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Bundle of rights: Examples of rights available under statewide and local Treaties

By July 14, 2020 July 22nd, 2020 No Comments

The Assembly is seeking community input on the development of these bundles of rights, and what is important to community members in this process. If you want to see more or see something different, then let us know.

The best way to share your views is through your local Assembly member. You can be connected with your local member and find more information using the details below.

  • 1800 TREATY (87 32 89)
  • www.firstpeoplesvic.org
  • enquiries@firstpeoplesvic.org

Examples of rights available under statewide and local Treaties 

One of the first decisions for the Assembly was to decide the type of Treaty model that will bring about the best benefits for Victorian Aboriginal communities.

In June 2020, the Assembly agreed to adopt a negotiating position that includes both statewide and local Treaties.

The rights that might be considered while negotiating a single Treaty with a statewide Aboriginal body would differ to what could be on the table for local Treaties with different groups.

This paper expands on what opportunities, implications, potential limitations, and examples could be available under statewide and local Treaties.

These are only examples intended to initiate a discussion. It will ultimately be up to the Assembly, guided by community, research and international examples, to determine what should be on and off the table in Treaties negotiations.

Truth-telling

Rights may be covered in a: 

  • Statewide Treaty 
  • Local Treaties  

Truth-telling is an important tool that can address the historic injustices and present-day consequences Aboriginal Victorians have experienced since colonisation to encourage healing, understanding and reconciliation.

It presents an opportunity for Aboriginal Victorians to communicate our experiences to perpetrators and can take many different forms at varying scales. Options could include an inquiry, formal apology, education, and communication through art. Truth-telling models from broader Aboriginal communities include the proposal for a Makarrata Commission.

An example of truth-telling resulting from modern Treaty-making is the establishment of the Truth
and Reconciliation Commission (TRC) in British Columbia, Canada. The TRC used the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as its ‘framework’ in developing 94 calls to action to hold the Canadian Government accountable for past social, economic, and cultural injustices.1

Because truth-telling can exist in many different forms and to different scales, it could be considered under a statewide Treaty or local Treaties.

Recognition of sovereignty

Rights may be covered in a: 

  • Statewide Treaty  
  • Local Treaties 

Treaties can be defined as being between two or more sovereign political entities. Determining Treaty models therefore influences how sovereignty is organised and practiced over Country.

There are a range of options for how sovereignty could be recognised under statewide or local Treaties. For example, at State level, a body could voice sovereignty on behalf of a confederation of Aboriginal Victorian groups or as a new pan-Aboriginal political entity. Where Treaties are negotiated at a local level, individual groups may rely on their own inherent sovereignty as Traditional Owners of Country.

Each of these decisions influences how sovereignty could be exercised, for example at a higher level, a statewide Treaty could support law-making, whereas at a local level, Treaties could be tailored to grant more powers to Traditional Owner groups.

Self-governance

Rights may be covered in a: 

  • Statewide Treaty  
  • Local Treaties 

Aboriginal self-governance could involve integrating another level or form of government into the current existing State Government.2 There are countless approaches to how self-governance could be carried out unique to different groups’ needs, however, some broad considerations could include education, health, language, social and welfare services, housing, and policing, for example.

In British Columbia, Canada, First Nations groups have limited independent self-governance borne from modern treaty-making processes. These are underpinned by a Constitution and law-making abilities over Treaty-making lands and provision of public services.3 Comparatively, Māori governance in New Zealand is integrated into pre-existing colonial government structures in the form of reserved Māori seats in Parliament supported by a Māori electoral roll.4

A form of self-governance already in place is the establishment and control of Aboriginal Community Controlled Organisations (ACCOs) and Co-Operatives by Aboriginal Peoples that deliver services and address issues in a culturally appropriate manner. Services include health, childcare and education, advocacy, criminal law representation, legal services for victims of family violence and sexual assault, and a myriad of other critical community services and cultural strengthening activities. Strengthening and leveraging ACCOs could be a consideration in Treaties.

Another form of self-governance could be to explore Indigenous data sovereignty, that is, Aboriginal people managing how data about their peoples is collected, stored, maintained, and used. Examples include data about health, justice, education or for genealogical purposes. Data is an important cultural, strategic, and economic asset. Data sovereignty allows for First Nations Peoples to determine and meet their own communities’ needs, aspirations, and strategies5.

