PART C

Consistent with the process for entry into Traditional Owner Treaty negotiations in Part B, the Parties to the Framework have agreed to a process for entry into Statewide Treaty negotiations set out in Part C that supports the right to self-determination of First Peoples across Victoria to decide how to come together politically and make collective decisions.

Statewide Treaty will be negotiated by the Aboriginal Representative Body, as the First Peoples' Representative Body, if confirmed under this Part.

The First Peoples' Representative Body will be the sole representative of First Peoples for the purpose of negotiating Statewide Treaty.

To enter into negotiations for the Treaty, the Aboriginal Representative Body must satisfy the Minimum Standards. It must also have held an election at which it was announced that the Aboriginal Representative Body intends to satisfy the Minimum Standards and become the Primary Negotiating Party in relation to a Statewide Treaty.

If the Aboriginal Representative Body does not seek to be the First Peoples' Representative Body, another entity that satisfies the Minimum Standards and is confirmed as the First Peoples' Representative Body in accordance with the Contingency Process set out in Schedule 1 will negotiate Statewide Treaty.

In this Part, all references to Treaty or Treaties are to Statewide Treaty, unless otherwise specified.

15 Primary Negotiating Parties

15.1 Primary Negotiating Parties

(a) The Primary Negotiating Parties in relation to a Statewide Treaty will be:

(i) the State, as entered onto the Negotiations Database in accordance with clause 21; and

(ii) the entity entered onto the Negotiations Database as the First Peoples' Representative Body (Body) in accordance with clause 18 and/or Schedule 1.

(b) The Body will be the sole representative of Traditional Owners and other First Peoples for the negotiation of a Statewide Treaty.

15.2 Requirements to enter into Statewide Treaty negotiations

(a) The process to enter an entity onto the Negotiations Database as the Body is as follows:

(i) The process commences on a date notified by the Treaty Authority under clause 17.
(ii) The Aboriginal Representative Body has three months to notify the Treaty Authority that it seeks to be entered onto the Negotiations Database as the Body in accordance with clause 18.1.
(iii) The Aboriginal Representative Body must demonstrate its satisfaction of the Minimum Standards at clause 16.2 and the Additional Requirement at clause 16.3.
(iv) The Treaty Authority must enter the Aboriginal Representative Body as the Body onto the Negotiations Database in accordance with clause 18.2.
(v) If the Aboriginal Representative Body is not entered as the Body onto the Negotiations Database, the Treaty Authority must commence the Contingency Process for confirming another entity as the Body in accordance with clause 18.6 and Schedule 1.

(b) Before negotiations for a Statewide Treaty can begin:

(i) the Treaty Authority must invite the State to begin Treaty negotiations with the Body, in accordance with clause 19.2;
(ii) the State must accept the invitation issued by the Treaty Authority, in accordance with clause 19.3;
(iii) the State must comply with the Minimum Standards and fulfill the Additional Preparations, in accordance with clause 20 (unless the Body consents to negotiations commencing prior to the Additional Preparations being completed); and
(iv) the Treaty Authority must assess the State’s compliance and enter the State onto the Negotiations Database, in accordance with clause 21.

16 Minimum Standards for the Body to enter into negotiations

16.1 The Body must meet the Minimum Standards

To enter into Statewide Treaty negotiations as the Body, an entity must:

(a) satisfy the Minimum Standards in clause 16.2;

(b) if it is the Aboriginal Representative Body, satisfy the Additional Requirement in clause 16.3; and

16.2 Minimum Standards for the Body

(a) In accordance with the principle of self-determination and empowerment underpinning the Minimum Standards, whether the Body satisfies the Minimum Standards is a matter for the satisfaction of the Body, subject to clause 18.

