1 April 2021
What you need to know
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There has been progress over the last 12 months at the Federal level on developing an "Indigenous Voice" to provide advice to the Australian Parliament. The Federal government's position remains that Treaty making is an issue for the States and Territories.
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Momentum is building for Treaty negotiations in Victoria, Queensland, ACT and NT, where government is supportive of the process.
What you need to do
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Land users should be across the progress and scope of any local Treaty/regional settlement agreements.
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Watch out for opportunities to consult with Government on Treaty making and be ready to make submissions.
Reminder of background to Treaty in Australia
Australia continues to be the only Commonwealth country to never have signed a Treaty with its Indigenous people.
In our 28 April 2020 article Treaty making in Australia – Will the pieces of the puzzle come together?, we explained the concept of Treaty and set out how Treaty making was progressing in each State and Territory and at a Federal level.
Since, then, there has been progress at the Federal level on developing an "Indigenous Voice" to provide advice to the Australian Parliament. The Federal government's position remains that Treaty making is an issue for the States and Territories.
Progress towards a national Indigenous Voice
On 9 January 2021, Minister for Indigenous Australians, the Hon Ken Wyatt AM MP announced the next stage of the Indigenous Voice co-design process, publishing an Interim Report on the co-design process and inviting all Australians, particularly all 800,000 Indigenous Australians, to provide feedback on the Indigenous Voice proposals.
Indigenous Voice is not a new concept, with the Interim Report noting the calls for an Indigenous Voice date back to the 1800s. More recently, calls for Indigenous Voice were reflected in the May 2017 Uluru Statement from the Heart, including enshrining a First Nations Voice in the Australian Constitution.
These proposals were initially dismissed by the Federal Government. However, the 2018 Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander People (which was set up following the Uluru Statement from the Heart), recommended that the Federal Government commit to a co-design process to develop proposals to give Aboriginal and Torres Strait Islander peoples a say in the laws, policies and programs that affect them.
Consequently, in October 2019, the Federal Government announced the Indigenous Voice co-design process. The Interim Report was prepared by the Senior Advisory Group (chaired by Professor Dr Marcia Langton AO and Professor Tom Calma AO) and co-design groups, in conjunction with the National Indigenous Australians Agency. It has put forward proposals for a "National Voice Design" and a "Local and Regional Voice Design."
Under the current proposals, the National Voice would comprise a national body of up to 20 Aboriginal and Torres Strait Islander members, that could provide advice to the Australian Parliament and Government on relevant laws, policies and programs; and engage early with the Australian Parliament and Government in the development of relevant policies and laws.
Membership of the National Voice could be comprised of members selected from Local and Regional Voices, or alternatively elected directly by Aboriginal and Torres Strait Islander People.
Meanwhile, the Local and Regional Voice would be a regional level government structure, designed and led by communities. It would provide advice to all levels of government about what is important in communities and in the region. The current proposal suggests there would be 25 – 35 Local and Regional Voice regions across Australia, which would be structured differently according to community need.
Key matters that will be the subject of consultation under the Indigenous Voice include native title, race, racial discrimination and matters that significantly affect Aboriginal and Torres Strait Islander People.
However, under the current proposal, the Indigenous Voice will not become enshrined in the Australian Constitution (as called for in the Uluru Statement from the Heart), and will not provide members with any powers to veto laws in Parliament.
Treaty progress in Victoria
Of all Australian jurisdictions, Victoria is currently the most progressed in its Treaty discussions and provides an example of how Treaty may be developed.
In December 2019, the First Peoples' Assembly of Victoria (Assembly) was established to represent Aboriginal people in the development of a framework for Treaty negotiations. The Assembly is comprised of Aboriginal leaders who are all Traditional Owners, elected and appointed by their communities. The Assembly, through six dedicated committees (set out below), is working to establish key elements that will lead to Treaty negotiations:
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Treaty Authority and Interim Dispute Resolution Process Committee: which is responsible for engaging community across the state and leading the creation of a Treaty Authority and Interim Dispute Resolution Process. In February 2021, the Assembly and the State signed the Interim Dispute Resolution Process, which will apply to disputes between the Assembly and the State in the Treaty process, as well as disputes relating to the negotiating of the Treaty Authority, Treaty Negotiation Framework and Self-Determination Fund. The next step for this committee will be to establish the Treaty Authority, which is intended to provide effective and independent oversight of the Treaty process and negotiating parties.
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Treaty Negotiating Framework Committee: which will set the rules for Treaty negotiations, including what should be included and who will negotiate and be represented in the Treaty. It is yet to be determined whether there will be a single state-wide Treaty, or multiple local Treaties, or a combination of both.
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Self-Determination Fund Committee: which will oversee the provision of a financial resource from the State that will support Aboriginal groups to negotiate Treaties on equal standing with the State.
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Cultural Governance Committee: which is tasked with ensuring that the Assembly is culturally robust, culturally safe and driven by cultural protocols of doing business the Aboriginal way.
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Elders' Voice Committee: which will oversee the establishment of the Elders' Voice, ensuring that Aboriginal Elders of Victoria provide guidance, wisdom and cultural oversight to the work of the Assembly.