Although self-governance in different forms is possible under statewide and local Treaties, issues are only up for negotiation where the State has jurisdiction and the Commonwealth does not have overriding powers. For example, responsibilities exclusive to or overridden by the Commonwealth are therefore not able to be addressed by a Victorian Treaty include some environmental law, Commonwealth property, some forms of taxation, and some welfare payments.

Economic development

Rights may be covered in a: 

  • Statewide Treaty  
  • Local Treaties 

Economic development in Treaties presents significant options in terms of the opportunities, beneficiaries, scales, and settings available to be considered for negotiation. Economic development in different forms could therefore be considered under either a statewide or local Treaties but would be shaped according to the model selected.

There are significant opportunities for strengthening pre-existing statewide support systems that are driven by community to achieve its aspirations, for example work already being carried out in small business and regional development.

Designated seats for Aboriginal people in State Parliament

Rights may be covered in a: 

  • Statewide Treaty 

An option available for a statewide Treaty would be to use the community’s collective leverage to negotiate reserved seats for Aboriginal Victorian representation in the State Parliament.

For example, in New Zealand the Māori Representation Act 1987 designated four Māori seats in the
New Zealand Parliament, which was later amended by the passage of the Electoral Act 1993, which determined the number of Māori seats in relation to the number of Māori voters in an electorate (as is the case of general seats).6

Limitations of this model in the New Zealand context include experiences of discrimination and inequalities, questions of limitations to self-governance, and issues with the proof of ancestry of voters to name a few.

Other options include exercising sovereignty under modern Treaties by establishing a Traditional Owner- led Parliament and utilising the Uluru Statement from the Heart as a voice to the current Victorian Parliament. Having all three options operating together could be valuable in influencing government. 7

Transfer and buy backs for Country

Rights may be covered in a: 

  • Local Treaties 

Local Treaties could allow Aboriginal Victorians to negotiate transfers and buy backs of Country with the State, returning ownership and care of Country to Traditional Owners and supporting long-term, sustainable economic development.

An example of what this could look like in practice at a local level is the recent South West Native Title Settlement by the Noongar People in Western Australia.

Noongar Native Title claims were settled involving a package of benefits that encompassed about 200,000km2 of land. Benefits included recognition of the Noongar People through an Act of Parliament, a perpetual trust ($50M per annum over 12 years) which will manage estate land (320,000 ha), co-management practices for National Parks, establishment of regional corporations and central services ($6.5M for initial establishment and $10M per annum over 12 years), a housing program along with refurbishment funding (121 properties and $10M), and a land fund worth up to $46.85M, among a range of other benefits.8

Transfers and buy backs, as they are currently imagined in Australia, rely on a willing seller. Mechanisms do not exist for the compulsory acquisition of land, or control over the price that the land may be valued or sold at.

Taxation recognising unique position of Aboriginal Victorians

Rights may be covered in a: 

  • Statewide Treaty 
  • Local Treaties 

An opportunity under both of the Treaty model options is taxation reform, recognising the unique position of Aboriginal Peoples in the State. Potential sources of different taxation treatment could include land, gambling, and motor taxes, council levies and the ‘Pay the Rent’ campaign, with options including exemptions or different levels of taxation or the direction of taxation towards specific programs benefitting Aboriginal Victorians.

Sales and income taxes would be excluded from consideration as the Commonwealth exclusively controls these forms of taxation.

Criminal and civil law and justice reform

Rights may be covered in a: 

  • Statewide Treaty 

Reforms to the legal system could be used to address the over-representation of incarcerated adult Aboriginal communities, who make up just 2 per cent of the total population of Australia9 but 28 per cent of the adult prison population,10 as well as other prominent issues related to the enduring systemic racism embedded in the current justice system, for example the deaths of Aboriginal Peoples in custody.

A single, statewide Treaty could consider a range of reform actions at different scales.

At a broader level, Treaty negotiations could consider approaches such as those recommended by the Australian Law Reform Commission which conducted an inquiry into Aboriginal incarceration rates. Recommendations are designed around ‘justice reinvestment’;11 where resources are redirected into local communities and strategies focus on preventative and early intervention measures, information sharing between government departments, establishment of an Aboriginal-led independent justice reinvestment body, to name a few solutions.12

Practices currently taking place in Victoria which could be further strengthened include the operation of the Koori Court, which seeks a more culturally appropriate sentencing system. Koori Court supports a more informal, clearer sentencing process that aims to reduce reoffending and incorporates Aboriginal support people including Elders, a Koori Court officer and allows for the presence of relevant ACCOs if needed.13

Redress for state policies (e.g. stolen wages)

Rights may be covered in a: 

  • Statewide Treaty 

Treaty may be used to secure redress schemes for past policies of the State Government that harmed Aboriginal communities. Redress can mean actions to seek to right a past wrong, and could include apologies, truth-telling, access to support services and compensation. An example of a redress scheme is the Stolen Generations redress scheme, which was announced in March 2020 by the Victorian Government, and has been operationalised in other states.

