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Treaty Authority and Other Treaty Elements Bill 2022

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Samantha Ratnam
Leader of the Victorian Greens
16 August 2022

 I want to start today by acknowledging the traditional owners of the land on which we speak today, the Wurundjeri people of the Kulin nation. I also want to pay my respects to elders with us here today, to members of the First Peoples’ Assembly of Victoria and to all the First Nations people that have worked so hard to develop this legislation and the Treaty Authority agreement.

The Greens warmly welcome the introduction of the Treaty Authority and Other Treaty Elements Bill 2022 into Parliament. This authority is the centrepiece of the treaty process and is critical to its success. Treaties are fundamental to healing the deep wounds caused to First Nations communities by the colonisation of this land. For too long First Nations people have been vilified, traumatised and denied their rights to land, economic opportunity and self-determination. Treaties are the way to begin to fix this wrong. Treaties are an agreement between the government and the First Peoples where, on equal footing, parties negotiate reparations, rights to land and water, rights to self-govern and practice culture, and rights to economic opportunities. It is an opportunity to negotiate how the story of this country, its landscapes and its institutions can be revisioned to reflect the true history, not the whitewashed version told for the last few hundred years.

Treaty is the opportunity to heal and to create a better future based on mutual respect, rights and empowerment of the First Peoples of this land. During my speech today I will be reading out some quotes provided by members of the First Peoples’ Assembly of Victoria about the treaty process and the significance of the Treaty Authority bill and agreement. It is always fundamental on First Nations issues that First Nations voices are at the heart of the debate—in this case from the people who have been involved in bringing this authority to life. I will start by reading a quote from Uncle Andrew Gardiner, a Wurundjeri Woi Wurrung reserved seat holder and traditional owner of the land on which we speak today. His quote gives some context to this bill:

The Treaty Authority Agreement is another historic marker along the process for our people in negotiating their Treaties with the State Government and another step closer for the Assembly in achieving that goal.

As outlined in the Advancing the Treaty Process with Aboriginal Victorians Act 2018 and further articulated in the Treaty Authority Agreement established in this bill, the role of the Treaty Authority is to facilitate and oversee treaty negotiations, administer the treaty negotiation framework, assist parties to resolve disputes that may arise in treaty negotiations and carry out research to support and inform treaty negotiations. This is the cornerstone body in the treaty process.

The independence of this authority and ensuring that it is empowered to uphold lore, law and cultural authority is absolutely critical to the treaty process. This will help decolonise this process to the extent possible in the current circumstances. Leanne Miller, Dhulanyagen Ulupna of the Yorta Yorta people and member for the North East Region, articulates the role of the authority:

Treaty Authority Agreement is a significant legislation in Victorian History, it’s enacting the formation of an umpire in relation to First Nations Treaty making. A Treaty Authority will enact a deeper level of listening, Culture, a balance of Aboriginal LORE and Law.

Tracey Evans, Gunditjmara woman and member for the Metropolitan Region, articulates it further:

When we as First Peoples and Traditional Owners of Victoria stand strong in culture and lore we give the loudest voice to our people. The pathways of justice and upholding our inherent rights must be at the heart of the Treaty Authority work going forward.

So we are hearing just how critical ensuring culture, lore and First Peoples rights has been to the design of the Treaty Authority. This bill establishes the novel legal arrangements of the authority as an unincorporated body with the roles and responsibilities of a body corporate. This will hopefully provide the legal parameters to secure its independence. We strongly welcome that the Treaty Authority’s funding is established in legislation, ensuring limited interference from the government without the accountability process of Parliament. It is important that its funding is not beholden to budget cycles.

This bill is in fact quite brief, and the details of the Treaty Authority’s process for the establishment, the structure and the accountability measures are contained within the Treaty Authority Agreement made between the state and the First Peoples’ Assembly of Victoria. The agreement lays out important processes and tenets for the authority members to be selected and to operate under. The central tenets of the Treaty Authority are as follows: upholding self-determination and empowerment of First Peoples, independence and impartiality, accountability, relationship-building, facilitation and integrity in the process for all. These are all very important tenets, and certainly the Greens support these.

It also recognises the United Nations Declaration on the Rights of Indigenous Peoples and specifies that Aboriginal lore forms a legal system and that Aboriginal lore and law have equal footing with the Western legal system. I just want to pause on this point for a moment. When the Greens were negotiating to pass the Advancing the Treaty Process with Aboriginal Victorians Bill 2018 we campaigned hard to have the United Nations Declaration on the Rights of Indigenous Peoples included in this bill as the guiding principle for the treaty process. At the time the government would only accept making reference to it in the preamble, which is the non-legally-binding section of the bill, as they did not want to be legally bound to upholding the principles of the UNDRIP. To me this raises important questions about how legally binding this Treaty Authority Agreement is if the government is willing to recognise the UNDRIP and Aboriginal lore in it. I will be asking more detailed questions about this in the committee of the whole. We certainly would not want to see this very important and admirable tenet of this authority and the standards regarding the accountability and structures being able to be weakened as they are not actually legally binding.

