Victoria has become the first state or territory in Australia to introduce a treaty to its parliament, which promises to empower Victoria’s First Peoples. Co-chairs of the First Peoples Assembly Ngarra Murray and Ruben Berg exchange gifts with Victorian Premier Jacinta Allan during Treaty negotiations. (Image: AAP/Justin McManus)

New Zealand is on the international fringe when it comes to Indigenous rights, argues Professor Dominic O’Sullivan.  

This month, the Victorian government introduced its Statewide Treaty Bill into parliament. And once again, New Zealand is exposed as an international outlier in Indigenous rights.

As New Zealand’s government continues policies that diminish Te Tiriti o Waitangi and the distinctive Māori voice in public life, Victoria has become the first Australian state to negotiate a treaty with its First Nations peoples.

Victoria’s 34-page treaty, which is almost certain to pass, is grounded not only in negotiations between the parties, but also in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Meanwhile, Canada and British Columbia have already passed legislation to give effect to UNDRIP, affirming its simple principle that human rights are universal and belong to Indigenous peoples as much as anyone else.

But New Zealand is no longer working on how the Declaration might be implemented.

Treaties, recognition and legitimacy

Te Tiriti o Waitangi recognised the British Crown and Māori hapū as legitimate political actors. Colonisation came afterwards as the terms of the agreement were repeatedly breached. By contrast, Victoria hasn’t previously recognised the political standing of those it now calls First Peoples.

Victoria’s statewide treaty will ensure that First Peoples contribute, as a matter of course, to public policy-making. It will recognise that the traditional Westminster presumption that government is accountable to the people, through parliament, simply hasn’t worked, and can’t work, for a population that is too small to have distinctive and representative voices in parliament or government.

The weight of numbers means they can only be elected by other people and to represent other people, in a parliament they had no say in forming or legitimising.

The proposed treaty, by contrast, is the outcome of democratic deliberation by First Peoples, among themselves and with the Victorian state.

If we consider this move in New Zealand terms, it means that a distinctive and substantive place for Indigenous people in kāwanatanga, or government, is being proposed for the first time.

The “rangatiratanga” of the First Peoples is foreshadowed as a principle to be worked out over time. This could occur through future treaties — the current one is proposed as the first of a number — or it could occur through agreements to transfer policy decision-making and implementation from the state to the elected First Peoples Assembly.

These agreements could be akin to the Māori Health Authority or the shift towards greater Māori responsibility for the care and protection of children in out-of-home care — both of which have since been abolished or repealed by the current New Zealand government.

Such measures would help bring Victoria from the fringe to the mainstream of international political thought, as UNDRIP expresses it.

Gellung Warl — making government work

Te Tiriti granted British subjecthood to Māori, a promise that was grounded in an understanding of cultural equality. Today, this principle continues to evolve as New Zealand citizenship. It also continues to be challenged by measures like the banning of bilingual road signs and the removal of Māori words from primary school reading material.

UNDRIP assumes that culture matters in public policy, and although not always to the extent that some people think is just, this was an idea becoming increasingly common in New Zealand until the change of government in 2023.

The simple philosophy that government should work equally well for everyone, and that everyone should have a say in deciding exactly what that means, is what the treaty intends to bring to life in Victoria.

The treaty will establish Gellung Warl, which means “tip of the spear” in the Gunaikurnai language.

Gellung Warl will comprise:

• The First Peoples’ Assembly of Victoria (an elected, independent body)
• Nginma Ngainga Wara (a research and evaluation body to hold the government to account)
• Nyerna Yoorrook Telkuna (a truth-telling commission, which will continue the work of the Yoorrook Commission)

Gellung Warl will sit outside government but be part of Victoria’s democratic fabric. The Assembly will make an annual address to parliament, and meet regularly with cabinet, ministers, senior officials, and the police commissioner. It will be able to submit written questions to ministers at any time and contribute to decision-making on any matter it chooses.

Every bill introduced into parliament must include a Statement of Treaty Compatibility, which must say whether, in the opinion of the member introducing the bill, it is consistent with:

• advancing the inherent rights and self-determination of First Peoples,
• addressing the unacceptable disadvantage inflicted on First Peoples by the historic wrongs and ongoing injustice of colonisation, and
• ensuring the equal enjoyment of human rights and fundamental freedoms by First Peoples.

This is the kind of specificity that New Zealand First says is lacking in New Zealand’s statutory references to Treaty principles. If the party’s critique came from a concern for creating legislation that works equally well for Māori, then our parliament could consider Statements of Compatibility as alternatives because their clarity is likely to make them effective. However, in New Zealand, the concern appears to be with shutting Māori out of the benefits that legislation is supposed to create for others.

Gallung Warl’s measures don’t guarantee self-determination for First Peoples. The recognition of their independent authority is still being worked out. But they show the potential for government to work more effectively by ensuring First Peoples have a say in setting the agenda. They show how and why culture and colonial experiences matter in public policy.

Unlike Te Tiriti, Gellung Warl can be abolished by future legislation. Perhaps, then, it is an overstatement to describe it as the product of a treaty. But unlike Te Tiriti, it is an agreement proposed more than 200 years into the colonial project. It is an example of democratic flexibility. It responds to the idea that democracy’s purpose is not to exclude but to find fair and reasonable ways of bringing different voices into the decision-making process.

Citizenship — a share in decision-making authority

Citizenship is about who belongs and who does not. Its primary purpose is not to tell us what services we should expect from the state, but to tell us who has a voice in deciding what the state is exactly. Te Tiriti says that Māori should raise their voices as equal citizens with their tikanga intact.

Citizens decide what the state does and what it leaves for others — for example, what it leaves for rangatiratanga. By contrast, partners of the state, as Māori people sometimes like to think of themselves, may have an opinion, but don’t share the authority to make decisions. At this stage, Gelling Warl won’t have that authority either, but the intention to negotiate it is clear.

Alongside rangatiratanga, distinctive citizenship offers New Zealand a path back towards the international mainstream as UNDRIP sets out:

“Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.” — Article 5.

Gelling Warl’s specific details come from a different place, cultures and colonial experiences. Potentially, and in their context, they are radically transformative. In general terms, they set out principles concerned with what it means to be a citizen and what it means for a state to take seriously the Indigenous right to self-determination.

New Zealand would do well to pay close attention to understand just how far it has moved towards the fringe of international political thought.

Dominic O’Sullivan (Te Rarawa and Ngāti Kahu) is a professor of political science at Charles Sturt University, Adjunct Professor at the Auckland University of Technology and Victoria University of Wellington. Dominic is the author of eight books, most recently Indigeneity, Culture and the UN Sustainable Development Goals. (Singapore Palgrave Macmillan, 2023)

E-Tangata, 2025