Advancing the Treaty Process with Aboriginal Victorians Bill 2018

Ms HUTCHINS (Minister for Aboriginal Affairs) (12:07:40) — I move:

That this bill be now read a second time.

In doing so I acknowledge the traditional owners and custodians of the land on which this Parliament stands. The government pays our respects to their elders — past and present; elders from all Victorian Aboriginal peoples, and elders and other Aboriginal people who join us here today. I wish to acknowledge the many Victorian Aboriginal nations who have lived for thousands of generations on this land before and since the establishment of the state of Victoria; who continue to be a special, vital and celebrated part of Victoria’s present and future.

We stand here to address unfinished business and to progress reconciliation with Victoria’s first peoples. I acknowledge that Victorian traditional owners maintain that their sovereignty has never been ceded, and throughout the history of this state, have repeatedly called for treaty. For too long these calls for treaty have gone unheard.

In early 2016, this government made a commitment to listen to Aboriginal Victorians about what self-determination means to them. Aboriginal Victorians called loud and clear for treaty as a necessary means for realising self-determination. In response, the Victorian government agreed to work together with Aboriginal Victorians to create a pathway towards treaty. Quite simply, treaty is the right thing to do.

It is with sombre pride that I introduce to this Parliament the first piece of legislation in our nation’s history to address treaty making with Aboriginal people — the Advancing the Treaty Process with Aboriginal Victorians Bill 2018.

This bill marks the start of a new relationship between Aboriginal Victorians and government, one defined by partnership and self-determination, and a critical step towards reconciliation.

This new relationship with Aboriginal Victorians requires new ways of doing things. That’s why we have worked in close partnership with members of the Aboriginal Treaty Working Group to develop this bill. I wish to express unreservedly my thanks and gratitude to the working group not only for their work on this landmark bill, but also for leading government and supporting Aboriginal communities through the earliest stages of the treaty process.

It is the firm belief of this government that at all stages of the treaty process, we must be guided by Aboriginal self-determination, as recognised in the United Nations Declaration on the Rights of Indigenous Peoples. Consistent with the principle of self-determination, this bill provides the foundation on which we will build a strong and modern treaty process in partnership with Aboriginal Victorians.

It does this by enshrining the relationship between the future Aboriginal Representative Body and the state as equal partners in advancing the treaty process together.

Aboriginal Representative Body

The Aboriginal Representative Body will be the voice of Aboriginal Victorians in establishing the treaty process and will represent the diversity of the Victorian Aboriginal community. The body will work as the state’s equal partner in establishing the elements necessary to support future treaty negotiations.

For nearly two years now, Aboriginal Victorians, led by the Aboriginal Treaty Working Group, have been coming together to design their Aboriginal Representative Body. The newly appointed Victorian treaty advancement commissioner, Ms Jill Gallagher AO, with continued guidance from the working group, will now take carriage of this work. The commissioner will lead and work with the Victorian Aboriginal community to establish its Aboriginal Representative Body in the near future.

On the recommendation of the Victorian treaty advancement commissioner, the responsible minister must make a declaration in the Victoria Government Gazette recognising an entity as the Aboriginal Representative Body.

The bill sets the expectation that the Aboriginal Representative Body will be established and a declaration made by July 2019. Should this time line not be met, the bill requires the responsible minister to table a plan in Parliament within three months that outlines how government will support Aboriginal Victorians to establish the Aboriginal Representative Body.

Guiding principles

The Advancing the Treaty Process with Aboriginal Victorians Bill 2018 also enshrines guiding principles for the treaty process. These principles crystallise the Victorian government’s commitment to creating a new relationship with Aboriginal Victorians through treaty, and set the tone for how the treaty process will proceed.

These principles are more than aspirational and will be used to govern the relationship between the state and the Aboriginal Representative Body, and will apply as well to future participants in the treaty process.

These principles are: self-determination and empowerment; fairness and equality; partnership and good faith; mutual benefit and sustainability; and, transparency and accountability.

These guiding principles were chosen and developed in partnership with members of the Aboriginal treaty working group. They draw on the United Nations Declaration on the Rights of Indigenous Peoples, the Victorian charter of human rights, as well as common principles of good governance.

Elements to support future treaty negotiations

The bill requires the Aboriginal Representative Body and state to work together to establish three elements: a treaty authority, a treaty negotiation framework, and a self-determination fund.

