Victoria's treaty with Indigenous peoples must address vexed questions of sovereignty

The Victorian parliament has become the first in Australia to pass legislation to begin treaty negotiations with Indigenous peoples. It follows the Northern Territory government making a similar commitment, though not through legislation, and the New South Wales opposition promising to do the same if it wins next year’s election.

The New South Wales Aboriginal Land Council has set out its minimum expectations that treaties would be:

a practical way for New South Wales to deepen Aboriginal participation in the economy.

However, in South Australia, the new government has“paused” its predecessor’s commitment to treaty negotiations. Liberal Premier Steven Marshall fears treaties being no more than a “cruel hoax”, because he believes treaties won’t secure any economic benefits for Indigenous peoples. Instead, he prefers “practical outcomes” over “symbolic actions”.

Read more: Indigenous treaties are meaningless without addressing the issue of sovereignty

He may be correct. But only if the essential relationships between the practical and symbolic are ignored, and that seems unlikely in Victoria. The Victorian legislation stresses the relationship. It establishes a representative body to lead negotiations and presumably pursue ideas already advanced by Indigenous people in Victoria.

Mick Harding, a Taungurung man from Kulin country and co-chair of the treaty working group believes it is:

about identity… about us being the silent people in the street and switching off that silence and us becoming relevant in our own country.

Treaties in Victoria are, then, a potentially important parallel to the proposal for a constitutionally enshrined Indigenous voice to the federal parliament, as outlined in last year’s Uluru Statement from the Heart.

That proposal has been strongly opposed by Prime Minister Malcolm Turnbull, but is essential to contemporary Indigenous political priorities. It also seems to be a proposition with significant community support.

However, treaties are not a panacea for recognising Indigenous claims on the state. The Treaty of Waitangi in New Zealand and numerous modern treaties in Canada make important public policy contributions, but they have not secured political, economic or cultural equality. Nor are they politically simple.

Indeed, the debate in the Victorian parliament provided important insights into the political and constitutional controversies and complexities that lie ahead for both the government and the representative body that is to be established. Opposition Leader Matthew Guy argued treaties were more properly the domain of the Commonwealth.

The Greens, who wanted parliament to recognise that Indigenous people had not ceded their sovereignty, nor their right to self-determination, unsuccessfully moved 42 amendments to the legislation.

The opposition’s concern is easily dismissed. Colonisation is an ongoing process seen in acts and policies of the Commonwealth since it received the authority to intervene in Indigenous affairs in 1967.

Read more: After Uluru, we must focus on a treaty ahead of constitutional recognition

However, the initial disruption to Indigenous societies was caused by colonial governments. Those first acts of aggression are the basis for what has followed. Recognising that is the essential preliminary step towards the non-colonial relationships that treaties with the Commonwealth might seek. The arguments for treaties with the federal government are subtly different.

The questions of sovereignty that the Greens raised are more complex and controversial. Much of the controversy stems from overstated assumptions of what sovereignty means. In practical terms, sovereignty is not the absolute, indivisible and incontestable power that Thomas Hobbes made it in Leviathan. Sovereignty is not an authority that has to belong either exclusively with the Crown or exclusively with Indigenous nations.

Nor is it, as the former New Zealand Prime Minister and constitutional scholar Geoffrey Palmer insisted in the context of Maori claims against the state, a term that is:

more like a piece of chewing gum. It can be stretched and pulled in many directions to do almost anything. Sovereignty is not a word that is useful and it should be banished from political debate.

Indigenous Victorians think the concept important enough to assert that they never surrendered it. While the Victorian parliament thinks it important enough to refuse to concede the Indigenous point.

Sovereignty, with all its interpretations and misinterpretations, is the point on which disagreement is most likely to occur. It is the source of the disagreements most likely to expose irreconcilable differences as the negotiations proceed.

If sovereignty wasn’t ceded, a strong moral argument is created for treaties to contain measures of significant political authority for Indigenous parties. It is an authority that will clash with the parliament’s power to repeal the legislation rather than give away more than it considers appropriate in a treaty.

Sovereignty is a type political authority. But it is relative and relational to the political authority of others. If all peoples are entitled to self-determination and there are further rights that belong to people due to prior occupancy, and if those rights were never voluntarily surrendered, there must be, at least morally, a significant Indigenous authority to constrain the sovereignty of the Crown.

This is a political tension that successful treaty negotiations will have to resolve. Each party will have to accept the other’s legitimacy; that their own power is not absolute and unconditional. This is a concept that the colonial state has never before considered.

At the same time, Indigenous peoples have never had to consider what it would take for them to accept the legitimacy of the state. If neither party is willing to accept the “cruel hoax” that Steven Marshall fears in South Australia, they will have to resolve these tensions.