2018-06-28
Lidia Thorpe - Speech in Parliament
I would like to begin my speech on advancing the treaty process by acknowledging the Traditional Owners of the land on which we stand, the Koolin Nation and the Wurundjeri Willam Clan and the Boonwurrung First Nation, and pay my respects to their struggle, survival, and resistance proven in never ceding their country.
I am honoured today to have the opportunity to speak on the Advancing the Treaty Process with Aboriginal Victorians Bill 2018.
I feel the weight of my ancestors on my shoulders today as I speak. I know how long my people and all the other Clans and First Nations have fought for Treaty.
I would like to take a moment to say a few words in my traditional Gunnai language.
Deetgung Gurruwungo Boorun Gurruwungo.
This means ‘blue wren dreaming, pelican dreaming’. It is an acknowledgement of the spirits of my people, the spirits that guide me today.
The lack of Treaty in Victoria and Australia has been a long-standing injustice against the First Peoples of this land. It denies people land, means to achieve economic independence, self-governance, proper freedom to live in accordance with their culture and even proper recognition of their identity.
Through treaties, it is these things that must be fully revealed in a truth telling process. It’s also these things that the First Peoples of this land should receive redress for. Treaties have the potential to settle these matters and create peace between the First Peoples and the State of Victoria.
As I see it, we have two choices regarding the Treaty process.
Victoria can have a process that’s led by government appointed officials, where representation and thus power is handed to those who already have a lot of power and sway with the Government.
If this happens, Treaty risks doing nothing to empower and reach the grassroots communities and nothing will change.
Alternatively, we can take a different path. We can have a process that understands that Treaty is about justice and providing an opportunity for the marginalised to be empowered.
So, I say to all members of this House - the futures of not just tens of thousands of people, but many Nations of Peoples is in our hands. We must strive to get this right. We must put party politics aside. We must be humble and open to any suggestions that strengthen this legislation.
The Greens have done our best to consult with Elders, Clans and First Nations, as well as lawyers and organisations but with only a few weeks to do so, this has only just touched the surface. But we have done what we can with limited time. We've heard and responded to feedback from a range of opinions to develop our position.
Positives and outline of the bill
I want to start by talking about the positive aspects of this proposed legislation from the Greens perspective.
First and foremost, it’s heartening to have a bill that would actually lock in a process for advancing treaty, after so many years of injustice and inaction.
This bill achieves a number of things. It provides the basis for establishing a representative body for Aboriginal people of Victoria, which will work with the Minister to shape the framework for negotiations.
It provides Guiding Principles for the Treaty negotiating process. These principles are all very worthy and commendable. I was very pleased to see the language in the self-determination and empowerment principle mirroring language laid out in the United Nations Declaration on the Rights of Indigenous Peoples.
The other principles of fairness and equality, partnership and good faith, mutual benefit and sustainability and transparency and accountability are all elements essential to the negotiating process.
The bill also sets up a treaty authority to oversee the treaty process. It outlines the elements of a treaty negotiating framework. It sets up a process for dispute resolution and reporting.
And it establishes a much needed self-determination fund that funds Aboriginal Victorian’s to negotiate ‘on equal footing’ with the state. The use of the term ‘on equal footing’ is most welcome and needed in recognition of the power imbalance between the State and the Clans.
All these elements provide a good starting point, but we believe this bill must be strengthened in a number of ways, which I will outline.
Sovereignty - Sovereign Clans vs Aboriginal Victorians
Firstly, we need to know the Government is serious about Treaty and fully committed to a true Treaty process, if they want the Sovereign Clans and First Nations to participate.
Fundamental to a true treaty is recognition by the State that this is Aboriginal Land. That sovereignty has never been ceded by the Clans.
In the preamble to this bill, it states “Victorian Traditional Owners maintain their sovereignty has never been ceded and have long called for treaty.” But, that’s not the same as the Government recognising it for themselves.
The Government must acknowledge the Sovereign Clans as the owners and occupiers of the land now claimed by the State.
Further, we must specifically rule out anything in this Act ceding the sovereignty of the Clans. The reason why this needs to be spelled out is twofold. Firstly, we must ensure that no clan enters into an agreement that, unintentionally, has the effect of ceding their sovereignty.
