Legal development

Federal Government commits to Uluru Statement from the Heart while Treaty momentum gathers

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    What you need to know

    • The Federal Labor Government has committed to the Uluru Statement From the Heart in full - Voice, Treaty and Truth.
    • Meanwhile, momentum continues for Treaty negotiations in Victoria, Queensland, ACT, NT, SA and Tasmania, where governments are supportive of the process.
    • In WA, alternatives to Treaty are at various stages of implementation.

    What you need to do

    • While there is at last momentum for truth telling and treaty making, do not expect fast outcomes.  It will still take years. 
    • First Nations Australians will have a stronger voice, both to Parliament and within legislation, on issues not typically seen as 'Indigenous'.
    • There is a lot for all Australians to learn.  It will be an interesting time ahead.

    Reminder of background to Treaty in Australia 

    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.

    Status of treaty making around Australia

    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. 

    This means that subject to further consultation with First Nations communities, the Government intends to first progress a referendum to enshrine a Voice to Parliament in the Constitution.  In doing so, it will need to consider the extent to which it proceeds with the work done by the former Liberal Government since October 2019, which has looked at establishing a national "Indigenous Voice to Parliament".  The Indigenous Voice Co-Design Group Final Report to the Australian Government was made public in December 2021.  It recommended establishing a Voice (that would form part of the Constitution) through the establishment of two new sets of advisory bodies: 

    • 35 separate "Local & Regional Voices", which will "undertake community engagement, provide advice to and work in partnership with all levels of government; and"
    • a "National Voice", comprising 24 members who will "provide a mechanism to ensure Aboriginal and Torres Strait Islander peoples have a direct say on any national laws, policies and programs affecting them" by advising both the Australian Parliament and Government.

    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.

    In implementing the other elements of the Uluru Statement, the Government will also establish a "Makarrata Commission" to work with the Voice to Parliament on a national process for Treaty and Truth-telling.  Makarrata is a Yolngu word meaning "coming together after a struggle."  Although the Uluru Statement calls for the establishment of a Voice to Parliament prior to Treaty and Truth-telling, Minister Burney has not ruled out the possibility of progressing all three elements simultaneously.  

    Notwithstanding renewed Government support for the Uluru Statement, the challenge now will be seeking broader support for a referendum and Treaty making, as well as ensuring there is consensus of approach among First Nations people.

    Progressing Treaty and Truth Telling 

    See more below.
    Progressing Treaty

    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.
    Progressing Treaty

    The ACT is working towards self-determination for First People in accordance with its ACT Aboriginal and Torres Strait Islander Agreement 2019 – 2028.
    Progressing Treaty

    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.
    Progressing Treaty

    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.
    SAProgressing 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.
    No progresS
    Government says Treaty is a matter for the Federal Government.
    Progressing alternatives

    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.  

    Victoria – Treaty and Truth Telling 

    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:

    • negotiations towards both a State wide Treaty, and local Treaties with specific Traditional Owner groups; 
    • the establishment of a "meaningful voice" which may include seats in the Victorian Parliament or an independent representative body with decision making powers; 
    • an independent "Treaty Authority" to act as a neutral facilitator of negotiations.  On 8 June 2022 the Victorian Government moved the second reading of the Treaty Authority and other Treaty Elements Bill 2022, to amend the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic).  The Bill will establish a Treaty Authority and makes other amendments in relation to advancing Treaty with First Nations Victorians;
    • a "Self Determination Fund" which will fund Traditional Owners to negotiate with the Victorian Government.

    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: 

    • establish an official record of the impact of colonisation on First Peoples in Victoria using First Peoples' stories; and
    • make detailed recommendations about practical actions and reforms needed in Victoria.

    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:

    • historical systemic injustice, including matters such as cultural violations, destruction of cultural knowledge, dispossession, massacres, forced removal of children; and
    • ongoing systemic injustice, including matters such as policing, incarceration, child protection, health and healthcare.

    The Commission also has strategic priorities, including to:

    • uphold the sovereignty of First Peoples over their knowledge and stories;
    • collect evidence in culturally appropriate ways;
    • develop a public record of systemic injustice; and
    • review the criminal justice system as it relates to First Nations people.

    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. 

    Where to from here?

    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

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.


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