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Truth Telling Committee: Truth telling is a process of openly sharing historical truths after periods of conflict and is regarded as a necessary precondition for successful Treaties in Victoria (and elsewhere). On 9 March 2021, the Victorian Government, in partnership with the Assembly, announced that it will establish the Yoo-rrook Justice Commission, as part of Australia's first truth-telling process (Yoo-rook is the Wemba Wemba / Wamba Wamba word for Truth).
The Commission, which will be conducted by five Commissioners, will be modelled on other international truth telling commissions and is intended to be established under the Inquiries Act 2014 (Vic), meaning it will have the powers of a Royal Commission. It is anticipated that the Commission will investigate both historical and ongoing injustices against Aboriginal Victorians, and prepare a report of findings, which will serve as an official record of the impact of colonisation and make recommendations for the path forward. The Commission is anticipated to commence in July 2021, with the final report due three years after establishment.
The Victorian Government has stated that it is committed to working with Aboriginal Victorians as equal partners on the path to Treaty. It is understood at this stage that any Victorian Treaties will operate alongside existing agreements, including agreements made under the Traditional Owner Settlement Act 2010 (Vic).
Treaty progress in Queensland
The Queensland Government is also committed to embarking on a path to Treaty with First Nations Queenslanders.
In May 2020, the Eminent Panel, established as part of the 2019 "Tracks to Treaty" initiative and comprised of Aboriginal and Torres Strait Islander and non-Indigenous Queenslanders, released its recommendations in relation to Treaty in Queensland.
In August 2020 the Queensland Government responded to the recommendations, releasing a Treaty Statement of Commitment, which accepted either fully, or in principle, each of the Eminent Panel's recommendations.
Significantly, Queensland will establish a new Treaty Advancement Committee, which will provide independent advice on the implementation of the Eminent Panel's recommendations with a view to putting forward options to establish an independent legislated body to lead the path to Treaty in Queensland.
The Eminent Panel has also recommended that the path to Treaty in Queensland must involve: acknowledgement of First Nations' sovereignty; a framework for Truth telling; capacity building to enable Aboriginal and Torres Strait Islander peoples to participate in the Treaty making process.
Treaty progress in the NT, ACT, Tasmania and WA
The Northern Territory is currently in Stage Two of its two stage process to devise a Treaty consultation program, with the Treaty Commission having released a public discussion paper in June 2020. A Final Report is due to the Chief Minister no later than March 2022, which will outline key elements for a proposed Treaty in the NT.
In the ACT, progress towards Treaty continues in accordance with the ACT Aboriginal and Torres Strait Islander Agreement 2019–2028, which obliges the signatories to work together to enable equitable outcomes for Aboriginal and Torres Strait Islander peoples in the ACT.
In Tasmania, Reconciliation Tasmania continues to actively pursue Treaty, and in November 2020, the Tasmanian Aboriginal Affairs Minister Roger Jaensch advised that the Tasmanian Government was open to having discussions on Treaty with Aboriginal Communities.
Western Australia is not engaged in a formal Treaty process, however recent settlement agreements including the South West Settlement and the Geraldton Settlement have some of the key elements of Treaties.
No progress at the Federal Level, or in NSW or SA
To date, there has been no commitment to Treaty from the New South Wales Liberal Government, or the South Australian Liberal Government, which chose not to pursue Treaty discussions commenced by the previous South Australian Labor Government.
As noted above, the Federal Government is committed to establishing an Indigenous Voice, but continues to maintain that Treaties are best addressed at the State and Territory level. Interestingly, the concept of Truth telling has made its way into the December 2020 Interim Report "Never Again" on the inquiry into the destruction of Juukan Gorge. One of the key recommendations of the Interim Report is that the Western Australian and Federal Governments undertake Truth telling in relation to destroyed or damaged cultural heritage sites. With Truth telling considered by many to be an essential pre-condition for Treaty, it may be that reforms in other areas help pave the way for Federal Treaty in the future.
Where to from here?
The past 12 months have demonstrated that progress towards Treaty is likely to be slow, given negotiation frameworks must be established before negotiations can even commence. However, what is clear is that demand for Treaty and associated processes such as an Indigenous Voice to Parliament and Truth telling are growing.
It is not clear what specific rights successfully negotiated Treaties will provide. The South West Settlement provides the Noongar People with recognition as a distinct nation that has suffered past wrongs, and was reached via negotiations involving a surrender of native title rights and interests in exchange for land rights and financial benefits. It is considered by many to be a Treaty, despite the fact it does not involve any rights to self-governance.
Further, it is also not clear how any successfully negotiated Treaties may be given legal effect, including whether via symbolic agreement, contract, legislation or via Constitutional amendment.
At this stage, it seems most likely that State based Treaties will be developed prior to any Federal Treaty. While this may mean that Treaty is implemented faster, State based Treaties alone have limitations. State borders often do not reflect First Nations community boundaries, Treaties in different jurisdictions may vary greatly in what they are able to provide and they may ultimately be overridden by the Commonwealth.
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
