By Catriona May
Last year, the Victorian Government passed legislation to support and protect future treaty negotiations with the Aboriginal community. Other states and territories are beginning to take similar steps. Members of the MLS community say negotiations could ultimately lead to meaningful change.
Australia is one of the few settler nations that doesn’t recognise its First Peoples’ sovereignty before Europeans arrived, either in its constitution or through a formal treaty.
This leaves Indigenous Australians’ basic rights vulnerable and means the hurt caused by past wrongs remains unresolved.
"We are communities who are dealing with 200 years of intergenerational trauma,” says Victorian Treaty Advancement Commissioner Jill Gallagher, a Gunditjmara woman from western Victoria.
There is a lot of hurt. There is a lot of healing to be done.
But the treaty process in Victoria, the early stages of which Ms Gallagher is supporting communities on, could commence meaningful change.
Making history in Victoria
Last year, the Victorian Government responded to long-standing calls from the Aboriginal community by passing legislation to support and protect future treaty negotiations.
The role of Gallagher’s office is to maintain momentum and establish the body that will continue the treaty preparations – the recently-named First People’s Assembly of Victoria.
She says treaties are a part of the healing that needs to happen, and an important step towards cementing Aboriginal-controlled systems, which research shows deliver better outcomes.
“Everyone acknowledges the need for change,” she says. “The situation now cannot go on. And for the past 30 years, those in power – politicians – have basically assumed treaty was not a viable option.
"What’s happening now turns that assumption on its head.
The Assembly will blend “traditional ways of doing business and the ability to operate in a contemporary world”, Gallagher says.
A vote to help determine its members will be held in July.
It will include an Elders’ Voice and seats for formally-recognised Traditional Owner groups.
“And it includes a process which is open to every Aboriginal person (in the Victorian community), because that is vital among our communities,” Gallagher says, noting that all Aboriginal community members living in Victoria will be eligible to vote (even if their Country is in another state), as well as Victorian Traditional Owners living elsewhere in Australia.
The momentum in Victoria stands in stark contrast to what is happening (or, perhaps more accurately, not happening) at the federal level. The then-Turnbull Government’s 2017 rejection of a constitutionally enshrined Indigenous “voice” to Parliament, recommended in the Uluru Statement from the Heart, continues to frustrate many Indigenous and non-Indigenous Australians alike.
State-based treaties (which Aboriginal leaders point out would ideally complement, not replace, a Commonwealth solution) could start to offer the kind of significant change Indigenous Australians seek.
Healing past wrongs
At its best, treaty could help mend the past and generate better outcomes for Indigenous Victorians, according to Senior Indigenous Fellow at Melbourne Law School Eddie Cubillo.
“There’s a whole heap of hurt that’s happened historically, right across the country, and duly compensating people for their loss will be an important part of the process,” says Cubillo, whose Country is in the Northern Territory.
“Not only the destruction of families but also of culture, language and connection to lands.
“Hopefully it will also go some way towards mending some of the systemic issues that we have within Australian society towards Aboriginal Australians – in this case, Victorians – which see our people experience such poor rates of mental health, high rates of incarceration, short life expectancies and on it goes.”
The treaty process has been led by the Aboriginal community from the start, and that will continue as negotiations go on. And while it is likely to be a years-long process with complications along the way, Gallagher says their determination shouldn’t be underestimated.
“We have fought for our rights for 200 years,” she says.
“Everything that has been gained so far has come through persistence and determination. Nothing has come easy. Treaties will not be easy either. We know this. We are prepared for it.
There will be times when momentum ebbs and flows, but I think what is important is the underlying determination from Aboriginal communities.
Professor Kirsty Gover, a Melbourne Law School expert in Indigenous law and politics in settler states, is also optimistic about treaty, seeing it as a potential first step towards repairing flaws in Australia’s constitutional foundations.
“Because settler states like Australia are founded on coercive colonisation and dispossession, it’s not easy for them to feel comfortable,” she says.
