Treaty Now? A critique of the state treaty process.
The NSW State Government’s Treaty process is another colonial project designed to entrench control. It follows the same pattern as the Voice to Parliament referendum: managed from the top down, deliberately misleading, and structured to silence critical Indigenous voices while manufacturing an image of consent. What is being advanced is not Treaty but state assimilation, masquerading as progress.
During the Voice to Parliament referendum, whistleblowers revealed serious manipulation by the Australian Electoral Commission’s subcontractor, McNair Yellow Squares. Staff were instructed to miscode survey responses — reporting inner-city responses in Sydney as if they came from regional and remote communities — in order to manufacture a false impression of widespread Indigenous support.¹ Following the exposure, the AEC halted McNair’s involvement pending investigation.² This was not an innocent oversight, but a coordinated effort to control the narrative and project manufactured legitimacy.³
Megan Davis, a constitutional law expert and architect of the Uluru Statement from the Heart, admitted in a Press Club address that Indigenous leaders who were cynical or critical of the government's approach were excluded from key consultations.⁴ This frank admission confirms that dissenting Indigenous voices were deliberately removed from public deliberation.
At regional Voice consultations, local community members — people directly tied to the lands and struggles at stake — were barred from entry. In some cases, they were forcibly removed, with police called in to enforce exclusion.⁵’⁶ These actions turned consultations into performances focused on optics rather than genuine participation.
Now, the NSW Treaty process is repeating the same patterns. Consultation events are announced with barely a week’s notice, publicised only via obscure social media channels with minimal reach, while official websites are not updated and email subscribers have not received correspondence. This ensures attendance remains limited to favourable participants and effectively silences dissent.
But control goes deeper than mere publicity. The government is choosing to consult through Body Corporates, land councils, and other bureaucratic entities that rely on state funding and oversight.⁷ These are not sovereign, independent voices. By structuring the process this way, the government is effectively negotiating with entities beholden to its funding and mandates — negotiating with itself, not with free peoples.
In practice, what is being presented as consultation is a tightly managed exercise in defining who speaks, what can be said, and which voices are even visible. There is no space here for broad-based, grassroots debate or challenge. The people are told that participation equals consent—but what they are actually being offered is complicity.
Free, Prior and Informed Consent (FPIC) is not a symbolic phrase. It is an internationally recognised right of Indigenous peoples under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), binding on states that claim to uphold international law.
Article 19 of UNDRIP is explicit: governments must obtain FPIC before adopting any measures that affect Indigenous peoples.⁸ Consent must be free of coercion, prior to decisions being made, and informed by full disclosure of both benefits and risks.
The NSW Treaty process violates every one of these principles. It is not free, because it is being carried out under the authority and control of the very state that occupies Indigenous lands. It is not prior, because the government has already decided the framework, legislation, and limits of what it will call “Treaty.” It is not informed, because communities are not given a balanced presentation of the potential consequences, risks, and disadvantages. Instead, Treaty is portrayed only as a positive development, and voices that question or critique the process are excluded.
The top-down structure itself ensures that FPIC is impossible. The state sets the agenda, dictates the consultation framework, and controls the flow of information. There is no independent mechanism for Indigenous peoples to weigh the pros and cons, and no guarantee that communities can access impartial information free from government spin. A process that is wholly designed, financed, and managed by the state cannot be called consent.
The NSW Government insists on calling this process a “Treaty,” but what is being advanced is nothing more than state legislation. Any agreement produced under this framework will take the form of an Act of State Parliament. That means it can be amended, suspended, repealed, or reinterpreted at any time by the government of the day. A genuine Treaty is a binding agreement between sovereign entities with recourse under international law. State legislation does not carry that status. It remains fully within the control of the colonial parliament, which can undo it at will.
The legal structure exposes the lie. The NSW Government does not recognise Indigenous Nations as sovereign equals. Instead, communities are treated as domestic populations under Australian jurisdiction. By insisting that these “Treaties” exist only within the framework of state law, the government denies the fundamental political sovereignty of First Nations.
