Advancing the Treaty Process with Aboriginal Victorians Bill 2018
I am pleased to have the opportunity to speak on the Advancing the Treaty Process with Aboriginal Victorians Bill 2018.
I also would like to start by acknowledging the traditional owners and custodians of the land on which this Parliament stands and pay my respects to their elders, past and present, elders of all Victorian Aboriginal peoples and elders of other Aboriginal people who may be here today.
This is a bill which seeks to provide a foundation for future treaty negotiations to take place between Aboriginal Victorians and the state. Importantly, and in line with the United Nations Declaration on the Rights of Indigenous Peoples, it explicitly acknowledges the treaty process must be guided by Aboriginal self-determination and enshrines that relationship between a future Aboriginal representative body and the Victorian government as equal partners. The bill sets a timeline for the establishment of this Aboriginal representative body by July 2019 and outlines functional guiding principles for the treaty process: self-determination and empowerment; fairness and equality; partnership and good faith; mutual benefit and sustainability; and transparency and accountability.
What I believe is a particularly important aspect of this bill is that it provides for the active engagement with treaty by Aboriginal Victorians at every step of the process. As the minister indicated in her second-reading speech, Aboriginal Victorians led by the Aboriginal Treaty Working Group have been working for nearly two years to design what their representative body will look like. This means Aboriginal people will have an equal say in not only any outcomes of treaty but how the treaty is developed. They will have equal input on the formation of a treaty authority to act as an independent umpire of the treaty process, the framework for how treaty will be negotiated and reported, how disputes will be resolved and what criteria must be met for a party to enter into treaty negotiations.
Critically it also requires the creation of a self-determination fund, and that is to adequately resource Aboriginal Victorians to participate in the process. So while the bill does not prescribe a dollar amount, I think we could conclude that, given the equal status between Aboriginal people and the state, it should be sufficient to ensure that the outcomes of the bill can be achieved.
It is interesting that as we debate this bill here today the National Native Title Conference is currently taking place in Broome, and that is being convened by the Australian Institute of Aboriginal and Torres Strait Islander Studies and the Kimberley Land Council. Native title has of course been active across the country for over 25 years now, with a range of different outcomes for different peoples. The theme of this year's conference in Broome is 'Many Laws, One Land: Legal and Political Co-existence' and it really marks the anniversary of the passing of the Native Title Act in 1993. Of course we all know that the Native Title Act was really the response to the Mabo case from the 1990s, a landmark case that we all learned about and know about now and which was really the first to recognise that original ownership of land in Australia.
The first case under the Native Title Act was the Yorta Yorta case, which was a case involving land that extended from Deniliquin, north of the Murray River, down to Seymour, way across towards Swan Hill and then back towards Wangaratta, so it was a very large claim area. In 1993 when that case commenced it was met with considerable shock in the regions that it encompassed because native title had in a lot of ways come out of the blue to many people, and so the claim for exclusive use and possession of all Crown land and waters certainly seemed like a threat at the time. The case took over 12 years to finally reach the High Court, and of course, as we all know, the standard legal tests that needed to be met could not be met by the Yorta Yorta people, and there was a finding that there was no native title across the lands that were claimed.
I often regret the fact that that was the first case that was brought on mainland Australia. I think to try to develop the law in an area that was so closely settled from such an early time was such a big ask. Had that first case happened in Western Australia, the Northern Territory or Queensland, we would have had a body of law developing in areas where the disruption to Aboriginal communities by farming and colonisation in many ways was not as great, and the connectedness to land that you had to prove under the Native Title Act would have been an easier task. It was such a hard ask in northern Victoria to be able to make those legal elements stand up, and of course that could not be achieved.
After that there have of course been many, many cases over the years — 25 years history now of native title. People are looking back to see what it has achieved, and I am sure at that conference in Broome there will be some very interesting reflections on how it is going. There are presently Native Title Act reforms before the federal Parliament as we speak. At that conference is our own Jill Gallagher, who is the Victorian treaty advancement commissioner. She is participating in a panel discussion about this very issue alongside other Aboriginal leaders, including Professor Mick Dodson, the director of the National Centre for Indigenous Studies at the Australian National University; Marcus Stewart; and various other traditional owners.
I note that while Victoria is pursuing its treaty agenda, treaty negotiations in South Australia have stalled since the change of government in March 2018. Like Victoria, the South Australian government began discussions with its Aboriginal communities in 2016, and in February this year it signed an agreement with the Narungga people as the state's first step towards a treaty with an Aboriginal group. Also like Victoria, concerns were raised about the level of community consultation, which in South Australia actually resulted in Supreme Court proceedings as a result of actions by three Narungga women. Treaty negotiations were officially paused in April in South Australia with the incoming change of government, and the commissioner there has been tasked with reviewing the lessons learned from the process to date. So it has effectively stalled in South Australia.
I think it is interesting to note that New Zealand of course had a treaty from such an early stage. It is a very different landscape there, where that single treaty was initiated very early on. For us it seems to be a long and tortuous affair. Canada indeed has worked for a long time on treaties. Again in Canada, rather than the single treaty that New Zealand appears to have adopted, they are looking at individual agreements with different groups — not necessarily on a state-by-state basis, but rather with different groups.
Previous speakers on this bill have raised a comprehensive commonwealth treaty as a preferable outcome for Australia, and they see the fact that the commonwealth should be working on that as something that is important. I take the view that this is a good piece of legislation. It is only a step in the direction of a treaty. It needs to bring together so many people, and we can see from previous speakers, in particular the member for Northcote, that there are remaining issues. I must say, from my years of experience in the native title field, it is extremely hard to bring disparate groups of people together. There are many, many clans across Victoria. I think we often run the risk of thinking that Aboriginal people are just Aboriginal people — one group. They are simply not; they are a very disparate group of people. There were many, many clans across Victoria and across Australia long before we came. They all functioned and operated differently for themselves and individually, so the challenges that they face in getting to a point where they can put a treaty together or put a proposal to government for a treaty will be long and tortuous. It has been long and tortuous just to get to this point.
I would certainly encourage Aboriginal communities to work together as best they can to come up with a solution and an outcome that will be acceptable to government. It is a partnership, so everyone needs to be working together. I also welcome the fact that this sort of process will let other people know what is happening. I think out there in the community there is a great ignorance about treaty and what it might all mean, so the process ought to educate everyone out in our community — not just the Aboriginal community, but the wider community — so that when the time comes to actually put a treaty on the table and look at whether it is acceptable the community, the wider Victorian community, will understand and know what it means, what it is about and will hopefully be accepting of it.