(b) The Minimum Standards for the Body are:

(i) In relation to Land and Waters, the Body must identify the land and waters that constitute what is now known as the State of Victoria and all other land and waters vested in the State, as the area over which it intends to negotiate a Statewide Treaty.
(ii) In relation to Community, the Body must identify how it:
- (A) represents the diversity of First Peoples in Victoria;
- (B) is incorporated;
- (C) has a governance structure that is comprised of a membership of Traditional Owners:
  - (1) elected by First Peoples through periodic state-wide elections; and
  - (2) appointed by Traditional Owner Groups; and
- (D) has processes in place to engage Aboriginal Community Controlled Organisations, Aboriginal Trusts and First Peoples who are not Traditional Owners.
(iii) In relation to Leadership, the Body must identify:
- (A) processes in place to choose representatives which have the appropriate authority to negotiate a Treaty on behalf of the Body (Negotiators);
- (B) the Negotiators chosen in accordance with those processes;
- (C) decision-making processes in place by which the Body makes decisions in respect of Treaty negotiations; and
- (D) its capacity to attend and offer advice and support to First Peoples' Treaty Delegations in Traditional Owner Treaty negotiations, if the relevant Delegation so requests or otherwise agrees.
(iv) In relation to Inclusivity, the Body must identify its processes in place to:
- (A) uphold Cultural Authority;
- (B) educate and consult First Peoples, including Traditional Owner Groups, Aboriginal Community Controlled Organisations, and Aboriginal Trusts regarding Treaty negotiations; and
- (C) seek the Collective Support of First Peoples to the outcomes of Treaty negotiations, including Interim Agreements.

16.3 Additional Requirement for the Aboriginal Representative Body

(a) Before seeking to be entered onto the Negotiations Database as the Body, the Aboriginal Representative Body must also have held a state-wide election and corresponding appointment process for its membership, prior to which it must have announced:

(i) its intention to be the Primary Negotiating Party in relation to a Statewide Treaty; and
(ii) how it intends to meet the Minimum Standards in clause 16.2(b)(ii) and (iv).

(b) The Aboriginal Representative Body must notify the Treaty Authority of the state-wide election period and the likely date of the publication of the election results.

17 Treaty Authority notifies commencement of process

(a) The process for identifying the entity that is to be entered onto the Negotiations Database as the Body will commence on a date nominated by the Treaty Authority.

(b) The Treaty Authority must give advance notice of that date to the Parties, any Traditional Owner Group entered onto the Negotiations Database and First Peoples (by issue of a public notice).

(c) The Treaty Authority must not nominate a date under this clause that is before the likely date of the publication of the results of the state-wide election notified by the Aboriginal Representative Body under clause 16.3(b).

18 Entry of the Aboriginal Representative Body onto the Negotiations Database

18.1 Notification of satisfaction of Minimum Standards and Additional Requirement

(a) The Aboriginal Representative Body has three months from the commencement of the process referred to in clause 17(a) to notify the Treaty Authority that it seeks to be entered onto the Negotiations Database as the Body.

(b) The notification provided by the Aboriginal Representative Body must include:

(i) its satisfaction of the Minimum Standards in accordance with clause 16.2;
(ii) how it has fulfilled the Additional Requirement in accordance with clause 16.3.

18.2 Entry onto the Negotiations Database

(a) Subject to clause 18.2(c), on receipt of a notification under clause 18.1(a), the Treaty Authority must enter the Aboriginal Representative Body onto the Negotiations Database as the Body, without independently assessing its satisfaction of the Minimum Standards.

(b) The Treaty Authority will determine the manner and form of the Negotiations Database entry for the Body, subject to clause 4.5(f).

(c) If the Treaty Authority considers that a notification by the Aboriginal Representative Body under this clause is incomplete, the Treaty Authority:

(i) must first:
- (A) request further information from the Aboriginal Representative Body or provide an opportunity for clarification or correction of the notification, within a specified period; and
- (B) provide support and advice to the Aboriginal Representative Body on the steps to be taken to complete the notification; and
(ii) may, after receipt of further information in response to a request, or after the expiry of the specified period, refuse to enter the Aboriginal Representative Body onto the Negotiations Database.

