, 2019). Melbourne University Law Review, Vol. 43, No. 1, 2019; UNSW Law Research Paper No. 19-76. Available at SSRN: https://ssrn.com/abstract=3439133

Harry Hobbs (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

George Williams

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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