Even within Australia’s constitutional order, the limits are clear. Any sweeping changes to the structure or powers of the NSW Parliament — such as altering the Legislative Council to embed designated seats in Parliament or First Nation’s authority — would require a state-wide referendum. No such referendum has been proposed. That means the scope of any “Treaty” is confined to what Parliament already has the power to do. Far from a sovereign-to-sovereign agreement, this is simply the state making hollow promises to itself.
History shows what this looks like in practice. Previous frameworks like the Aboriginal Land Rights Act 1983 (NSW) and the Native Title Act 1993 (Cth) were celebrated as breakthroughs but quickly revealed their limits. Land rights claims were curtailed by strict eligibility tests, extinguishment clauses, and bureaucratic control. Native Title was gutted by the 1998 “10 Point Plan” amendments following the Wik decision, proving how easily governments can roll back rights when it suits them.⁹ Any state-based “Treaty” created under NSW law will be subject to the same vulnerability: whatever recognition is granted today can be stripped away tomorrow.
There is also a material dimension. These processes often become tied to economic and resource exploitation. Rather than halting land theft, pseudo-Treaties create frameworks where extraction and development are rubber-stamped under the guise of agreement. In this way, “Treaty” becomes another tool for legitimising dispossession.
The contrast with Aotearoa and Turtle Island is important. In both New Zealand and North America, Treaties were originally signed as agreements between sovereign entities and the colonial powers. They carried much stronger weight and authority than what is being proposed in New South Wales. Yet even those Treaties have been repeatedly broken, ignored, or undermined without appropriate compensation or recourse. Their histories reveal that even when agreements are struck on more equal terms, colonial states are quick to abandon them when they conflict with settler interests.
Colonial courts have further entrenched this betrayal. In Canada, the United States, and New Zealand, Treaties have consistently been redefined as “domestic agreements,” stripped of their standing in international law.¹⁰ This interpretation allows the colonial state to both claim the legitimacy of having made a Treaty, while simultaneously denying Indigenous Nations any pathway to enforce those agreements on the global stage. NSW’s proposal falls far short even of this flawed precedent. What is being offered is not a Treaty in any sense — historical, legal, or political — but the continuation of colonial domination under another name. Unlike those historical Treaties, the NSW process does not even offer the appearance of recognising Indigenous sovereignty, making it weaker and more cynical than the agreements struck in Aotearoa or across Turtle Island.
The NSW Government wants communities to believe it is approaching Treaty in good faith. Its record proves the opposite. For decades, Aboriginal people have called on state and federal governments to implement the recommendations of landmark inquiries. The 1991 Royal Commission into Aboriginal Deaths in Custody made 339 recommendations to address systemic racism and the conditions that lead to Black deaths behind bars. More than thirty years on, most of these recommendations remain ignored, and Aboriginal people continue to die in custody at rates higher than before the Commission.¹¹
The 1997 Bringing Them Home report detailed the widespread removal of Aboriginal children from their families and made 54 recommendations for healing, reparations, and structural change.¹² The vast majority have never been implemented. Instead, child removal rates have increased to record levels, with Aboriginal children now ten times more likely to be taken from their families than non-Indigenous children.¹³
If governments refuse to act on long-standing, life-and-death issues, there is no basis to trust that they will honour promises made in a so-called Treaty process. The evidence shows clearly: the state ignores binding recommendations, breaks its own commitments, and intensifies the harms it claims to address.
The betrayal is not historical; it is ongoing. Aboriginal people continue to die in police and prison custody. Child removals are accelerating. Sacred sites are desecrated with government approval. Land is taken for mining, forestry, and development against community opposition. The refusal to return land, to stop deaths, or to keep children with their families demonstrates the same contempt that will shape any state-managed Treaty process. The government has shown us who it is, and no one should be deceived into believing it has changed. If the state refuses to act on the clearest and most urgent reforms, its sudden interest in Treaty can only be understood as another mechanism of control.