Moving on, the Treaty Authority Agreement stipulates that the structure of the authority will be no less than five and not more than seven members. This is a good and reasonable number of members to achieve accountability while maintaining tight management of the process.

It stipulates that if the number of members falls below five but is at least two, the Treaty Authority may continue to perform its functions and exercise its powers. Only when it falls below two will the authority cease until it has more than two members.

This is a little concerning, however, because just two members seems quite a low threshold for continuation of the authority’s work if we are to ensure a continued faith amongst the community in its independence, balance, accountability and integrity. So we will be asking further questions in the committee of the whole about this as well.

The Treaty Authority Agreement also lays out that a panel will select the Treaty Authority members. The panel will consist of one member from the First Peoples’ Assembly of Victoria, one from the state and three individuals nominated by agreement of the parties. I note that the selection process for the truth-telling process was similar to this, and there was some concern amongst the community as there were questions about the balance in the independent panel. So I very much hope greater focus will be brought to this process to ensure it will be free from such concerns.

In selecting the members of the Treaty Authority, the panel will be required to ensure that the appointment ensures the authority’s independence, that members are suitably qualified and competent and that the authority is culturally strong, transparent, fair, impartial and so on. These are deeply important criteria.

In summary, the Greens welcome and strongly support this treaty authority bill. We strongly support the tenets in it and believe that cultural authority as well as independence and accountability measures are critical design features, as so many First Nations voices have told us.

One thing the Greens spoke about in the other house, and I will mention here again, is the importance of this authority acting in accordance with the obligations under the treaty act for fairness and equity. Right through this process we have heard deep concerns from non-registered Aboriginal party (RAP) nations that they have not been provided with a reserve seat or an avenue for representation and participation in the First Peoples’ Assembly of Victoria and thus in the formation of the treaty framework. There is now a pathway, but significant barriers do remain to participation, including lack of secretariat funding for nations to do all the administrative work required.

The Treaty Authority must be a circuit-breaker. It must be a body trusted by all nations to uphold the tenets of impartiality and uphold self-determination and empowerment of all First Peoples. It must ensure that fairness and equity principles apply so that all nations that approach it can enter into negotiations with the state on an equal footing; little is more important to the integrity of the treaty process.

The values of equality for all First Peoples must also be extended to the administration of the self-determination fund, which this bill establishes as the responsibility of the First Peoples’ Assembly of Victoria. This fund must be significant in size and very fairly managed if it is to operate in accordance with the legislated obligation in the treaty act to create equal standing between the state and parties. Let me be clear: we are talking about the state with all its staffing, legal experts and financial resources being on equal standing with parties, including nations with little money or staff or experience with such negotiations. Equal standing is a critical legislated obligation agreed to by this government that we expect it to fully meet with the self-determination fund, and that means significant funds for First Peoples for equal staffing, upskilling, legal advice and community consultation for all applicants to treaty negotiations. Moreover, the distribution of the self-determination funds to First Peoples must be impartial, fair and equitable. So far the distribution of government funds within the treaty process has been far from equal, with non-RAP nations being excluded from funding. So now more than ever we need a commitment from everyone involved in this process that the self-determination fund must be managed impartially and with a commitment to fairness and the self-determination of all traditional owner groups.

The Greens will continue to be strong supporters of this treaty process. We will also continue to hold the government to account and push them to reflect and strengthen the integrity of the process so that the principles, values and tenets that are legislated are implemented. We will continue to fight for an inclusive, fair and just treaty process.

I would like to finish today with a quote from Jacinta Chaplin, Wadi Wadi member and member for North West Region. There is deep wisdom in her words and an important reminder of the significance of this process:

The past defined where we are now. What we do next will define what we become.

So much has been taken out of our control, the damage has been done. Now we are responsible for what is passed on to the next leaders

I believe in the aspiration of the Assembly and I am passionate about Community having voices. We can create unity amongst ourselves. We as a people are the only ones that can pass on our customs and practices and demand the government respect our ways as we are still here.

I believe we now have some solid structures in place and we will see the effects starting to roll out. This is our time to keep our culture strong and to lead the ways to continue our practices and to support the new leaders to care for Country and keep our traditions alive into the future.

I commend this bill to the house.

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Samantha Ratnam
Leader of the Victorian Greens
16 August 2022
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