18.3 Notification of entry onto the Negotiations Database

(a) The Treaty Authority will determine how the Aboriginal Representative Body’s entry onto the Negotiations Database, as the Body, is notified publicly, in accordance with clause 4.5(f).

(b) Notwithstanding the above, the Treaty Authority must notify the State to enable the State to continue preparations towards complying with its Minimum Standards detailed at clause 20.

18.4 Comment and Dispute Period

(a) As soon as reasonably practicable after the Treaty Authority makes an entry of the Aboriginal Representative Body as the Body onto the Negotiations Database under clause 18.2, the Treaty Authority will issue public notice of a two-month period (Comment and Dispute Period) to allow First Peoples to comment on, and raise disputes about, the Aboriginal Representative Body’s satisfaction of the Minimum Standards in clause 16.2.

(b) The Comment and Dispute Period will be facilitated by the Treaty Authority and allow for:

(i) First Peoples' commentary and input about the Aboriginal Representative Body’s satisfaction of the Minimum Standards; and
(ii) the Treaty Authority to resolve any dispute raised by First Peoples about the Aboriginal Representative Body’s satisfaction of the Minimum Standards in accordance with the dispute resolution process under Part I.

(c) If requested by the Aboriginal Representative Body, the Treaty Authority can provide specific guidance on addressing commentary and input about the Body’s satisfaction of the Minimum Standards, including any support or steps that might be needed in order to ensure satisfaction of the Minimum Standards.

18.5 When entry onto the Negotiations Database can be removed or amended

(a) If the Treaty Authority has entered the Aboriginal Representative Body onto the Negotiations Database as the Body:

(i) that entry cannot be removed, except:
- (A) at the Aboriginal Representative Body’s request; or
- (B) if the Minister revokes the Aboriginal Representative Body declaration under section 14 of the Treaty Act, in accordance with clause 18.5(b); or
- (C) if, as a matter of last resort, the Treaty Authority determines the Aboriginal Representative Body should be removed from the Negotiations Database as part of resolution of a dispute raised under clause 18.4, in accordance with Part I;
(ii) otherwise, no further dispute about whether the Aboriginal Representative Body is the Body can be commenced under this Framework.

(b) If the Treaty Authority has entered the Aboriginal Representative Body onto the Negotiations Database as the Body, that entry must be removed if the Minister revokes the Aboriginal Representative Body declaration under section 14 of the Treaty Act. In that situation, the Treaty Authority must recommence the process for identifying the entity that is to be entered onto the Negotiations Database in accordance with clause 17, but not before a subsequent Aboriginal Representative Body declaration is made under section 18 of the Treaty Act.

(i) the Aboriginal Representative Body requests the amendment; or
(ii) if, as a matter of last resort, the Treaty Authority determines the entry should be amended as part of resolution of a dispute raised under clause 18.4, in accordance with Part I.

(d) Nothing in this clause prevents either Primary Negotiating Party for Statewide Treaty suspending negotiations in accordance with clause 26.6.

18.6 Contingency Process

The Treaty Authority must commence the Contingency Process under Schedule 1 for identifying the entity that is to be entered onto the Negotiations Database as the Body only if:

(a) within three months from the commencement of the process for confirming the Body, the Treaty Authority does not receive any notification from the Aboriginal Representative Body;

(b) the Treaty Authority has received a notification from the Aboriginal Representative Body that it does not seek to be the Body;

(c) the Treaty Authority has refused to enter the Aboriginal Representative Body onto the Negotiations Database after receipt of further information in response to a request, or after the expiry of the specified period under clause 18.2(c); or

(d) the Treaty Authority has removed the Aboriginal Representative Body from the Negotiations Database pursuant to clause 18.5(a) or (b).

19 Inviting the State to begin Treaty Negotiations

19.1 The Body requests State invitation

(a) To begin negotiations for a Treaty, the Body must notify the Treaty Authority that it wishes to invite the State to begin Treaty negotiations.

(b) The Treaty Authority will determine the manner and form of the notification in this clause.

