PART A

1 Outline

This Framework is structured as follows.

(a) Part A explains the Treaty-making landscape, the purpose and principles of the Framework, and other foundational matters. It also provides for the commencement of the Framework and states that the Framework is binding on the Parties and all Negotiating Parties.

(b) Parts B to E and Schedule 1 set out the process for negotiating Treaties.

(i) Part B provides the process for Traditional Owner Groups and the State to enter into Traditional Owner Treaty negotiations. This includes the Minimum Standards they must meet to negotiate Treaties and the requirement for Traditional Owner Groups to form a First Peoples' Treaty Delegation to represent all Traditional Owners of Country for each Treaty.
(ii) Part C and Schedule 1 provide the process for the First Peoples' Representative Body and the State to enter into Statewide Treaty negotiations, including the Minimum Standards they must meet to negotiate a Statewide Treaty.
(iii) Part D provides the process for Additional Negotiating Parties to participate in Treaty negotiations.
(iv) Part E provides the process for conducting Treaty negotiations. This includes setting Negotiation Standards, providing that there are no matters that cannot or must not be agreed to in the course of Treaty negotiations, and outlining the subject matters that may be negotiated, how Interim Agreements are made and other process-related matters.

(c) Part F provides the process for formalising agreement to Treaties and Interim Agreements, including how parties to a Treaty or Interim Agreement will signify their assent.

(d) Part G sets out the mechanisms for enforcing Treaties.

(e) Part H sets out the reporting requirements in relation to Treaty negotiations and Treaties.

(f) Part I provides the process for the resolution of disputes arising in the course of Treaty negotiations or incidental to or in connection with Treaty negotiations.

(g) Part J contains definitions of the terms used in the Framework, interpretation rules and general provisions about how the Framework operates as an agreement.

2 Introduction

Treaty-making aims to build a new relationship between the State and First Peoples based upon realising rights defined by the UNDRIP.

The Parties to this Framework intend the Framework to operate differently from past frameworks in Victoria and Australia and reflect a new approach where the principle of self-determination and empowerment is central and informs its every element.

To give effect to this intention, in parts of the Framework, the Parties have outlined the rationale for certain provisions to explain how this Framework supports First Peoples to decide First Peoples' issues.

1.1 Elements required by the Treaty Act

The Treaty Act requires the Parties to work together to establish elements necessary to support future Treaty negotiations. These elements include:

(a) Treaty Authority:

(i) The Treaty Authority’s functions are set out in section 28 of the Treaty Act, section 8 of the Treaty Authority Act, the Treaty Authority Agreement and this Framework.
(ii) The Parties recognise the Treaty Authority as a necessary element to the Treaty Process and as the sole entity performing the functions of the Treaty Authority.
(ii) In accordance with its statutory functions, and to observe and uphold self-determination and empowerment, the Treaty Authority will administer this Framework consistently with the Treaty Authority Agreement.

(b) Treaty Negotiation Framework:

(i) This Framework is made under section 30 of the Treaty Act and for the purpose set out in clause 2.2.

(i) The Self-Determination Fund has the following purposes under section 36 of the Treaty Act:
- (A) supporting Traditional Owners and Aboriginal Victorians to have equal standing with the State in Treaty negotiations; and
- (B) providing a financial resource, independent from the State, that empowers Traditional Owners and Aboriginal Victorians to build capacity, wealth and prosperity.

(ii) The Aboriginal Representative Body will administer the Self-Determination Fund in a manner consistent with the statutory purposes.

(d) Dispute resolution process:

(i) The Parties have established a dispute resolution process by agreement under section 38 of the Treaty Act. That process will apply by its terms to the Parties.

2.2 Purpose

This Framework has been agreed by the Aboriginal Representative Body and the State as required under the Treaty Act for the purpose of providing for the negotiation of Treaties that, in accordance with section 30(3) of the Treaty Act:

(a) recognise historic wrongs;

(b) address ongoing injustices;

(d) support reconciliation;

(e) bring pride to Victorians;

(f) have positive impacts for Victoria;

(g) promote the fundamental human rights of Aboriginal peoples, including the right to self-determination;

(h) acknowledge the importance of culture to Aboriginal identity; and

(i) enhance the laws of Victoria.

2.2 Treaty Process

The Parties intend that the Framework will facilitate a Treaty Process that:

(a) restores the rightful place of the Cultural Authority of First Peoples;

(b) provides a recognition space for Aboriginal Lore and Law and First Peoples' rights and responsibilities;

(d) delivers better self-determined outcomes for all First Peoples.

