Federal Government commits to Uluru Statement from the Heart while Treaty momentum gathers
11 July 2022
11 July 2022
Australia continues to be the only Commonwealth country never to have signed a Treaty with its Indigenous people.
This is our third annual update on the status of Treaty making in Australia, and focuses on developments in 2021 and the first half of 2022.
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. Our 1 April 2021 article Treaty update: Progress in State based Treaty negotiations and proposals for a national Indigenous Voice provided a 2020 update.
The status of Treaty making in Australian States and Territories can be broadly summarised as follows:
|Progressing Treaty, Truth-telling and/or Voice to Parliament|
The election of the Federal Labor Government has seen Prime Minister Anthony Albanese commit to the Uluru Statement from the Heart "in full," including the three key elements of Voice, Treaty and Truth.
The new Labor Government is yet to commit to a firm timeline for a referendum to enshrine the Voice, but incoming Indigenous Affairs Minister Linda Burney has noted that it could occur as soon as May 2023.
|VIC||Progressing Treaty and Truth Telling |
See more below.
Independent Report "Path to Truth-Telling and Treaty" released on 25 November 2021. Completed by the former Governor of Tasmania and former law professor Tim McCormack and based on over 100 meetings over four months with First Nations Tasmanians, it contains recommendations for path to Treaty in Tasmania. The Tasmanian Government has committed to responding to the recommendations in 2022.
The ACT is working towards self-determination for First People in accordance with its ACT Aboriginal and Torres Strait Islander Agreement 2019 – 2028.
The Northern Territory Treaty Commission is currently developing a framework for a proposed Treaty. A final report was due to be handed to the Minister for Treaty and Local Decision Making by March 2022. This final report is not currently publicly available.
The Queensland Government established the Treaty Advancement Committee in February 2021. Comprised of three First Nations members and two non-Indigenous members it delivered its Final Report to the Queensland Government in October 2021. The Government is considering the Report and has established the $300 million Path to Treaty Fund as part of its 2021-2022 State budget to assist its response.
|SA||Progressing Treaty and SA Voice to Parliament|
In October 2021, the South Australian Liberal Government introduced the Aboriginal Representative Body Bill into Parliament. The Bill is for an Act to give Aboriginal people a voice that will be heard by the Parliament of Australia. It intends to establish a Commissioner for Aboriginal Engagement and an Aboriginal Representative Body.
In March 2022 a new South Australian Labor Government was elected, with Premier Peter Malinauskas announcing that key priorities for the Aboriginal Affairs portfolio include to re-start the Treaty process commenced by the former Labor Government in 2016, and to deliver a SA Voice to Parliament. It is not yet clear whether this Voice to Parliament will be implemented via the existing Aboriginal Representative Body Bill, or via some other means.
|NSW||Government says Treaty is a matter for the Federal Government.|
Progressing Treaty alternatives
Despite not actively progressing Treaty, recent native title settlement agreements, including the South West Settlement and the Geraldton Settlement contain some key elements of Treaty. In May 2021, the Western Australian Government announced that it would wait to see what Voice to Parliament model is chosen by the Federal Government, before considering how its own proposed Aboriginal advisory body would be established.
The path to Treaty in Victoria continues to be led by the First Peoples' Assembly of Victoria, an elected body for Aboriginal Victorians.
In October 2021, the Assembly approved the draft Treaty Negotiation Framework, which will guide future discussions with the Victorian Government. Key elements of this framework include:
Another core component of the Victorian Treaty process is Truth Telling. 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).
In May 2021, the Yoo-rrook (Truth) Justice Commission was established by the Victorian Government in partnership with the Assembly, to investigate historical and ongoing injustices against Aboriginal Victorians.
The Commission is being led by five commissioners, four of whom are First Nations Peoples, making this Australia's first ever Aboriginal led Royal Commission. The commissioners are assisted by Tony McAvoy SC, a Wirdi man and the first Australian First Peoples Senior Counsel (who is also the Acting Treaty Commissioner for the Northern Territory), and Fiona McLeod SC, a human rights barrister. The Commission's key functions are to:
The Commission has extensive terms of reference which include inquiring into and reporting on the following matters, including causes and consequences, and how these matters can be addressed or redressed:
The Commission also has strategic priorities, including to:
The Commission officially launched in March 2022. The first step was leading a yarning circle with Elders on Country in regional Victoria, with the first formal Truth Telling hearings commencing in April 2022. An Interim Report of the Commission is due in June 2022, with a Final Report due by June 2024. Already, it is flagged that this two year timeframe will need to be extended.
It is clear that Treaty making takes significant time, with negotiation frameworks and Truth Telling processes often required before negotiations can commence.
Furthermore, as has been seen with the recent Federal election and also in South Australia, , changes in government may result in new or different approaches in particular jurisdictions. Ultimately, awareness of the importance of Treaty for both First Nations people and Australia more generally is continuing to grow, making it inevitable that progress will continue in this space. Over the course of 2022, we will continue to monitor the progress of Treaty and Voices to Parliament across Australia.
Authors: Tess Birch, Senior Associate; Clare Lawrence, Partner