Part 7

In response to ongoing calls from Aboriginal Victorians, the Victorian Government committed to pursuing treaty in May 2016. The State’s commitment to treaty is formalised in the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Treaty Act), the first piece of treaty-related legislation in Australia’s history.
Victoria is currently in Phase 2 of a three-phase process towards treaty.
The first phase of Victoria’s treaty process focused on community engagement and the design and establishment of the First Peoples’ Assembly of Victoria (Assembly), the first democratically elected representative body for Traditional Owners of country and Aboriginal Victorians in the state’s history.
The Assembly is comprised of 31 Victorian Traditional Owners, with 21 members elected by Aboriginal Victorians across five voting regions and 10 members appointed by formally recognised Traditional Owner groups.
The treaty process is now in the second phase which commenced with the establishment of the Assembly in December 2019. During this phase, the Assembly is working in partnership with the Victorian Government to establish the elements required to support future treaty negotiations:
- a Treaty Authority, as an independent third party to oversee negotiations
- the treaty negotiation framework, setting out the rules and process for future treaty negotiations
- a self-determination fund, to provide Aboriginal Victorians with an independent financial resource during the treaty process
- a dispute resolution process, to resolve disputes arising while working together to establish these treaty elements.
The third and final phase of the treaty process will commence with the agreement and establishment of the treaty elements. Phase three will involve treaty negotiations between the State and Aboriginal negotiating parties.
The Settlement Act provides for the recognition of Traditional Owner rights in relation to land, waters and natural resources. The Review has sought to examine the content of Settlement Act agreements, to ensure they continue to represent a fair and just settlement for Traditional Owners in light of substantial advances in native title law. Victoria’s treaty process will also seek to deliver Traditional Owners’ aspirations, including in relation to land, waters and natural resources, as well as their broader self-determination aspirations.
While treaty has progressed in parallel to the Review, there are significant intersections between these processes and close engagement has been maintained to ensure that the views of Traditional Owners are considered comprehensively through each of these processes. Through the Review, the EPOF has identified issues that it considers fall outside of the scope of this Review, and that may be more appropriately addressed through referral to the Minister for Aboriginal Affairs and Assembly for consideration through treaty.
These issues are:
- Recommendation 2: compensation payable to Traditional Owners for activities occurring before 31 October 1975, and the enactment of the RDA;
- Recommendation 4: a settlement agreement should not be full and final in respect of native title compensation;
- Recommendation 10: the proposal for a moratorium on Crown land sales in those areas where Traditional Owners do not have any procedural rights with respect to the sales;
- Recommendation 11: the Compensation Model and Expert Terms of Reference to assess compensation formulas;
- Recommendation 33: the Traditional Owner Settlement Act Forum be established to build upon the work of the First Principles Review; and
- Recommendation 35: consideration of LUAA avoidance, dispute resolution, review mechanisms, compliance and communication.
Following the submission of this Report to the Attorney-General it is proposed that these issues be brought to the attention of the Co-Chairs of the Assembly, and the Minister for Aboriginal Affairs, along with a copy of this Report for their consideration.
Implementation of the Review’s recommendations will require ongoing work and review to ensure alignment with the Victorian treaty process, including engagement with the First People’s Assembly of Victoria. Alignment is particularly essential in matters relating to compensation formulas, the work plan and any recommendations of the expert, and the operation of the Traditional Owner Settlement Act forum.
While EPOF asserts that Recommendation 2 and Recommendation 10 are more appropriately addressed through referral to the Minister for Aboriginal Affairs and First Peoples’ Assembly, the FPRC has expressed some concern that if this occurs, these issues may not be progressed within a reasonable timeframe, given the width of issues to be addressed in that process.
For that reason, the FPRC continues to advocate for the acceptance of the recommendations and does not agree that these matters should be further delayed by referral to another process. However, in the event that they are referred, makes the recommendation set out below:
Joint or Individual Recommendation
This is an individual recommendation.
Recommendation 36
That where any issue raised in this report is referred to the Minister for Aboriginal Affairs (Minister), the Assembly, or otherwise sought to be progressed through the Treaty process, that:
- Those matters should be raised with the Assembly and the Minister in writing, and they should both be provided a copy of this report in full; and
- Unless the Assembly confirms that they intend to actively negotiate and pursue each issue within 12 months of receiving notice in writing, the issue will be automatically referred to the proposed Settlement Act forum to be further progressed.
Unresolved issues
EPOF recognises the significance of these issues to the FPRC and the importance of resolving them. EPOF is also mindful, however, that the Settlement Act Forum will ultimately derive its authority and take its overall direction from governance structures developed through the treaty process.

Updated 11 April 2024