Treaty Authority

The first element — a treaty authority — will act as the independent ‘umpire’ of the treaty negotiation process.

International best practice examples, including Canada and New Zealand, show the need and value of an independent body such as a Treaty Authority.

Under the bill, a treaty authority will oversee and facilitate treaty negotiations, to ensure fair, effective and efficient dealings between parties.

At a minimum, a treaty authority will be responsible for administering the agreed treaty negotiation framework once in place, managing disputes between parties, and undertaking research to support and inform treaty negotiations.

In line with self-determination, it is appropriate that the specific role and functions of the treaty authority is determined by agreement between the Aboriginal Representative Body and the state.

Treaty negotiation framework

The second element the Aboriginal Representative Body and state must establish is a treaty negotiation framework.

The treaty negotiation framework will set out the processes for negotiating, formalising, enforcing and reporting on treaty or treaties, and for resolving any disputes along the way. It will also specify the threshold requirements a party must meet in order to enter into treaty negotiations.

While details are to be agreed between the Aboriginal Representative Body and the state, at a minimum the treaty negotiation framework will specify which matters will be unable to be addressed by a treaty or treaties. This could include those matters that are outside the jurisdictional powers of the state of Victoria. In doing so, the treaty negotiation framework will define the scope of a treaty.

The bill is inclusive and does not preclude the participation of clans and family groups in the treaty process. Similarly, it does not preclude the possibility of statewide or geographic specific treaties.

We have a lot of exciting work ahead of us to identify and agree matters including what will be included in a treaty or treaties and who treaties will be negotiated with. Treaties with First Peoples in New Zealand, Canada and the United States deal with matters including acknowledgement and apologies for past wrongs, recognition of Aboriginal sovereignty and self-government, rights to access and/or manage land and resources, health, education and economic development, and rights to enjoy and protect language, culture and heritage.

These matters may be instructive for what a treaty or treaties between Aboriginal Victorians and the state of Victoria may cover. However, the treaty or treaties ultimately negotiated must address the unique aspirations of Aboriginal Victorians, acknowledging the limitations of what the state is legally able to do.

Self-determination fund

The third element to support future treaty negotiations specified under the bill is a self-determination fund.

If we are serious about Aboriginal Victorians being our equal partners in the treaty process — which this government is — they must be equipped with adequate resources to act as such.

The purpose of a self-determination fund is to support Aboriginal Victorians to participate in the treaty process on an equal footing with the state, and to provide an independent resource base that supports Aboriginal Victorians to freely pursue self-determination and be empowered to build capacity, wealth and prosperity.

The self-determination fund responds to growing local and international evidence that better social and economic outcomes are achieved when Aboriginal people are able to exercise their right to self-determination. It also acknowledges that Aboriginal Victorians hold the knowledge and expertise to make the best decisions for themselves, their families and their communities.

Once the fund is established, the Aboriginal Representative Body will be responsible for managing and administering the fund consistent with its purposes. The self-determination fund will be critical to enabling Aboriginal Victorians to realise self-determination and creating a level playing field in the treaty process.

Dispute resolution

The bill requires the Aboriginal Representative Body and the state to enter into an agreement that sets out a process for resolving disputes that may arise when working together to establish the elements to support future treaty negotiations.

This process agreed to must be culturally appropriate and time bound.

This dispute resolution provision recognises that working together in this new way will not always be easy, but we are committed to working through our differences to reach our ultimate goal of achieving a treaty or treaties.


Finally, the bill commits the responsible minister and Aboriginal Representative Body to report to Parliament annually on progress towards treaty. This reporting mechanism will provide transparency and accountability to Aboriginal Victorians, indeed all Victorians, on the state’s and Aboriginal Representative Body’s commitment and efforts to progress treaty.

Closing remarks

Aboriginal Victorians have told us that treaty is a critical component of self-determination and reconciliation. How we get there — the pathway we choose to take together towards treaty — is just as important as achieving a treaty or treaties.

We are still at the very beginning of that pathway to treaty. This bill sets out this government’s genuine commitment to advancing the treaty process in partnership with Aboriginal Victorians, and doing so in a way that supports self-determination and reconciliation.

I commend the bill to the house.

Debate adjourned on motion of Mr CLARK (Box Hill).

Debate adjourned until Wednesday, 11 April.