2.3 Guiding principles

(a) The parties to the Treaty Process at all times must act in accordance with the guiding principles set out in Part 3 of the Treaty Act, which are:

(i) self-determination and empowerment;
(ii) fairness and equality;
(iii) partnership and good faith;
(iv) mutual benefit and sustainability; and
(v) transparency and accountability.

(b) The “parties to the Treaty Process” means the following:

(i) the Aboriginal Representative Body;
(ii) the State;
(iii) the Treaty Authority; and
(iv) any person, group or body participating in future Treaty negotiations, which includes all Negotiating Parties.

2.5 Central principle for Treaty

Without limiting clause 2.4, self-determination and empowerment is the central principle for Treaty-making and informs every element of the Framework.

Self-determination and empowerment means different things for different groups and will be practised in a variety of ways, but typically includes that First Peoples decide First Peoples’ issues. Treaty-making provides an opportunity for First Peoples to practise self-determination in the manner they choose.

Treaty-making in Victoria will include the negotiation of both a Statewide Treaty and Traditional Owner Treaties to reflect that the principle of self-determination and empowerment can be exercised by all First Peoples in Victoria collectively, and by Traditional Owner Groups in a manner directed to their particular circumstances.

2.6 Funding for Treaty Negotiations

(a) The Parties agree that funding to support Traditional Owners and Aboriginal Victorians to have equal standing with the State in Treaty negotiations will be addressed in the Self-Determination Fund agreement.

(b) The State acknowledges the importance of ensuring funding to facilitate its own good faith participation in Treaty negotiations.

2.7 Aboriginal Lore, Law and Cultural Authority

(a) Aboriginal Lore and Law are embedded within the dreaming, art, song, ceremony, dance and stories of First Peoples and exist as a body of authority that informs First Peoples' relationships, ways of doing business and governance structures.

(b) Since time immemorial, Traditional Owners have practised Aboriginal Lore and Law, customs and languages, and nurtured Country through their spiritual, material and economic connections to the land. Aboriginal Lore and Law have not been extinguished or frozen in time and continue to evolve and adapt.

(c) Cultural Authority derives from Aboriginal Lore and Law and culture. It includes rules about Eldership and who has authority to speak for Country. Cultural Authority is held with humility and respect and carries a responsibility to Country and community. It is relational, intergenerational, matriarchal and patriarchal.

(d) Traditional Owner communities and other First Peoples' communities have differing governance systems, kinship structures, cultural protocols and obligations, and differing rules about who has Cultural Authority. For this reason, the meaning of Aboriginal Lore, Law and Cultural Authority varies between communities, and its application within each community is a matter for each community to self-determine.

(e) Acknowledging the diversity of communities, for many First Peoples, Aboriginal Lore, Law and Cultural Authority are expressed by:

(i) respecting the authority of Country and the law of that Country;
(ii) understanding the role of Ancestors in creating and looking after law;
(iii) acknowledging that Aboriginal Lore and Law are demonstrated in good practice and proper behaviours;
(iv) respecting the different types of responsibility that First Peoples have to Country, to care for it, to look after one another as First Peoples, and to look after everyone while they are on Country;
(v) understanding that people and peoples have different kinds of authority that come from their different responsibilities to Country;
(vi) acknowledging that Traditional Owners are Country and speak as Country;
(vii) understanding that Aboriginal Lore, Law and Cultural Authority are inherent and embedded in First Peoples' communities and have the meanings given to them by those communities;
(viii) recognising that the foundational principles of Aboriginal Lore, Law and Cultural Authority do not change over time, but that their expressions adapt and respond to different places and circumstances;
(ix) acknowledging that kinship and relationships are at the core of Aboriginal Lore, Law and Cultural Authority; and
(x) knowledge and practices that are for Traditional Owners and are not to be shared.

(f) The matters set out in clause 2.7(e) are illustrations of Aboriginal Lore, Law and Cultural Authority and do not limit the meaning of those terms.

2.8 Aboriginal Lore, Law and Cultural Authority in the Treaty Process

The Treaty Process is intended to provide a recognition space for Aboriginal Lore, Law and Cultural Authority, for all parties including the State and parties who are not First Peoples.

The Treaty Authority will play a significant role in upholding and observing Aboriginal Lore, Law and Cultural Authority in the Treaty Process.

(a) Aboriginal Lore, Law and Cultural Authority are matters for First Peoples to identify.

