Treaty-Making in the Australian Federation

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, Canada, United States, federalism

JEL Classification: K33, K39