Anticipating and Weathering Challenges to Modern Treaties in Australia

Abstract

Modern treaties between Indigenous communities and the State are promises by diverse political communities to reconcile competing claims though dialogue and mutual agreement. In this sense, they are constitutional in character. Giving legal effect to these promises, however, requires legislation, which allows one party to unilaterally revise or revoke the settlement. This is the treaty paradox. Although it is not possible to resolve the paradox, it focuses attention on efforts to ensure the durability of modern treaties. As negotiations commence in Victoria, this article examines the first decade of treaty-making in British Columbia, Canada, which was marked by significant political and legal contestation. Drawing on this case study it identifies two lessons for modern treaty-making in Australia. Ultimately, anticipating and weathering these challenges is key to the success of Australian treaty processes.