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'Treaties', 'Agreements', 'Contracts' and 'Commitments' - What's in a Name? The Legal Force and Meaning of Different Forms of Agreement Making

Balayi: Culture, Law and Colonialism, Vol. 7, pp. 6-40, 2005

U of Melbourne Legal Studies Research Paper No. 134

36 Pages Posted: 4 Oct 2005  

David Llewelyn

Melbourne Law School; Singapore Management University - School of Law

Maureen Tehan

Melbourne Law School

Date Written: October 2004

Abstract

The multi-dimensional nature of treaty and agreement making has assumed a central focus in the conduct of relations between Indigenous peoples and settlers in Australia and elsewhere. Whether as a means of resolving disputes, delivering government programmes, or establishing common understandings, agreement making, however defined and named, has become the key tool for engagement between Indigenous and non-Indigenous Australians. Agreements come in all shapes and sizes ranging from registered Indigenous Land Use Agreements (ILUA) to Statements of Commitment, Memorandums of Understanding and Regional Agreements. In other jurisdictions these may be called 'treaties'. This paper examines the plethora of agreements in Australia from the point of view of their enforceability,with particular reference to the categories of agreement and the status of the parties. The paper discusses various categories of agreement and the enforceability of each type. This discussion aims to provide practitioners and native title parties information to assist them choose the appropriate agreement type for their purpose, and to understand the language, meaning and consequences of particular agreements. The paper does not seek to provide an exhaustive legal analysis of the elements of each type of agreement. Rather, it highlights the significant characteristics of each type of agreement, including its common legal status and its most frequent applications. In doing so, the paper provides an accessible insight into the intersection between contract law and agreement making.

Keywords: enforceability, indigenous, treaty, agreement, contract, memorandum, commitment, land use, regional, Australia

JEL Classification: K00, K1, K11, K47

Suggested Citation

Llewelyn, David and Tehan, Maureen, 'Treaties', 'Agreements', 'Contracts' and 'Commitments' - What's in a Name? The Legal Force and Meaning of Different Forms of Agreement Making (October 2004). Balayi: Culture, Law and Colonialism, Vol. 7, pp. 6-40, 2005; U of Melbourne Legal Studies Research Paper No. 134. Available at SSRN: https://ssrn.com/abstract=815324

David Llewelyn (Contact Author)

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Singapore Management University - School of Law

55 Armenian Street
Singapore, 179943
Singapore

Maureen Tehan

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61 3 8344 6205 (Phone)
+61 3 9347 2392 (Fax)

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