Secondly, while Victoria is currently progressing this treaty agenda, there is still hope that a Commonwealth process will also occur. It is crucial that Clans and First Nations in Victoria are not excluded from participating in a commonwealth process.
The last aspect of sovereignty is recognising each of the Sovereign Clans as distinct political peoples and each as separate parties to the negotiations. That’s not to say the First Nations or groups of clans cannot self-determine to collectively negotiate treaty. But any such collective efforts must occur with the free, prior and informed consent of the sovereign peoples – the Clans who they represent.
Currently this bill speaks of ‘Aboriginal Victorians’, a term that potentially treats us as if we are one homogenous ethnic group.
We are the First Peoples of this land. Once there were some 300 Clans. Today about 100 Clans survive. There are 38 languages amongst these Clans and each has their own culture, traditions, beliefs, customs, laws and territories.
As it stands the structures envisaged by the Bill have the potential to undermine existing Aboriginal law and culture and the principle of free, prior and informed consent.
The lack of recognition in this bill of Aboriginal culture, including the different Clans and First Nations and, indeed, the role of Elders is concerning from a human rights’ perspective.
In addition to cultural appropriateness, it is critical from a legal perspective to recognise who the parties are.
A treaty is negotiated between two sovereign parties and, as such, cannot be negotiated and agreed with just anyone from the Aboriginal community. There is extensive international law and precedent and academic literature to support this position. The bill, however, states all Aboriginal Victorians as part of the process and does not define this further in any sections, leaving it open as to who may be party to the process.
I note the amendments circulated by the government to provide explicit recognition in the Bill of the Traditional Owners of the land known as Victoria and I welcome these amendments.
We continue to assert that it’s the Aboriginal Clans of Victoria that are sovereign peoples and that the Clans should be referenced in the Bill as such. While acknowledging they often choose to organise and represent themselves at the level of First Nation language groups in accordance with self-determination.
Added to this, we will take the step of suggesting that the Clans and First Nations should be listed in a schedule to this Bill.
By listing the clans it may help avoid a lengthy process of clans having to prove who they are and their right to participate.
It is critical that as the Treaty process continues the free, prior and informed consent of the First Peoples of this land is front and centre.
The Greens will be putting forth amendments to make these changes to the bill.
True Treaties
Next, I want to build on this theme of true treaties. A treaty is not just any agreement. It’s a particular type of agreement, one between two sovereign parties. It is a settlement of claims and an opportunity to make peace.
This bill makes some statements in the preamble about what a treaty might be. It states that a treaty or treaties might provide recognition for historic wrongs, address ongoing injustices, support reconciliation and promote the fundamental human rights of Aboriginal peoples, including the right to self-determination.
The problem with this is it’s not stated in the body of the bill and is very loose on the idea of self-determination.
A recent article by Harry Hobbs and George Williams, the Dean of Law at the University of New South Wales, called ‘The Noongar Settlement: Australia's First Treaty’ discusses the keys elements of a Treaty. It says, and I quote:
“While the content of negotiated agreements differs, however, to constitute a treaty, an agreement must contain more than mere symbolic recognition; an inherent right to some level of sovereignty or self-government must be recognised and provided for.”
Again, I welcome the Government moving to insert a definition of treaty in the Bill that explicitly recognises the right of Aboriginal people to self-determination.
A treaty may include matters additional to these, but this is the minimum.
Representation
Moving on to the issue of representation. This bill before us does not define who will make up the Aboriginal Representative Body. It simply states that the Commissioner for Advancing the Treaty Process will make recommendation to the Minister regarding the name of the entity; how the entity is established and the legal structure of the entity.
It also doesn’t specify that only Aboriginal Victorians, let alone people from the sovereign clans, or First Nations or even Traditional Owners can sit on the representative body. We are not alone in these concerns. The Scrutiny of Acts and Regulations Committee raised concerns regarding the cultural rights of Aboriginal persons in respect of the Aboriginal Representative Body. In Alert Digest Number 5 of 2018, it states and I quote:
“The Choice of representatives may be an expression of cultural identity or it could be considered a cultural practice. Because certain representatives carry authority within Aboriginal culture, such as elders, allowing those elders to represent the community in establishing the treaty process may allow the expression of that cultural identity and respect that cultural practice.”
The Government is moving to fix this by an amendment providing that only traditional owners can be on the Aboriginal Representative Body.