Redress schemes may be an appropriate way to address government wrongs such as stolen wages, frontier violence, and racist policies that impacted access to justice, health, housing and employment.

As these actions were generally applied to Aboriginal communities on a statewide basis, it is therefore most appropriate to deal with these issues through a Treaty agreement that covers the State. While it is possible to seek localised redress schemes, it is highly unlikely that the State would agree to this as it has obligations and expectations to offer the same rights to anyone impacted by the scheme.

Centring and embedding the histories of Aboriginal Peoples in schools

Rights may be covered in a: 

  • Statewide Treaty  
  • Local Treaties 

Centring and embedding Aboriginal history in schools would celebrate the strength and complexity of First Nations peoples’ lives, histories and cultures. Educating Victoria’s younger generations in a way that is led by Aboriginal people could be considered under both statewide and local Treaties at different scales and approaches.

A current, local example is the partnership between the Victorian Aboriginal Education Association Incorporated (VAEAI), the Victorian Aboriginal Languages Corporation (VACL) and the State to roll out Country-specific Aboriginal language and cultural education in early childhood, schools, and vocational training. Thornbury and Melton West Primary Schools, for example, have worked with Traditional Owners to adopt Woi Wurrung language and Wurundjeri culture into their curriculums.14

VAEAI seeks to address education outcomes by centring Aboriginal Peoples’ culture in education and training and increasing the broader community’s awareness of the nation’s history and culture.15 Treaties could consider leveraging, strengthening and advancing the work undertaken by these pre-existing organisations and programs or creating new or complementary programs.

Social and welfare

Rights may be covered in a: 

  • Statewide Treaty  

Leveraging the collective power of First Nations Peoples across the State could allow for a range of social and welfare issues to be addressed by Treaties. Examples of rights that could be considered include family violence prevention, child protection, housing schemes, caring for Elders and issues associated with women and youth.

Treaties could also consider building on and leveraging the existing work of Victorian ACCOs focused on social and welfare issues.

As these policies are applied to Aboriginal communities on a statewide basis, it is therefore most appropriate to deal with these issues through a Treaty agreement that covers the State. While it is possible to seek localised policy changes, it is highly unlikely that the State would agree to this as it has obligations and expectations to offer the same rights to anyone impacted by these policies across Victoria.

Overriding Commonwealth powers mean some social and welfare issues are not able to be considered in Victorian Treaties, including some issues around aged care and some forms of welfare payments.

Reviving and strengthening local languages and cultures

Rights may be covered in a:   

  • Local Treaties 

Strengthening and growing knowledge of languages is essential in maintaining Aboriginal peoples’ identities, histories, traditions, and memories, in addition to fostering reconciliation and peace building.16

The United Nations declared 2019 the Year of Indigenous Languages, recognising the decline in Indigenous languages and associated negative impacts on Indigenous peoples.

Local Treaties present an opportunity to focus on the importance of Aboriginal languages and to awaken and protect them, for example, by embedding them in education systems.

More broadly, Treaties could also support cultural revival where Aboriginal cultural traditions and customs unique to different groups are recognised and revitalised in Victoria. The UNDRIP sets out cultural revival as developing, maintaining, and protecting past, present, and future manifestations of culture.17 Restoring names to Country, and therefore recognising the history of that land such as Budj Bim National Park, is an example of the many opportunities available in reviving culture in Victoria.

It is likely achieving cultural revitalisation and taking actions such as integrating unique Aboriginal languages into the Victorian education system would require local or combined Treaties due to the diversity of languages and cultural practices unique to Aboriginal groups across Victoria.

Caring for Country (e.g. agriculture, water, fisheries, and forests)

Rights may be covered in a: 

  • Local Treaties 

Local Treaties could allow for Aboriginal Victorians’ additional rights to lead on and manage our Country including agriculture, water, fisheries, forests, and traditional systems of land management.

An example of protecting traditional ways of environmental management on Country at a local level is the recognition and protection of the Budj Bim Cultural Landscape, which is listed as a United Nations Educational, Scientific, and Cultural Organisation (UNESCO) World Heritage site. Specifically, this site recognises the complex system used by the Gunditjmara people to trap and harvest kooyang.18

These rights would complement and not take away from existing rights under the Native Title Act 1993 (Cth), the Aboriginal Heritage Act 2006 (Vic) and the Traditional Owner Settlement Act 2010 (Vic).

