Last month, the Victorian Government introduced the Advancing the Treaty Process with Aboriginal Victorians Bill 2018 (Vic) (the “Bill”) into the Victorian Legislative Assembly. This Bill is the first piece of legislation introduced into the Parliament with the proposed purpose of negotiating a treaty with Indigenous Australians.
Minister for Aboriginal Affairs Natalie Hutchins stated in her second reading speech to the Legislative Assembly:
“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.”
The Bill was introduced into the Victorian Parliament as a legislative mechanism to provide for future treaty negotiations between the State of Victoria and Aboriginal Victorians. The purpose of the Bill, as outlined in section 1, is:
One legislative mechanism by which the Bill's objectives are proposed to be achieved, is through the creation of an Aboriginal Representative Body. Provided for in Part 2 of the Bill, the Aboriginal Representative Body has the proposed function of representing “the diversity of Aboriginal Victorians in working with the State to establish by agreement elements necessary to support future treaty negotiations” (section 9(1)).
The Aboriginal representative body would be created by declaration of the Minister for Aboriginal Affairs, on recommendation of the Victorian Treaty Advancement Commissioner, under sections 10 and 11 of the Bill. This declaration would have to be made before 1 July 2019, as per section 12. The proposed function of the Aboriginal Representative Body is outlined in the second reading speech of Minister Natalie Hutchins:
“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.”
Part 3 of the Bill outlines what are proposed to be the guiding principles for the treaty process. As per section 19(2):
“It is the intention of the Parliament that the guiding principles should be culturally empowering, and the Parliament acknowledges that the guiding principles may have different meanings and emphasis for different Aboriginal Victorians and those variations must be considered in the application of the guiding principles.”
The guiding principles outlined in Part 3 of the Bill are:
In Parts 4, 5 and 6, the Bill outlines the three elements that it proposes to require the Aboriginal Representative Body and the State of Victoria to establish:
The requirement of the treaty authority is outlined in Part 4 of the Bill. As per the second reading speech, the treaty authority “will act as the independent ‘umpire’ of the treaty negotiation process”.
“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.”
Part 5 of the Bill proposes to establish the treaty negotiation framework. This framework, when formulated, will set out the processes for creating and negotiating the treaty, as well as resolving any disputes which may occur during the treaty process.
The third element of the self-determination fund is contained in Part 6 of the Bill. As per the second reading speech:
“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 final provisions of the Bill, Parts 7 and 8, deal with dispute resolution and reporting. With regards to these Parts, Minister Natalie Hutchins stated in her second reading speech:
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.”
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Advancing the Treaty Process with Aboriginal Victorians Bill 2018 (Vic), and explanatory material available on TimeBase's LawOne service.
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