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Support is growing for scrapping the heavily government funded drive to recognise Aboriginal and Torres Strait Islander peoples in the Australian constitution, in favour of a treaty. A number of delegates at a meeting of the Referendum Council in Melbourne argued that the recognition campaign is a waste of resources. Aboriginal lawyer Michael Mansell said the $140m cost of holding a referendum on constitutional recognition should instead be put towards a campaign for a treaty, which he said would deliver real, tangible benefits compared with the largely symbolic benefits of recognition.

“If it comes to a choice, recognition can give you some words in the constitution, and if it gets up it will give you anti-discrimination protection … but what does that mean in terms of practical benefit for Aboriginal people?” Mansell told Guardian Australia.

“With a treaty you would get a land settlement, a sharing of power through allocated seats, and presumably a permanent national Aboriginal body. If that’s what the conditions of a treaty are, then the value to the Aboriginal people is much greater.”

Mansell said Aboriginal and Torres Strait Islander people should take the opposition leader, Bill Shorten, up on his election campaign promise to discuss a treaty – although Shorten said he saw a treaty as a follow-up, not a replacement to, constitutional recognition. A prominent Aboriginal educator, Chris Sarra, later invited the just barely re-elected conservative prime minister Malcolm Turnbull to sit down and discuss treaty with him, despite the prime minister saying talk of treaty was a “distraction”.

There is growing Aboriginal opposition to the recognition drive, seen as a fraudulent ruse to strip Aborigines permanently of their rights to land.

In the south eastern state of Victoria the Labor government has gone another step in treaty talks with Aborigines by starting the work of a “Treaty Interim Working Group”.

"This creation of the group was an outcome of the recent regional and state-wide forums focused on self-determination. This group will provide advice on the process and timing for treaty, guidance on community engagement and examining options for a permanent Victorian Aboriginal representative body. We understand that it’s not for us to decide what treaty or self-determination should look like. We know that action needs to come from the Victorian Aboriginal community." 

One of Australia’s top experts in political philosophy, Professor Duncan Ivison, wrote in the National Indigenous Times that people shouldn’t expect too much from Constitutional change.

He said it was an important step, but needed to be supported by something like a treaty between Indigenous Australians and the government.

“If you look around the world, in New Zealand you’ve got the Treaty of Waitangi that sets out a whole range of mechanisms and principles for how the Maori and the New Zealand State ought to frame their relations,” he said. “You also have political structures that reflect those principles.

“In Canada you have the constitutional recognition of Aboriginal rights in the Canadian constitution and then a structure of treaties that govern that relationship.

“There are all kinds of problems and challenges with each example. No one is probably 100 percent happy with all of that, but I think that is the kind of complex structure that ultimately the situation calls for in Australia.

“We want to see better health care, we want to see better employment outcomes, that’s not something a Constitution can provide so we need to reflect on how it works itself through our political system.”

“There’s a bit of a sting in the tail that comes with recognition and that is the recogniser has a lot of power,” he said. “If I’m someone seeking recognition I need that other person to grant me recognition.  Maybe we should flip that and say, ‘Well, maybe in this case it’s not so much the Indigenous peoples who need to seek recognition’. Maybe the State needs to justify its legitimacy to them rather than the other way around.”

Professor Ivison sees the need for a series of national and local initiatives to reach a just settlement between Aboriginal people and the State.

“There are two sorts of extreme views,” he said. “One view is, ‘Get over it. We’ve all got to get on with how to live together. There’s no issue here. Forget about it’.

“And there are people who will say the fact that settlers came here and unjustly appropriated and stole and essentially robbed Indigenous people of their land and communities means the State is irredeemable. There’s no way of making good on that history.

“I think we need to reject both of those views, but it means taking seriously how you can today, understanding what we know about the past, come up with a set of terms, a just settlement, between Aboriginal people and the State.”

In another pro-Aboriginal advance in Victoria, businesses that exploit indigenous knowledge or culture for commercial purposes without the consent of the traditional owners will be fined up to $1.5m under new Aboriginal heritage laws that come into force in Victoria on 1 August.  

It’s Australia’s first protection of intangible heritage, which can include stories, songs and dance, in Victoria’s amended Aboriginal Heritage Act.

Under the new provisions in the act a group of traditional owners or native title holders can apply to have a piece of intangible heritage, defined as “any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage” included on the Aboriginal heritage register.

It can include any cultural knowledge that is not widely known to the public, including oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts and environmental and ecological knowledge.

The legislation then makes it an offence to knowingly use any registered Aboriginal intangible heritage for commercial purposes without consent from the ownership group, with penalties of up to $280,000 for an individual or $1.5m for a corporation.

Victoria’s Aboriginal affairs minister, Natalie Hutchins, said the new laws protected heritage that was not adequately protected under existing intellectual property, copyright or patent laws, and gave Victoria’s first peoples more control over their cultural heritage.

“The influence of Aboriginal culture on Victorian society has not been properly acknowledged in our past, and it is important we recognise its value in the future,” she said. “Aboriginal people in Victoria will now be able to shape the nature of cultural heritage and control how their cultural knowledge is used by others.”