A further problem is that proposals so far for the Representative Body has elections based on regions and population.
Our way is for the Sovereign Clans to self-determine who they want representing them via their own self-determined processes, not via a process imposed on us.
Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples states, and I quote:
“Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”
The key words here are “in accordance with their own procedures”. I can only speak for my clans and my experience, but we do not have an election to establish who our representatives are.
Any attempt to rely on the Community Assembly recommendations to determine the process for establishing the Aboriginal Representative Body risks undermining the Treaty process in the eyes of many Aboriginal people.
The Community Assembly had no mandate to be formed. When the Government put the proposal to the 28th April 2017 Community Consultation, it was rejected. Yet, the Government went ahead anyway.
We are proposing a new way forward. That the Treaty Advancement Commissioner work with the Clan Elders Council to re-think this process and develop a more culturally appropriate way forward.
A Clan Elders Council is something that has long been called for by Aboriginal People. In the Government’s February 2016 Self-Determination Forum, the people called for Treaty, for efforts for Constitutional Recognition to halt while Treaties progress and for resources to establish a Clan Elders Council.
At many subsequent Government consultations, people again called for a Clan Elders Council.
In response to the failure to resource and support the establishment of the Clan Elders Council, the Victorian Traditional Owners Land Justice Group, with the support of the Greens, organised the Inaugural Clan Elders Council on Treaty.
This meeting was held here at parliament on the 14th May 2018. Roughly 40 Elders from tens of Clans and First Nations attended, and unanimously supported formation of the Clan Elders Council and agreed to the following statement:
Statement on Treaty, Sovereignty and our Rights
We Clan Elders, gathered at the Victorian Parliament House in Melbourne, meeting on the land of the Kulin First Nation, coming from places across the land now known as Victoria, make this statement:
Our Clans and Nations are the first Sovereign Peoples of the land now known as Victoria. We have existed on our land from the beginning of time. Our culture and connection to Country remain strong.
Our sovereignty has never been ceded or extinguished.
We seek justice and reparations for past and present wrongs and truth telling about our history.
We long for a chance to create peace and prosperity for our children based on self-determination, freedom and economic independence.
We acknowledge and welcome that the Victorian Government has begun a process for advancing Treaty for all Victorians.
We believe that the treaty consultation process so far has been flawed and failed to engage with the Sovereign Clans and First Nations.
We call for a Treaty process that respects and acknowledges our Clans’ sovereignty, our culture and our inherent rights. Our sovereignty, and each of the 38 language groups and 300 Clans, must be clearly recognised in the Government’s Treaty Advancement legislation.
We assert our right to self-determination, and free, prior and informed consent regarding any decisions that affect us.
We call for our rightful place and voice in all decision making that advances the treaty process.
Inaugural Clan Elders Council on Treaty
14 May 2018
We are pleased that the Government now recognises the importance of an Elder’s Council. It is essential that the Treaty Commission act quickly to fully form the Elder’s Council by inviting all Clans and First Nations to self-determine their representatives on the Council and bring the Elder’s Council formally into the Treaty process.
I was pleased to see the Government has allocated some $9 million for establishing the Aboriginal Representative Body and for advancing the treaty process in the recent budget papers. I would assert that resourcing this Clan Elders Council is an essential part of this.
To ensure the Elders, and their Clans and First Nations are no longer side-lined in the consultation and decision making process, the Treaty Advancement Commissioner must work in partnership with the Clan Elders Council in devising her recommendations to the Minister on the Aboriginal Representative Body.
Guiding Principles
Next I will turn to the guiding principles. As I previously mentioned, the Greens are happy with the Principles so far articulated. But we believe these could be further strengthened by a more explicit reference to the UN Declaration of the Rights of Indigenous Peoples.
We continually see our Governments act in contravention of UN Declarations, which our Country is a party to, particularly in respect to the rights of asylum seekers but also on other issues.
With this in mind, we think it’s essential that the UNDRIP be more deeply embedded in this treaty process. For our confidence in the process, it’s important that it be named in the legislation. And we welcome that the Government is open to this.
Self-determination Fund
Turning to the self-determination fund. As I said, we strongly support it being directed to support Aboriginal Clans to negotiate on equal footing with the State. But there are a few other things that we believe are essential to be funded if we’re to be have a fair and proper treaty process.
