I could be wrong but I think that Australia is the only member of the Commonwealth of Nations which has no formal treaties with its first peoples. Canada has the Numbered Treaties with various first people groups, New Zealand has the Treaty Of Waitangi, but Australia which began as an exclusionary and overtly racist nation, has never bothered to.
I have heard all sorts of objections as to why Australia should not make a treaty with its first peoples but invariably those arguments all collapse back into racism and weird cries for equality which seek to deny the very existence of the past.
On the other side of the coin, the fact that Australia might be able to enter into treaties with first peoples actually implies that first peoples are forced to recognise the legitimacy of the government system that dispossessed them of their sovereignty in the first place. This has never been explored at law and the closest that any case ever got to it was Mabo v Queensland No.2 (1992) [HCA] which conceded that first peoples' sovereignty was never ceded. I do not know what implications that a treaty system between the Commonwealth of Australia and the various first people groups has at law and I can imagine that it would put first peoples at a potentially compromised position federally.
All of that aside, apart from the question of whether or not the Commonwealth of Australia should make a treaty with first peoples, there is the question of whether or not it actually can make such a treaty. I think that it can.
Just like there is no mention of the position of the Prime Minister in the Australian Constitution (or if there even needs to be one), there is also no mention at all of any treaty making provisions within the Australian Constitution either.
The sole piece of law that actually relates to how treaties are agreed to, ratified, concluded, or agreed upon, is R v Burgess ex parte (1936) [HCA]; which is where a pilot wanted to take the Australian Government to court, to fight a ruling which prevented him from flying his plane while unlicensed, underneath the Sydney Harbour Bridge.
The regulations which prevented him from flying unlicensed, related to Aircraft Navigation Act (1920); which authorised the
Governor-General to make regulations to give effect to the Convention for the Regulation of Aerial Navigation.
Mr Henry Goya Henry challenged the Constitutional validity of the regulations and argued that it violated both the trade and commerce power in s.51(I) and the external affairs power in s.51(xxix), of the Constitution.
The Court held that treaty making powers should be held by the Commonwealth as a sovereign nation and that "The implementation of an international treaty is valid where the treaty is bona fide and the subject matter is of international concern."
Thus, the ability to ratify, make, conclude, or agree to international treaties is an executive matter; which is still within the powers of the Governor-General and provided for by s.61.
That is a very long winded way of saying that the Constitution which says nothing about treaties, can still give rise to powers which are necessary and useful.
That answers the question of whether or not the Commonwealth can make treaties with other nations and international bodies as nation states in congress but it still says nothing about whether or not it can make treaties with peoples living within its own borders.
I suggest that although the Governor-General generally acts upon the advice of the parliament, any advice which comes from the parliament is merely that.
http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s61.html
"The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."
- Section 61, Constitution of Australia Act (1900)
Generally speaking, the text of treaties are negotiated and finalised; the relevant text is then tabulated and the approval of relevant Ministers and the Executive Council for Australia to enter into the treaty is sought; the treaty is then and scrutineered by the parliament by Joint Standing Committee on Treaties (JSCOT); and any other steps, such as passage of any implementing legislation, required to enable entry into force of the treaty.
None of this process is different in principle from the passage of any other bill into legislation before the parliament. The parliament very obviously has the power to make laws for the peace, order, and good government of the Commonwealth per Section 51 and if the power to make treaties lies with Governor-General per Section 61, which makes no statement about treaties at all, then I conclude that it is impossible to say that the Crown through the executive of the Governor-General can not make treaties with peoples living within its own borders.
I see no limit, no disability at law, and no logical reason why either the Commonwealth of Australia or the States can not make, ratify or conclude treaties with first peoples, or anyone else they jolly well feel like for that matter. The only obstacles that I see, are all founded in racism and the maintenance of power by those who already posses it.
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