This article was prepared by our Reconciliation Action Plan Working Group and co-authored with Jaramer Legal.
The Northern Territory (NT) Treaty Commission (the Commission), headed up by Commissioner Mick Dodson AM, released its Discussion Paper on 30 June 2020, as part of the second stage of its consultation program.
Purpose of the Discussion Paper
The purpose of the Discussion Paper is to inform an extensive, Territory-wide community consultation process with First Nations Territorians, led by the Treaty Commissioner, to assess whether a consensus or majority view exists on all or any of the matters included in the Discussion Paper.
The Discussion Paper provides detailed information and invites discussion and consultation on:
- why a treaty is needed in the NT;
- the minimum standards required;
- the scope and content of a treaty/ treaties;
- the legal context for treaties in NT; and
- national and international best practice.
The Discussion Paper also puts forward options for a treaty-making framework and negotiation model.
Over the next ten months, the Commissioner will consult in person with First Nations Territorians in remote, regional and urban locations, taking advice from the NT Aboriginal Land Councils and the NT Government on suitable locations for regional and remote consultations. Audio recordings of the Executive summary will also be made available in the major Aboriginal languages of the NT. The Discussion Paper makes clear that “[a]ll Aboriginal people need to be heard through this consultation process, including women, boys and girls”.
The importance of treaty for Australia and the NT
Unlike other Commonwealth nations like Canada and New Zealand, Australia does not have a treaty with its first peoples. Many First Nations Australians have been demanding recognition of their rights, and calling for settlements or treaties for many generations.1
In the NT, the 1963 Yirrkala Bark Petitions protested the lack of consultation for the excision of Reserve land (including traditional hunting grounds and sacred sites) for bauxite mining leases.2
The 1988 Barunga Statement presented to Prime Minister Bob Hawke at the Barunga Festival called on the Commonwealth Parliament to negotiate with First Nations “a Treaty or Compact recognising [their] prior ownership, continued occupation and sovereignty and affirming [their] human rights and freedoms.”3
More recently, the Uluru Statement from the Heart calls for a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about First Nations peoples’ history. The Referendum Council’s 2017 Report4 noted that agreement-making or treaties was the second most endorsed reform during the national Regional Dialogues; it was viewed as an option that could empower communities to take control of their lives.
Like the NT, some Australian states have in recent years commenced their own journeys toward treaty. Victoria is by far the most progressed, having started its “partnership of equality” journey in 2016. Victoria explained that a key focus of their process is to create a better future for all Victorians and enable self-determination for Aboriginal people. In 2019 the First Peoples’ Assembly, a democratically-elected body, was set up to create a framework to guide the treaty negotiations. In June 2020, the Assembly voted to call on the State Government to also establish a truth and justice commission.5 In response, on 11 July 2020 the Victorian Government announced that it would establish a truth and justice process to formally recognise historic wrongs for Aboriginal Victorians.6
Queensland has also recently progressed its treaty-making process, with the government releasing the Path to Treaty Statement of Commitment and announcing on 13 August 2020 that a new Treaty Advancement Committee will be established to provide independent advice on the path to treaty.7
The Barunga Agreement
In June 2018 at the Barunga Festival, the Chief Minister of the NT and the Chairs of the NT Aboriginal Land Councils signed the Barunga Agreement – A Memorandum of Understanding (Barunga Agreement) to develop a framework to negotiate a treaty with the First Nations of the NT.
The Barunga Agreement was historic. It states that the objective of any treaty must be to achieve real change and substantive, long term benefits for Aboriginal people. The parties agreed key foundational propositions, being that First Nations Territorians:
- were the prior owners and occupiers of the land, seas and waters;
- were self-governing in accordance with their traditional laws and customs; and
- never ceded their sovereignty.
The Barunga Agreement also identified the need for robust truth telling to deal with unfinished business. The parties’ agreed that deep injustice has been done to First Nations Territorians, including violent dispossession, the repression of their languages and cultures, and the forcible removal of children from their families, which have left a legacy of trauma, and loss that needs to be addressed and healed.
These foundational propositions and emphasis on truth-telling are key features of the Discussion Paper.
