Advancing The Treaty Process With Aboriginal Victorians Bill 2018

Speech to parliament: I would like to begin my speech on the Advancing the Treaty Process with Aboriginal Victorians Bill 2018 by acknowledging the traditional owners of the land on which we stand: the Kulin nation and the Wurundjeri-willam clan and the Boon Wurrung First Nation. I 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 languages: 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 longstanding injustice against the first people of this land. It denies people’s land and 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 is also these things that the first people of this land should receive redress for. Treaties have the potential to settle these matters and create peace between the first people and the state of Victoria.

As I see it we have two choices regarding the treaty process. Victoria can have a process that is 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 people are 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. We have done what we can with limited time. We have heard and responded to feedback from a range of opinions to develop our position.

I want to start by talking about the positive aspects of this proposed legislation from the Greens’ perspective. First and foremost, it is 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 a 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, outlines the elements of a treaty negotiating framework, sets up a process for dispute resolution and reporting, and establishes the much-needed self-determination fund that funds Aboriginal Victorians 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 of these elements provide a good starting point, but we believe this bill must be strengthened in a number of ways which I will outline. 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, ever been ceded by the clans. The preamble to this bill states: Victorian traditional owners maintain that their sovereignty has never been ceded, and … have long called for treaty. But that is 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 this state. Further, we must specifically rule out anything in this bill that is ceding the sovereignty of clans. The reason this needs to be spelt out is twofold: firstly, we must ensure that no clan enters into an agreement that unintentionally has the effect of ceding their sovereignty; and 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 a separate party to the negotiations. That is 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 they represent. Currently this bill speaks of ‘Aboriginal Victorians’, a term that potentially treats us as if we were 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 language groups among these clans, and each has its own culture, traditions, beliefs, customs, law and territory. As it stands, the structures envisaged by this 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 to with just anyone from the Aboriginal community. There is extensive international law and precedent and academic literature to support this position. The bill, however, uses the term ‘Aboriginal Victorians’ as part of the process and does not define it further in any clauses, 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 is the Aboriginal clans of Victoria that are the 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. Listing the clans 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.

Next I want to build on this theme of true treaties. A treaty is not just any agreement. It is 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. 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 key 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 into 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.

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 does not 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. Alert Digest No. 5 of 2018 states, and I quote: The choice of representatives may be an expression of cultural identity or it could be considered to be 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 have 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 (UNDRIP) 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 — no mandate — to be formed. When the government put the proposal to the 28 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 be halted 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 Owner 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 14 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:

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: We are pleased that the government now recognises the importance of an elders council. It is essential that the treaty commission act quickly to fully form the elders council by inviting all clans and First Nations to self-determine their representatives on the council and bring the elders 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 sidelined 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. 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 United Nations Declaration on 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 of the rights of asylum seekers but also on other issues. With this in mind, we think it is essential that the UNDRIP be more deeply embedded in this treaty process. For our confidence in the process it is important that it be named in the legislation, and we welcome that the government is open to this. 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 are to 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.

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. 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 the Victorian government; it is 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 is not going to happen overnight. It will 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.