“Their legitimacy as states is in question.
“Popular sovereignty, where the state’s authority is granted by the people’s consent, doesn’t exist the way it does elsewhere, because Indigenous peoples did not consent to be governed by the state.
“Settler states are unique in that respect.”
Fundamentally, Indigenous Australians never ceded the lands taken from them by force, so “they don’t get to exercise their own sovereignty”.
Which is where treaty can help heal past wrongs.
“The symbolism of the Government actually asking how it should interact with Indigenous people is vitally important,” Gover says.
Treaty may also go some way towards filling the legal gaps that have left Aboriginal people exposed. Without a federal or constitutional bill of rights, the rights of minorities are left woefully unprotected.
“It means Indigenous people only have the Racial Discrimination Act 1975 (Cth) as a vehicle for claims, and the only provision it provides is something called ‘special measures’, which is essentially affirmative action,” Gover says.
“When Indigenous groups have made a collective claim against the Government relating to historic rights to land or to govern themselves, the legal framework has struggled to accommodate them.”
The fallout for individuals can be grave too. In 2013, when Palm Island woman Joan Maloney challenged her arrest for alcohol possession under the Act, her conviction was upheld on the basis that the restrictions fell under ‘special measures’ within the Act.
That was despite the High Court finding the law banning alcohol possession to be discriminatory, and despite the Palm Island community not being properly consulted about the measure.
“That’s exactly the kind of thing that would be very difficult to justify if there was a treaty in place,” Gover says.
Bringing the community together
In Cubillo’s view, Victoria has always been a “leading light for social justice issues”, but he notes that other states and territories are also taking steps towards negotiating treaty.
Last year, the Northern Territory Government signed a memorandum of understanding pledging to work towards treaty and in February this year it appointed Professor Mick Dodson as the Territory’s Treaty Commissioner.
Dodson will consult with Aboriginal people, representative bodies and community groups about their support for treaty, determine whether there should be one or multiple treaties, and develop a framework to further treaty negotiations with the Northern Territory Government. He will prepare a discussion paper within 12 months and in a further 18 months provide recommendations about the best model for future negotiations.
The Queensland Government has also signalled that it may commence a treaty process. Deputy Premier Jackie Trad indicated in July last year that they would consider agreement-making with the state’s Aboriginal and Torres Strait Islander people, noting that treaty had been a part of Queensland Labor’s policy for some time.
In South Australia, a process had begun to negotiate treaties with the state’s Aboriginal nations, but it stalled following the change of government in last year’s state election.
Gallagher says that other states are looking at the Victorian process “with great interest”.
“There is no doubt that what we are doing in Victoria is influencing what will happen elsewhere across Australia,” she says.
“There’s an opportunity for our mob here in Victoria to be the first to do it, although that’s not the whole story.
“It’s not a race – it’s more important to be done right than done quickly – but whichever mob can be the first to make it happen in Australia will be remembered as a community that made giant steps forward, and helped show others how to do so.”
For Gallagher, the treaty process will be stronger as more people demonstrate support.
“It’s up to all of us, whatever our background, to reconcile the unresolved questions of the colonisation of this land,” she says, recommending Reconciliation Victoria and Australians for Native Title and Reconciliation (ANTaR) as good organisations for non-Aboriginal people to follow.
Cubillo likens the support needed to the groundswell of public support for same-sex marriage.
“It’s about fundamental human rights,” he says.
And we’re just three per cent of the population. If we’re going to see real change, we need the majority of Australians to stand with us, just like they did for marriage equality.
“We’re not going anywhere. Aboriginal people have fought this long and experienced a whole heap of mistreatment. And we will keep going.”
Banner image: Jill Gallagher AO, Victorian Treaty Advancement Commissioner (centre), addressed the Victorian Parliament as treaty legislation was introduced in March 2018.
Credit: Julian Smith, AAP Image
This article originally appeared in MLS News, Issue 21, June 2019