As required under the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Treaty Act), the First Peoples’ Assembly of Victoria (Assembly) and the State are working in partnership in Phase 2 to establish 4 elements, which are together referred to throughout this document as the treaty elements:
- Treaty negotiation framework, setting out the rules and process for future treaty negotiations
- A Treaty Authority, as an independent third party to oversee negotiations
- A self-determination fund, to provide Traditional Owners and Aboriginal Victorians with an independent financial resource that empowers Traditional Owners and Aboriginal Victorians to build capacity, wealth and prosperity
- A dispute resolution process that applies to negotiations of the above three elements
Sequencing treaty element negotiations
The parties agreed to first establish the dispute resolution process and develop protocols to guide negotiation conduct (Protocols) before advancing negotiations on the Treaty Authority, treaty negotiation framework and self-determination fund.
Establishing a dispute resolution process
As required under the Treaty Act, the State and the Assembly worked in partnership to develop a bespoke, culturally appropriate process for resolving disputes arising during negotiation of the remaining treaty elements. In January 2021, the parties agreed to the dispute resolution process and it came into effect on 12 April 2021.
The dispute resolution process provides a fit for purpose process that takes into account the power imbalance between the State and Assembly when resolving disputes during Phase 2 of the treaty process. It provides for procedural and substantive disputes to be resolved through mediation by an appropriately qualified third-party.
Procedural disputes can also be subject to a further process of conciliation, where a third-party may issue an opinion on certain matters or make recommendations to resolve the dispute, with parties agreeing to implement such recommendations.
Agreeing negotiation conduct protocols
The Treaty Act sets out guiding principles with which the Victorian Government and the Assembly, as parties to the treaty process, must act in accordance.
The principles are:
- self-determination and empowerment
- fairness and equality
- partnership and good faith
- mutual benefit and sustainability
- transparency and accountability.
The Assembly and the State agreed to develop protocols to give practical application to the Treaty Act’s guiding principles and lay the foundation for a renewed and mature relationship with Traditional Owners and Aboriginal Victorians, represented in the treaty process by the Assembly.
Following significant joint development work, the Minister for Aboriginal Affairs approved the Protocols on behalf of the State on 10 March 2021. The Protocols came into effect with the Assembly’s approval of the Protocols on 1 April 2021.
The Protocols consist of:
- a State Treaty Partner Protocol to guide the conduct of the State and its entities throughout Phase 2 negotiations, taking into consideration the power imbalance between the parties
- a Reciprocal Protocol for Negotiations to guide the procedural conduct of both parties during negotiations and to clarify expectations during Phase 2.
The State and the Assembly also agreed that the dispute resolution process applies to the parties’ compliance with the Protocols, although the Protocols are not a requirement under the Treaty Act. This agreement demonstrates the State’s commitment to the Treaty Act’s guiding principles of good faith and accountability, and commitment to be a model treaty partner.
Advancing the negotiation of remaining treaty elements
Upon finalising the dispute resolution process and the Protocol negotiations, the State and the Assembly moved to discussing the Treaty Authority and treaty negotiation framework. Negotiations on these two elements have proceeded in parallel, so that the Treaty Authority’s design is appropriate for the treaty negotiation framework it will administer. The self-determination fund will be the last element agreed. Phase 2 will conclude when all of the treaty elements are agreed between the State and the Assembly. This is anticipated to occur in late 2022.
Treaty negotiation framework
The treaty negotiation framework will set out the rules and process for negotiating, agreeing and enforcing treaties. As set out in the Treaty Act, the treaty negotiation framework must provide for the negotiation of a treaty or treaties that recognise historic wrongs, promote the fundamental human rights of Aboriginal peoples (including the right to self-determination), support reconciliation and have positive impacts for Victoria, among other matters.
In November 2020, the State and the Assembly commenced exploring a treaty framework which could allow for the negotiation of a statewide treaty and multiple local treaties. Other key issues in discussion include ensuring the treaty framework provides for the negotiation of a treaty or treaties in accordance with the Treaty Act. The Victorian government is committed to ensuring that Traditional Owners and Aboriginal Victorians have a voice throughout the treaty process and support the delivery of a framework that empowers First Peoples to make decisions on the matters that affect their lives through future treaty negotiations.
Treaty Authority
Under the Treaty Act, the Treaty Authority will be responsible for facilitating and overseeing treaty negotiations, administering the treaty negotiations framework, providing for resolution of disputes in treaty negotiations and any additional functions that may be agreed upon between the State and the Assembly. The Treaty Authority will be an independent guardian of the treaty process.
To support agreement on the treaty negotiation framework and Treaty Authority, the State team has conducted a breadth of research and analysis including international comparisons of treaty-based jurisdictions. This work will support negotiations on the treaty negotiation framework and the Treaty Authority, which will continue through 2021 and 2022.
Self-determination fund
The self-determination fund will support Traditional Owners and Aboriginal Victorians to have equal standing with the State in treaty negotiations. The self-determination fund will also provide a financial resource, independent from the State, to empower Traditional Owners and Aboriginal Victorians to build capacity, wealth and prosperity. In accordance with the Treaty Act, the State and the Assembly may also agree on additional purposes for the self-determination fund.
The Assembly and the State have had preliminary discussions on how the self-determination fund might be established in accordance with the Treaty Act, and negotiations will continue through 2021 and 2022.
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