Due to the diversity of the Victorian landscape and unique needs of Traditional Owners of Country, environmental management issues should only be considered under local Treaties with different groups.

Due to overriding Commonwealth powers, some issues may not be considered under Victorian Treaties including managing Commonwealth-owned property and some environmental law.

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References

1 ‘Frequently Asked Questions: Truth and Reconciliation Commission Calls to Action’ Government of British Columbia, 28 May 2020, https:// www2.gov.bc.ca/gov/content/governments/indigenous-people/new-relationship/frequently-asked-questions-truth-and-reconciliation- commission-calls-to-action.

2 Thomas J. Courchene, ‘Aboriginal Self-Government in Canada’ Parliament of Australia, 28 May 2020, https://www.aph.gov.au/About_ Parliament/Senate/Powers_practice_n_procedures/~/~/link.aspx?_id=2720D6736F174A0CAA2474FAD79B4FB9&_z=z.

3 ‘Self-Government’ British Columbia Treaty Commission, 26 May 2020, http://www.bctreaty.ca/self-government.

4 ‘The Origins of the Māori Seats’ New Zealand Parliament Pāremata Aotearoa, 26 May 2020, https://www.parliament.nz/en/get-involved/ features-pre-2016/document/00NZPHomeNews201109011/the-origins-of-the-m%C4%81ori-seats.

5 ‘Key Principles’ Maiam nayri Wingara Aboriginal and Torres Strait Islander Data Sovereignty Collective, 7 July 2020, https://www. maiamnayriwingara.org/key-principles.

6 ‘The Origins of the Māori Seats’ New Zealand Parliament Pāremata Aotearoa, 26 May 2020, https://www.parliament.nz/en/get-involved/ features-pre-2016/document/00NZPHomeNews201109011/the-origins-of-the-m%C4%81ori-seats.

7 ‘2020 Sovereignty in the Victorian Context’ Federation of Victorian Traditional Owner Corporations, 19 May 2020, https:// static1.squarespace.com/static/5b337bd52714e5a3a3f671e2/t/5e2bbf0f8ae9853306b7d194/1579925283265/1134_Fed.T.O_ Treaty+Paper+%232+revised+final.%C6%92.pdf.

8 ‘Settlement Agreement’ South West Aboriginal Land and Sea Council, 19 May 2020, http://www.noongar.org.au/settlement-agreement.

9 ‘3238.0.55.001 – Estimates of Aboriginal and Torres Strait Islander Australians, June 2016’ Australian Bureau of Statistics, 26 May 2020, https:// www.abs.gov.au/ausstats/abs@.nsf/mf/3238.0.55.001.

10 ‘4517.0 – Prisoners in Australia, 2018’ Australian Bureau of Statistics, 26 May 2020, https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20 Subject/4517.0~2018~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%20~13.

11 ‘Pathways to Justice-Inquiry into the Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Summary Report’ Australian Law Reform Commission, 26 May 2020, https://www.alrc.gov.au/wp-content/uploads/2019/08/summary_report_133_amended.pdf.

12 Misha Ketchell ‘As Indigenous incarceration rates keep rising, justice reinvestment offers a solution’ The Conversation, 26 May 2020, https:// theconversation.com/as-indigenous-incarceration-rates-keep-rising-justice-reinvestment-offers-a-solution-107610.

13 ‘Koori Court’ Magistrates’ Court of Victoria, 25 May 2020, https://www.mcv.vic.gov.au/about/koori-court.

14 ‘Koorie Language Programs across Victoria’ Victorian Aboriginal Education Association Incorporated, 26 May 2020, https://www.vaeai.org.au/ koorie-language-programs-across-victoria/.

15 ‘About’ Victorian Aboriginal Education Association Incorporated, 26 May 2020, https://www.vaeai.org.au/about/.

16 ‘Indigenous Languages: matter for development, peace building and reconciliation’ United Nations Educational, Scientific and Cultural Organization, 25 May 2020, https://en.iyil2019.org/.

17 ‘United Nations Declaration on the Rights of Indigenous Peoples’ United Nations, 19 May 2020, https://www.un.org/development/desa/ indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.

18 ‘Budj Bim Cultural Landscape’ United Nations Educational, Scientific and Cultural Organization, 19 May 2020, https://whc.unesco.org/en/ list/1577/.

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