19.2 Treaty Authority issues invitation to the State

(a) On receipt of the notification in clause 19.1, the Treaty Authority, in the manner determined by it, must invite the State to begin Treaty negotiations with the Body.

(b) The invitation by the Treaty Authority, except as provided for by this clause, must include the Treaty Authority’s express confirmation that it complied with all applicable requirements, including the issuing of notifications, prior to making an entry of the Body onto the Negotiations Database under clause 18.2.

(c) If the Treaty Authority, after making an assessment of the confirmation of the Body, cannot provide confirmation to the State as required by this clause, it must advise the State the reasons why confirmation cannot be given.

(d) Where the Treaty Authority acts in accordance with clause 19.2(c), it may nonetheless still invite the State to begin the Treaty negotiation.

(e) The invitation to the State is not invalidated because of any irregularity (whether procedural or substantive) or any accidental omission in the Treaty Authority’s confirmation provided under this clause.

19.3 State accepts invitation to Treaty negotiation

(a) To enter into Statewide Treaty negotiations, the State must accept the invitation issued by the Treaty Authority in clause 19.2.

(b) Except where:

(i) the State considers public authorities cannot comply with their obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic); or
(ii) the Treaty Authority is unable to confirm those matters set out in clause 19.2(b), the State must otherwise respect the confirmation of a Body by the Treaty Authority and accept the invitation.

(c) Nothing in this clause prevents the State from raising a dispute under Part I in relation to the invitation to enter into the Treaty negotiation.

(d) The Treaty Authority can cause the invitation to be publicly available and keep a public record of the length of time between the State’s receipt of that invitation and the commencement of Treaty negotiations.

(e) Following its acceptance of the invitation to begin Treaty negotiations, the State must comply with the Minimum Standards in accordance with clause 20 and be entered onto the Negotiations Database in accordance with clause 21 before negotiations begin.

20 State’s Minimum Standards for Statewide Treaty

The Parties to the Framework have not assumed the State is ready to negotiate a Treaty, and therefore the State also must meet Minimum Standards to enter into Treaty negotiations. This approach ensures that a commitment from the State is made public and provides certainty to First Peoples that the State is ready and willing to commence Treaty negotiations.

20.1 Preparing to meet Minimum Standards

(a) To avoid delays in commencing Treaty negotiations, the State should begin preparations to meet the Minimum Standards when the Treaty Authority notifies the State under clause 17(b) of the commencement of the process for confirming a single Body.

(b) Notwithstanding this early preparation, the State’s compliance with the Minimum Standards is in relation to the Treaty for which it has accepted an invitation in accordance with clause 19.3.

20.2 Minimum Standards for the State

The State must comply with the following Minimum Standards to enter into Treaty negotiations:

(a) In relation to Land and Waters, demonstrate its preparedness to negotiate a Treaty in relation to land and waters that constitute what is now known as the State of Victoria and all other land and waters vested in the State;

(b) In relation to Community, identify that it represents the people of the State of Victoria;

(i) identify the persons and/or agencies that have been authorised to undertake the Treaty negotiations (Negotiators); and

(ii) identify the decision-making processes in place to authorise decisions within the Treaty negotiations;

(d) In relation to Inclusivity, identify the processes in place to:

(i) educate and inform departments and State entities about the Treaty negotiations; and

(ii) educate the people of the State about the progress of the Treaty negotiations.

20.3 Additional Preparations for the State

(a) While not Minimum Standards, the State should also make the following Additional Preparations to assist it to enter into negotiations for a Treaty:

(i) In relation to Land and Waters, demonstrate good faith preparations to provide the Body with meaningful access to information on the relevant land and waters in the State’s possession, custody or control, consistent with the State’s other legal obligations with respect to that information;
(ii) In relation to Community, as appropriate and achievable in light of the importance of avoiding delays in beginning Treaty negotiations, identify processes in place to allow engagement of key stakeholders in relation to the land and waters over which the Treaty will be negotiated;
(iii) In relation to Leadership, demonstrate its Negotiators have the appropriate expertise and cultural competency to negotiate Treaties compatibly with this Framework’s requirements; and
(iv) In relation to Inclusivity, identify processes in place to enable potential Additional Negotiating Parties, such as the Commonwealth, other State and Territory Governments, or Local Governments, to be invited to join negotiations, where appropriate and agreed to by the other Primary Negotiating Party in accordance with clause 22.