Key elements of the Discussion Paper
The Discussion Paper emphasises that truth-telling is “at the core of any treaty negotiations and is also at the heart of documenting the unfinished business.” Unfinished business is defined in the Discussion Paper as “the yet to be met legitimate grievances of Aboriginal and Torres Strait Islanders arising directly from colonisation and the ongoing consequences of colonisation.”8
The urgency of truth-telling is predicated in the Discussion Paper on the understanding that it is not a complementary product to the treaty process, but is fundamental to its success. Consistent with its emphasis on the need for truth-telling, the Discussion Paper devotes considerable length to contextualising and explaining the historical and ongoing injustices dealt to First Nations Territorians.
A NT Truth-telling Institute is proposed as a neutral institutional setting that would best serve the purposes of truth-telling. This is also intended to ensure that fact-finding in the treaty negotiations is separate from the truth-telling process. The Discussion Paper suggests that truth-telling should not become caught up in the negotiation process.
NT legal context
The NT’s status as a Commonwealth Territory rather than a state gives rise to legal peculiarities which must be addressed during the treaty process. Most significantly, section 122 of the Australian Constitution gives the Commonwealth Government the power to enact or amend its own legislation to overrule any treaty enacted by the NT Legislative Assembly. Establishing support for the treaty at the Commonwealth level is therefore vital to ensuring its long term success. As the Discussion Paper points out, there is no constitutional barrier preventing the Commonwealth from playing a positive role in the NT treaty process.
The Discussion Paper also acknowledges that treaty development must have regard to compliance with existing Commonwealth laws such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Native Title Act 1993 (Cth).
The framework suggested by the Discussion Paper involves the establishment of the following bodies:
- Treaty Commission: An Indigenous-led government funded commission with its independence protected by legislation. The role of the Treaty Commission would be to facilitate the treaty negotiations and it would not have a role in treaty implementation once the treaty is legislated.
- Treaty Tribunal: An independent tribunal to resolve disputes which arise under the dispute resolution clauses of the treaty.
- Office for First Nations Treaties: A government authority tasked with coordinating all government responses relating to the treaty-making process. To prevent actual or perceived conflict of interest, it is suggested that the treaty office report to a different Minister than the Treaty Commission.
The Discussion Paper borrows from the British Colombia and Canadian Government’s six-stage “made-in-BC” treaty-making process. Inspiration is also taken from treaty frameworks developed in New Zealand and Scandinavia.
The Discussion Paper suggests the following six-stage process:
- Statement of Intent to Negotiate Submitted by the First Nation – This requires the identification and establishment of the First Nation body. The Treaty Commission will determine when the First Nation body can proceed to Stage 2.
- Readiness to negotiate – This involves a First Nations body and the NT Government meeting a checklist drafted by the NT Treaty Commission to ensure they are each ready to negotiate, have equality of standing and have committed adequate resources.
- Negotiation of a Framework Agreement – This is described as preparing the “table of contents of the treaty”.
- Negotiation of an Agreement-in-Principle – This involves discussion and negotiation on the elements outlined in the framework agreement. The goal is to reach agreement on the topics to form the basis of the treaty.
- Negotiation to finalise a Treaty – This involves resolving all technical and legal issues so that the final agreement can be ratified and signed.
- Implementation of the Treaty – This will depend on the contents of the treaty, but the Discussion Paper suggests four phases involving local decision-making agreements, the establishment of First Nations local government bodies, a First Nations regional authority and finally, First Nations self-government in accordance with the terms of the treaty.
The Discussion Paper champions Indigenous leadership in progressing the treaty process. For example, the Interim Treaty Commission is to be comprised of a majority of First Nations commissioners to be nominated from various Indigenous organisations and communities. Similarly, it is suggested that a First Nations citizens’ vote be taken on a treaty, with a majority of eligible voters supporting the treaty before it can be agreed.
Next Steps – Submissions and Final Report
Any submissions on the Discussion Paper must be made by 30 June 2021, by email to email@example.com or by post to the Commission.
Following consultations, the Commissioner will assess whether a consensus or majority view exists on any of the matters in the Discussion Paper and make recommendations to the Chief Minister of the NT on the outcomes of the consultations and next steps, and propose an appropriate framework for treaty negotiations in a final report by March 2022.