Part 6

The Review was conducted from its launch in February 2020 at Parliament House, until its conclusion upon the submission of this report to the Attorney-General, the Honourable Jaclyn Symes, in November 2021.

The Review was faced with an ambitious Terms of Reference, being the first comprehensive review of the Settlement Act framework since the introduction of the legislation in 2010. While the scope of work was broad, the Review faced other challenges with emergence of the Covid-19 virus in early 2020. This required the Review to adapt, abandoning the intention to engage through in person negotiations, to an on-line setting.

Despite these challenges, the Review nevertheless made progress as against the Terms of Reference, and the membership of both the FPRC and EPOF persisted in the discussion of complex and sometimes difficult content, to produce the outcomes set out in this report.

In 2018, the Federation facilitated a series of workshops with the Template Review Committee, consisting of Traditional Owners from groups across Victoria in active negotiations with the Victorian government under the Settlement Act. The purpose of these workshops was to review the standard settlement agreements offered by the State. While some of those recommendations were implemented, others required legislative or policy changes leading to the Victorian government to commit to the First Principles Review.

On recommendation from the Template Review Committee, the Federation facilitated an open and inclusive EOI process to allow individual Traditional Owners to nominate for membership of the FPRC.

This process was advertised through the Federation social media presence and community networks, resulting in wide representation from across Victoria. All Traditional Owners who expressed an interest in joining were accepted as members of the FPRC. In addition, a number of Traditional Owners expressed an interest not in joining the committee, but in being kept abreast of its work, and were provided with all committee correspondence, minutes, briefing notes and other documents as they were prepared, as well as access to an on-line repository of all FPRC material.

Following the formal establishment of the FPRC, it developed and adopted its own governance rules, including requirements as to quorum, and engagement processes. At this time the FPRC also decided to allow Traditional Owner corporations to directly appoint members, to allow for greater representation, and to ensure the Review took into account the views and experience of those entities that will ultimately negotiate and implement Settlement Act agreements. Throughout the above processes, and during the Review, the Federation acted as an advisor and facilitator to the FPRC and acted on the instructions of the FPRC.

Throughout the course of the Review the FPRC was consistently clear that its role was to make recommendations to the Attorney-General about a starting point in negotiations between the government and any individual Traditional Owner group. The FPRC does not represent, nor have any mandate from, Traditional Owner groups in Victoria, and is not authorised to make decisions or agreements on behalf of any Traditional Owner group.

However, consisting of senior Traditional Owners, along with management and board members from Traditional Owner corporations, it has been uniquely placed to review components of Settlement Act agreements, and to reflect upon the wider goals and aspirations of Traditional Owners across the state.

The Victorian government was represented in the Review by an Executive Policy Owners’ Forum, including Deputy Secretaries or other executives of the multiple departments and agencies responsible for advising the government on, and otherwise administering, the TOS Act. Executives were recruited via direct invitation from the Deputy Secretary, Aboriginal Justice, Department of Justice and Community Safety, who also acted as the EPOF Chair. The work of the executives was supported by advisors from across each of the Review’s policy areas. Advisors progressed the underlying policy work for each Review issue by drafting and providing feedback on policy and position papers, and by providing advice to executive members. Secretariat support was provided by the Land Justice Unit, Department of Justice and Community Safety.

On 14 February 2020, the Review was officially launched by the then Attorney-General, the Hon. Jill Hennessy, at the inaugural joint meeting of the EPOF and the FPRC at Parliament House. The Hon Natalie Hutchins, Parliamentary Secretary for Treaty, was also in attendance.

At the launch, the then Attorney-General noted the State’s commitment to improving the settlement framework and addressing the implications of the Timber Creek decision, noting that:

This review will make sure Victorian law is up to date, to ensure we continue to lead the country on self-determination and as a demonstration of our commitment to the Treaty.

A spokesperson for FPRC noted that:

That’s a lot of work to be done but we’re hopeful this review will deliver a fairer deal for Traditional Owner’s rights and interests.

The launch was covered on the front page of the Age newspaper (Appendix 10), which reported the establishment of Review as representing:

Victoria’s embrace of the Timber Creek decision… [putting]… the state at odds with Queensland, Western Australia and South Australia, who were "interveners" or interested parties in the case, supporting the NT and Federal governments' position.

The Review was conducted through meetings, both between the FPRC and EPOF, and in camera meetings of each committee or forum, where policy positions were formulated, considered or approved. Due to the complexity of the material, positions were frequently expressed in writing through the exchange of correspondence.

Meetings were held between February 2020 and November 2021, as captured in the table below.

Prior to March 2020, meetings generally took place in person. However, after the declaration of a State of Emergency due to the COVID-19 pandemic, all meetings occurred either via teleconference or videoconferencing.

The Federation worked with FPRC members to assist in setting up remote conferencing facilities to ensure the greatest number of FPRC members had access to the required technology and software and could therefore attend or contribute to any scheduled meetings.

Additionally, the Federation undertook consultations with Traditional Owners outside of formal FPRC meetings on an ongoing basis. These consultations have been essential in ensuring members were kept up to date.

Since March 2020, the Review has been working within the challenges of the COVID-19 global pandemic.

Many of the FPRC members hold important positions in their communities and have taken leadership roles in responding to the impacts of the pandemic on their communities. Despite this added responsibility and workload, the FPRC has continued to adapt meeting practices and procedures to progress the work of the FPR and to ensure wide representation in participation in those meetings. This approach has been relatively successful. Since the start of the pandemic, the FPR has held its meetings via videoconferencing platforms.