Firstly, there should be financial support for further cultural mapping of Aboriginal People’s genealogy. Due to the ravages of colonisation, lots of knowledge about our history and ancestors has been lost to many people.
Some clans are so decimated that the knowledge is very fragmented.
But the knowledge is there, amongst the elders, if we can be supported to bring it all together.
Secondly, we believe funding should be provided for a process of truth telling about the true history of Victoria.
As it stands, very few people understand what happened here. There is little discussion or recognition of the Frontier wars and all the Aboriginal warriors who lost their lives fighting against the colonial invaders.
Treaty Authority
Finally, I would like to turn to the Treaty Authority. This is an important body with the responsibility of overseeing the treaty negotiations. We believe the legislation should explicitly reference the independence of the Treaty Authority and are pleased the government has also adopted this recommendation.
Conclusion
I would like to conclude today by stating that this bill has a basis for moving forward.
Treaty is not about moral appeasement or legitimacy for Victorian Government, it’s about securing justice and political and economic rights for the First Peoples of this land.
There is nothing more important to the future of the First Peoples of Victoria than this treaty process.
It’s not going to happen overnight, it’ll take time for our First Peoples to truly understand what treaty means and to engage in the process.
It will also take time for the wider Victorian population to understand treaty and be part of the process of healing.
It is history in the making and has the potential to change the course of our future if we get it right.
Dr Samantha Ratnam - Speech in Parliament
I rise to speak on the Advancing the Treaty Process with Aboriginal Victorians Bill 2018.
I would like to begin by acknowledging that we are meeting on the lands of the Kulin nation and I pay my respects to elders past, present and emerging. I also acknowledge that sovereignty was never ceded; this always was and always will be Aboriginal land.
I would like to acknowledge my colleague in the other place Lidia Thorpe who has done an incredible amount of work and made an enormous contribution already, prior to and since entering Parliament, on this bill in advancing the treaty process.
My colleague has already spoken extensively in the other place on the Greens position in relation to this bill, so I do not intend to repeat all of what she said, but I will summarise it and add a few further thoughts. The Greens are proud to contribute to the long-overdue treaty process in Victoria.
The lack of treaties in this country is a longstanding injustice. The impacts of British colonisation are clear — a frontier war that lasted for over 100 years, massacres and violent dispossession of Aboriginal people from their land, forced incarceration on reserves and missions, and mass abduction of children from their families. Colonisers have left this trail of destruction across the world. This has resulted in intergenerational trauma and social disadvantage which has manifested in the huge gap in the socio-economic outcomes between Aboriginal Australians and non-Aboriginal Australians.
Efforts in the last decade to close the gap have made very modest improvements. The wounds created by brutal dispossession of Aboriginal people from their land, culture and families run deep and cannot be healed simply with a bit of money thrown at them and some token acknowledgement. To heal and make peace with governments of Victoria and Australia the first peoples of Australia and Victoria need to be shown true respect and meaningful change. They need their rights to land, resources and self-governance restored. Grassroots communities need to be empowered to shape their own destinies. To move out of despair and anger they need to know that change for the better is not only possible, it is happening and they are a part of it. If we get it right, treaty can do this and it must do this.
Getting it right means every Aboriginal person in every corner of Victoria getting a voice and being empowered in the treaty process. This can be achieved if the treaty progresses through the grassroots and through representatives from people’s own extended families, their clans and their local communities.
We must set up a process in which Aboriginal culture is truly respected, where clans and first nations and their laws are central, where people get involved in the treaty process because they own it and feel they can shape its outcomes, and where the representative body is representative of the people who most need a voice and empowerment. If those people get a voice and if they can set the terms of the treaty framework, the treaty will change things. If resources are provided, if respect is the core principle driving this process and if rights are finally honoured, it will change people’s lives and change communities for the better. If our first peoples are thriving in a society that truly respects their human, cultural and political rights, then all Victorians and Australians will be better for it.
Now turning to some of the details of the bill, the bill contains a good basic structure and process for moving ahead with the treaty process. It establishes an Aboriginal Representative Body, a treaty authority, a self-determination fund and guiding principles for the treaty process, and it outlines what a treaty negotiation framework should include.