First Nations people must confront these state-managed consultations head on. Wherever they are staged, communities should raise their opposition, expose the dishonesty, and refuse to be co-opted into a process designed to entrench colonial control. Silence will be presented as consent, and consent will be weaponised against us. It is essential that dissent is voiced loudly and publicly.
For settlers and progressives, the choice is equally clear. During the Voice to Parliament referendum, many who called themselves allies ignored the warnings of sovereign Indigenous leaders and chose instead to side with the Yes campaign. They claimed that rejecting the Voice meant “voting with racists,” even as they dismissed or abandoned the Progressive No campaign and left Indigenous dissenting voices isolated. By prioritising their own feelings over Indigenous sovereignty, they chose complicity with both the colonial state and the racist No campaign.
That mistake cannot be repeated. In the face of this new Treaty process, settlers must stand with Aboriginal sovereignty, not with the state. Solidarity cannot mean endorsing assimilationist frameworks or applauding symbolic gestures while colonial violence continues unchecked. It must mean active opposition to processes that are designed to deny sovereignty and consolidate occupation.
Every government-led attempt to manage us through advisory bodies, pseudo-Treaties, or empty reforms has one aim: to neutralise resistance and legitimise control. The responsibility of all who claim to support justice is to refuse that project. Real solidarity requires standing with First Nations against the colonial state, rejecting its sham processes, and insisting that sovereignty is not something to be negotiated, but something to be lived and defended.
References
1.The Guardian, “Firm hired by AEC accused of fabricating data during Indigenous Voice campaign,” 20 August 2024.
2.The Guardian, “AEC suspends contractor accused of falsifying Voice referendum data,” 22 August 2024.
3.The Guardian, “AEC contractor accused of falsifying Voice referendum survey data,” 5 November 2024.
4.IN FULL: Megan Davis & Pat Anderson AO, Address to the NPC on the Uluru Statement from the Heart, National Press Club of Australia, ABC TV, originally broadcast 9 November 2022, YouTube video, 21:03, published by ABC News (Australia), https://www.youtube.com/watch?v=lVVt1qfjwfY.
5.Sovereign Union Volunteers, “Detailing the Flaws and the Farce of the Referendum Council’s 2017 Sydney ‘Dialogue’,” Sovereign Union, First Nations Asserting Sovereignty, 22 March 2017, accessed 17 August 2025, https://nationalunitygovernment.org/content/detailing-flaws-and-farce-referendum-councils-2017-sydney-dialogue.
6. Sovereign Union, “Formal Complaint against Referendum Council Dialogue Processes & National Convention at Uluru,” PDF, 18 May 2017, https://nationalunitygovernment.org/pdf/2017/170518F-SU-REF%20Council-OMBUDSMAN.pdf.
7. Observation on Body Corporates and government-funded entities being used — analytical summary based on the process structure and existing critiques.
8. United Nations, United Nations Declaration on the Rights of Indigenous Peoples, Article 19.
9. Aboriginal and Torres Strait Islander Commission, Submission on the Native Title Amendment Bill 1997 (criticising the “10 Point Plan” rollback of Native Title rights). See also: Human Rights and Equal Opportunity Commission, Native Title Report 1998.
10. See: R v Symonds (1847, NZ), Tee-Hit-Ton Indians v. United States (1955, US), R v. Sparrow (1990, Canada) — examples of courts interpreting Treaties or Indigenous rights as domestic matters under settler law, not binding international agreements.
11. Commonwealth of Australia, Royal Commission into Aboriginal Deaths in Custody: National Report (1991). See also: Productivity Commission, Closing the Gap Information Repository: Deaths in Custody
12. Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997).
13. Australian Institute of Health and Welfare, Child Protection Australia 2021–22, showing Aboriginal children are removed at ten times the rate of non-Indigenous children.