(b) All parties will engage with Aboriginal Lore, Law and Cultural Authority respectfully and in good faith.

(c) The Treaty Authority will use its best endeavours to uphold and observe relevant Aboriginal Lore, Law and Cultural Authority in the Treaty Process, in the manner provided in clause 4.4.

3 First Peoples' Sources of Authority and Treaty

First Peoples' sources of authority inform Treaty-making. The following section aims to provide a greater understanding of the nature and content of the rights that give authority to First Peoples to negotiate and enter into Treaties. It explains but does not limit First Peoples' rights, nor does it limit the subject matters for Treaties that may be negotiated.

For Traditional Owners, the authority to negotiate Treaties derives from their inherent rights in relation to Country. Inherent rights cannot be taken away and are always there.

3.1 Inherent rights

The UNDRIP recognises that the inherent rights of Indigenous peoples derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies. Rights are inherent because they are not granted or delegated by the State. The source is Indigenous peoples and Country.

3.2 Right to self-determination

(a) The UNDRIP recognises that self-determination encompasses the collective right of Indigenous peoples to decide their political status and freely pursue their economic, social and cultural development.

(b) The UNDRIP recognises that Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs. The right derives from Indigenous peoples' connection to particular Country.

3.3 Statewide Treaty

(a) Traditional Owners lived on the land that makes up the territory of what is now known as the State of Victoria when it was established and visited and traded with other Traditional Owners across the arbitrary colonial borders that divided Country. Traditional Owners survived and continue to live and practise Aboriginal Lore and Law on this land. Their authority comes from being part of and speaking for Country. From the time of the establishment of what is now known as the State of Victoria, other Aboriginal and Torres Strait Islander persons have come to live on the territory as First Peoples.

(b) The Statewide Treaty finds authority in First Peoples on account of being First Peoples. The premise of Statewide Treaty is recognition of the unique position of First Peoples in Victoria. The first guiding principle of the Treaty Act is that First Peoples “have the right to self-determination” and the central principle for Treaty- making is self-determination and empowerment (see clauses 2.4 and 2.5 of this Framework). Consistent with those statements of principle, a Statewide Treaty will support First Peoples as a collective to exercise self- determination, including, if agreed, by structural reform to government in Victoria.

3.4 Traditional Owner

(a) Traditional Owner has the meaning given by section 3 of the Treaty Act, as applied by the relevant First Peoples having regard to self-determination.

(b) Traditional Owners lived on the land that makes up the territory of what is now known as the State of Victoria when it was established. Traditional Owners survived and continue to live and practise Aboriginal Lore and Law on this land. Their authority comes from being part of and speaking for Country.

3.5 Traditional Owner Treaty

Traditional Owner Treaties will affirm, claim and allow for the exercise of the rights of Traditional Owners. Traditional Owner Treaties will support Traditional Owners to exercise self-determination and take control of their own affairs in matters directly affecting their Country and community. The premise of Traditional Owner Treaties is recognition of the inherent rights enjoyed by Traditional Owners of Country.

4 Role of Treaty Authority

4.1 Sources of the Treaty Authority’s functions

The Treaty Authority’s functions are set out in:

(a) Section 28 of the Treaty Act, being:

(i) facilitating and overseeing Treaty negotiations;
(ii) administering the Framework;
(iii) providing for resolution of disputes in Treaty negotiations in accordance with the Framework; and
(iv) carrying out research to support Treaty negotiations and the administration of the Framework.

(b) Section 8 of the Treaty Authority Act, being any other function agreed to by the parties under the Treaty Authority Agreement before, on or after the commencement of section 8 of the Treaty Authority Act.

(i) providing for the resolution of disputes incidental to or in connection with Treaty negotiations in accordance with the Framework; and
(ii) such additional functions hereafter agreed by the Parties and recorded in the Framework consistent with the Treaty Act.

(b) This Framework, in accordance with section 8 of the Treaty Authority Act and clause 12.2 of the Treaty Authority Agreement.

4.2 Performance of functions

(a) In performing its functions, the Treaty Authority must act in accordance with this Framework and the Treaty Authority Agreement.

(b) In performing its functions, the Treaty Authority may:

(i) encourage the Negotiating Parties to continue talking by way of effective communication and shared understandings;
(ii) develop and follow processes that are culturally strong and respectful;
(iii) identify the need for additional support for First Peoples' Negotiating Parties;
(iv) monitor and advise on the progress of Treaty negotiations; and
(v) listen and learn about First Peoples' issues, Aboriginal Lore and Law and Cultural Authority, and build relationships with First Peoples.