Having said that, the Greens have raised a number of concerns with the government regarding the bill in its original form and suggested areas where it could be strengthened. Through our discussions we were pleased that the government has made some improvements by amendments introduced and adopted in the lower house. These include securing the independence of the treaty authority from the minister and having the United Nations Declaration on the Rights of Indigenous Peoples and the principles of free, prior, informed consent inserted into the preamble as guiding the treaty process. They also include recognising Victorian traditional owners in the process and specifying that only Victorian traditional owners can sit on the Aboriginal Representative Body.
We welcome the government’s commitment to establishing and resourcing an elders council, but we maintain that this body should be recognised in the legislation as all other bodies are, including the Aboriginal Treaty Working Group. We call on parties to support the Greens amendments regarding the elders council, including those that specify how it should be formed and function. The Greens will keep campaigning for the clans and First Nations to be the heart of this process, including ensuring that the Aboriginal Representative Body is made up of self-determined representatives of the clans and First Nations, selected by their own processes rather than the government’s preferred approach of elections.
While this bill is silent on the process for establishment of the Aboriginal Representative Body, in reality we know that the government has already decided how it wants to proceed. It wants to hold elections for Aboriginal people to sit on a company limited by guarantee.
For the record, the Greens believe that proposing a process for elections for the Aboriginal Representative Body is not only culturally inappropriate, it will invariably be completely undemocratic and in contravention of the United Nations Declaration on the Rights of Indigenous Peoples, which states that representatives must be self-determined and selected through Indigenous people’s own processes. Current estimates are that only 50 per cent of Aboriginal people are on the electoral role and that only half that again make formal votes. This is not by accident; this is by choice. Any voting process that occurs through the electoral role or any colonist institution is highly likely to be met with great mistrust by grassroots communities. If the Aboriginal Representative Body is established by elections, the treaty process is likely to be doomed to failure, because communities will not be engaged or empowered in the process.
Now turning to sovereignty, from the outset the Greens want to make it very clear that this treaty process cannot and must not have an underlying assimilation agenda. Treaty is about justice and rights, and critically it is about self-determination.
The Greens recognise the sovereignty of clans over the land now known as Victoria. The clans are the first peoples and were the custodians, owners and occupiers of the lands within Victoria for tens of thousands of years. They never agreed to sell or cede this land. The land now known as Victoria was forcibly stolen from them via unjust, unlawful and brutal wars against their peoples. The Greens recognise the clans’ right to redress for harms done, to restoration of their rights to land, to resources for economic independence, to land buyback and to self-governance in the form of their choosing. We believe Crown lands and waters must be made available to local Aboriginal clans via negotiated ownership, access and utilisation rights.
Victoria always was and always will be Aboriginal land. The state of Victoria must also clearly acknowledge that if they are serious about treaty and committed to a good faith process. The Minister for Aboriginal Affairs said in the lower house that it has recognised sovereignty in the preamble where it states: Victorian traditional owners maintain that their sovereignty has never been ceded … But I challenge her to put that to the people and see if they think that statement is the government acknowledging our first peoples’ sovereignty. All that does is recognise the traditional owners’ position on the matter; it does not state what the government’s position is.
The Howard government said it could not say sorry, but years later the Rudd government did, and this country welcomed it. Now the Andrews government is saying that it cannot recognised the first peoples’ sovereignty. History will not accept their excuses. If this founding document does not properly recognise the sovereignty of the first peoples, then we are at serious risk of that never occurring. We are at serious risk of a process that has an underlying conscious or unconscious assimilation agenda rather than a process of mutual respect. This has been a huge problem in the British Columbia treaty negotiations, and we should learn the lessons that not repeat them here.
In conclusion we state that the historic significance of the nature of this legislation cannot be overstated. I note that there are people in this chamber, members of the coalition who have contributed to this debate, who layer excuse upon excuse for why they cannot support a treaty process and why they cannot support this legislation. They say they are worried about health and mortality gaps, but when it comes to putting those words into action they recoil and hide behind excuses. We have an opportunity in this state to show great leadership in this country. A treaty is so overdue, and we welcome Victoria leading the way on advancing a treaty process. The time for treaty is now. We must recognise the sovereignty of our First Nations. They are the heart and soul of this nation. The Greens will do everything that we can to ensure that we have treaties with our First Nations right across this nation.
To sign the petition go to www.treaty.org.au