Last week, the Victorian government showed its commitment to building a level playing field with First Peoples. A new bill has been tabled in the Victorian parliament to advance Victorian treaty processes.
In 2018, legislation was enacted that required the First National Assembly of Victoria and the Victorian Government to work together to establish a Treaty Authority.
The new bill further reaffirms the Assembly and the Victorian Government’s agreement and commitment to establish a Treaty authority and support its activities.
The new Treaty Authority will be the first of its kind in Australia, placing the culture of First Peoples at the heart of its practices.
Read more: Queensland’s ‘Road to Treaty’ has some lessons for the rest of Australia
What is the Treaty Authority and how will it work?
The significant difference in power between the government and First Nations means that there must be a way to establish equal footing for treaty negotiations.
The Treaty Authority serves that role as an institution independent of parliament and government.
Negotiations can be very long and complex. The authority will oversee treaty negotiations and if the parties cannot agree on specific issues or the appropriate process, it will act as an independent arbitrator to help resolve the issue.
The new government will respect First Peoples’ culture with a focus on dialogue. The core of the treaty process is to talk through difficulties in reaching agreement, rather than a conflicting approach.
Co-chair of the Assembly and Nira illim bulluk man Marcus Stewart said the Treaty Authority
will be guided by Aboriginal tradition, law and cultural authority already practiced for countless generations on these lands.
This is a significant development in Australian legal institutions and processes. This addresses known issues with the conflicting nature of indigenous title provisions, where traditional owners have to sue the government to prove their title.
This new public law process appropriately recognizes the status of indigenous cultural approaches.
In another important development, the Treaty Authority will have guaranteed state funding, which controls and manages it. This will ensure that the government can perform its functions in the long term.
In the past, when governments set up bodies to assist First Nations, there were problems with sustainability because the body did not have the resources to function. It is encouraging to see the commitment at this early stage, to continuous funding and First Nations control.
The Treaty Authority will consist of independent members who are all First Nations, who will be elected following a public call for nominations.
Read more: Voice to Parliament draft report still does not meet international human rights standards
The Treaty Authority recognizes the right to self-determination
Indigenous law expert professor Megan Davis explains
before Indigenous Australia can participate in the Australian Democratic project on fair and equal terms, the unresolved issues of the colonial project and the psychological terra nullius of Australia’s public institutions must be finally addressed.
The Treaty Authority will be a public institution struggling with this problem of “psychological terra nullius” – the exclusion of First Nations peoples in politics and law.
It forms part of the broader work to provide equitable and equal participation by First Nations in our democratic institutions. It complements the First People’s Assembly of Victoria, and the Yoorrook Justice Commission, which address voice and truth, respectively.
All of these institutions are part of the overarching treaty process in Victoria.
Treaties are one important way of realizing indigenous peoples’ right to self-determination.
Self-determination means the right of a people to make decisions about their own governance and way of life.
Indigenous peoples’ self-determination is also a requirement of the United Nations Declaration on the Rights of Indigenous Peoples, and other international human rights law.
Using First Nations ‘”legislation, tradition and cultural authority” to support the treaty process, the Victorian Treaty Authority demonstrates an innovative approach to realizing First Nations’ right to self-determination.
Navigate a path to treaty
Victoria is the only Australian jurisdiction currently navigating treaty processes. Queensland, the Northern Territory, South Australia and Tasmania are all starting paths to treaty.
And the new Albanian government is working to fulfill its commitment to the Uluru Declaration from the heart’s call for Voice, Treaty and Truth at the federal level.
Each of these processes must be properly informed by the respective First Nations in each area.
For all jurisdictions, the Victorian approach shows the potential for transformative institutional reform, inside and outside government.
Self-determination must be led by sovereign First Nations people and be grounded in indigenous culture and law. International human rights law requires it. And justice alone demands that the state, in all its forms, enter into proper relations with the First Nations of this country.