(c) Nothing in this clause limits the functions of the Treaty Authority under this Framework, the Treaty Act, the Treaty Authority Act or the Treaty Authority Agreement.

4.3 Timeframes

In administering this Framework, the Treaty Authority may vary a prescribed timeframe, taking into account:

(a) the views of parties who may be affected by varying, or by not varying, the timeframe; and

(b) whether variation would prejudice entry into Treaty negotiations, the conduct of Treaty negotiations or the resolution of a dispute.

4.4 Treaty Authority and Aboriginal Lore, Law and Cultural Authority

(a) In using its best endeavours to observe and uphold Aboriginal Lore, Law and Cultural Authority, the Treaty Authority will apply the following principles:

(i) Aboriginal Lore, Law and Cultural Authority are defined by First Peoples and will vary between communities;
(ii) Aboriginal Lore, Law and Cultural Authority have not been, and should not be, defined through the lens of the Western legal system; and
(iii) recognising that the process will be dynamic and flexible, all parties must have been given sufficient information to understand how the Treaty Authority will observe and uphold Aboriginal Lore, Law and Cultural Authority in the Treaty Process, before the Treaty Authority takes an action to do so.

(b) In using its best endeavours to observe and uphold Aboriginal Lore, Law and Cultural Authority, the Treaty Authority will:

(i) engage with First Peoples' communities to determine the particular Aboriginal Lore, Law and Cultural Authority or aspects thereof they seek to have the Treaty Authority observe and uphold;
(ii) if the Aboriginal Lore, Law and Cultural Authority of one First Peoples' party conflicts with the Aboriginal Lore, Law and Cultural Authority of another First Peoples' party, facilitate agreement between the parties to a set of cultural protocols, obligations and rules for both parties to uphold and observe based on shared cultural values. As a matter of last resort, dispute resolution in accordance with Part I is available;
(iii) consider the legal and cultural contexts of the State and other parties who are not First Peoples;
(iv) oversee a process of cultural dialogue and synthesis between the relevant parties, to support a culturally strong Treaty Process; and
(v) inform relevant parties of the aspects of Aboriginal Lore, Law and Cultural Authority to be applied in relation to a particular Treaty negotiation or dispute, before the Treaty Authority takes an action to do so.

(c) For avoidance of doubt, nothing in this clause should be understood to enable the Treaty Authority to require the State to contravene the laws of Victoria or the Commonwealth.

4.5 Treaty Authority to oversee Negotiations Database

(a) The Negotiations Database is an administrative tool maintained by the Treaty Authority that contains information about the Treaty Process, including who is negotiating a Treaty and the areas over which Treaties are being negotiated.

(b) The Aboriginal Representative Body and the State intend for the Negotiations Database to be a critical central repository so that information about Treaty negotiations is publicly available and accessible in the one place. This will support parties to the Treaty Process to act in accordance with the guiding principles of transparency and accountability.

(c) Once the Treaty Authority has established the Negotiations Database, it will declare in writing that it is established.

(d) The Treaty Authority will determine the manner in which it administers the Negotiations Database, including:

(i) the form in which Negotiating Parties must provide the details it requires to maintain the Negotiations Database; and
(ii) the manner in which information on the Negotiations Database will be made publicly available.

(e) The Treaty Authority may request that Negotiating Parties provide any other information it considers appropriate for inclusion on the Negotiations Database.

(f) The Treaty Authority will make information on the Negotiations Database publicly available, unless:

(i) in the case of a formalised Treaty or Interim Agreement, the Treaty or Interim Agreement requires that the relevant information not be publicly available; or
(ii) the Treaty Authority considers that information should not be publicly available having regard to:

(A) Aboriginal Lore, Law and Cultural Authority, including protocols about sharing cultural knowledge;

(B) Indigenous Data Sovereignty and Indigenous Data Governance; or

(g) The Treaty Authority may consult with relevant First Peoples when having regard to the matters in clause 4.5(f)(ii)(A) and (B).

5 Commencement

(a) Part A and Part J of this Framework will commence operation on the date that the Framework is signed.

(b) The remainder of this Framework will commence operation on the date that the Negotiations Database is declared to be established by the Treaty Authority.

6 Compliance with Framework

Section 34 of the Treaty Act provides that Treaty negotiations must be conducted in accordance with this Framework.

Updated 28 October 2022