(b) The State must take all reasonable steps to complete the Additional Preparations and avoid any undue delay to the commencement of negotiations by reason of the Additional Preparations being incomplete.

(c) The Body can agree that negotiations can commence prior to the Additional Preparations being completed. This agreement will be sought by the Treaty Authority in writing and, if received, recorded on the Negotiations Database.

(d) Even if the Body agrees to commence negotiations prior to the Additional Preparations being completed, the State must continue to complete the Additional Preparations.

21 Entry of the State onto the Negotiations Database

21.1 The State’s compliance with Minimum Standards

(a) Noting the historic power imbalance between the State and First Peoples, and the guiding principle of fairness and equality in clause 2.4, the Treaty Authority will assess the State’s compliance with the Minimum Standards and fulfillment of the Additional Preparations under clause 20.

(b) The Treaty Authority may provide general and specific guidance to the State on the Minimum Standards and Additional Preparations, including a reasonable timeframe and any support or steps needed for compliance with the Minimum Standards and fulfillment of the Additional Preparations.

21.2 State notification of compliance with Minimum Standards

(a) To be entered onto the Negotiations Database for Statewide Treaty, the State must provide a notification to the Treaty Authority of its compliance with the Minimum Standards and fulfilment of its Additional Preparations under clause 20.

(b) The Treaty Authority will determine the manner and form of this notification, subject to clause 21.2(c).

(i) how it satisfies the Minimum Standards in accordance with clause 20.2; and

(ii) how it has fulfilled the Additional Preparations in clause 20.3, unless the Body has consented to negotiations commencing prior to the Additional Preparations being completed, in which case the notification must address the extent of the State’s progress in fulfilling the Additional Preparations; and

(iii) the contact details for its Negotiators.

21.3 Treaty Authority assesses the State’s compliance with Minimum Standards

(a) Based upon the notification at clause 21.2, the Treaty Authority will assess the State’s compliance with the Minimum Standards, and fulfillment of the State’s Additional Preparations detailed at clause 20.3.

(b) If the Treaty Authority finds that the State has not complied with the Minimum Standards and/or sufficiently fulfilled or progressed towards fulfillment of the Additional Preparations detailed at clause 20.3:

(i) the Treaty Authority will in the first instance engage with the State and the Body with the aim of supporting the State’s compliance with Minimum Standards and fulfilment of the Additional Preparations;

(ii) the State should promptly endeavour to comply with the Minimum Standards and progress its Additional Preparations;

(iii) the Body may agree to proceed to negotiations in accordance with clause 20.3(c); and

(iv) a dispute as to the State’s compliance with Minimum Standards and/or fulfilment of the Additional Preparations may begin under Part I.

21.4 Treaty Authority enters the State onto Negotiations Database

(a) When the Treaty Authority is satisfied that the State has complied with the Minimum Standards and sufficiently progressed its fulfillment of the Additional Preparations to commence negotiations, or the Body has agreed that negotiations can commence without the Additional Preparations being completed in accordance with clause 20.3(c), the Treaty Authority must enter the State onto the Negotiations Database for Treaty negotiations.

(b) The Treaty Authority will determine how the State’s entry onto the Negotiations Database is notified publicly in accordance with clause 4.5(f).

(c) Once the State is entered onto the Negotiations Database for a Statewide Treaty, negotiations for a Statewide Treaty have begun.

(d) If the State has not completed all of the Additional Preparations at the time of its entry onto the Negotiations Database and the commencement of Treaty negotiations, the Treaty Authority must update the Negotiations Database once the State has completed the Additional Preparations.

Updated 28 October 2022