Modern treaty making and the limits of the law

Abstract

In recent years, several Australian states have formally committed to treaty negotiations with the First Peoples whose traditional lands they claim. The emerging treaty processes in Australia build on both the comprehensive land claim agreements currently under negotiation in Canada as well as the historic treaties struck between First Peoples and colonial powers in North America and Aotearoa / New Zealand. Parties engaged in these negotiations appropriately view treaties as mechanisms through which First Peoples and non-Indigenous political communities can settle ongoing tensions surrounding political autonomy, citizenship, and pluralism. However, it is not clear whether these processes can produce such outcomes. In this article, we contend that, although fairer processes of negotiation may avoid some of the problems of historic treaties, modern treaty making in Canada, Australia, and elsewhere will fail to meet the parties’ aspirations unless greater attention is paid to building relational characteristics. We do so by outlining the promises and perils in modern treaty making with an eye toward understanding the limits of the law.