PART E

The State acknowledges that First Peoples have experienced intergenerational trauma and a history of engagement with the State and its entities that falls short of the conduct now required under the guiding principles of the Treaty Act.

In recognising this history and the ongoing power imbalance between First Peoples and the State, Treaty negotiations will be conducted according to Negotiation Standards that have a cultural overlay and are respectful of First Peoples’ diversity, governance and practices of belonging.

Additional Negotiating Standards will apply to the State’s conduct in Treaty negotiations to address the power imbalance.

The Parties have not identified any matters that cannot be agreed in Treaty negotiations. Negotiations may cover any subject matter relevant to First Peoples.

24 Negotiation Standards

24.1 Negotiation Standards for all parties

(a) In addition to the standards with respect to the State set out in clause 24.2, the Parties, and all Negotiating Parties, commit to the following Negotiation Standards which will apply to all negotiations under this Framework:

(i) the negotiation process will foster fairness, trust and good faith, an open exchange of ideas, the frank discussion of interests that underlie positions, and the collective analysis of problems;
(ii) the negotiation process will be inclusive, including ensuring a Delegation or the Body adhere to both the express terms and the spirit of the Inclusivity requirements set out in the Minimum Standards and agreed as part of the Delegation formation or reconstitution stage;
(iii) the negotiation process will occur in a safe, supportive and culturally appropriate forum for all First Peoples involved in the negotiation process to exercise their rights to self-determination with dignity and to allow for cultural healing;
(iv) the negotiation process will recognise and include mechanisms to address the imbalance of power between the State and the First Peoples’ Negotiating Parties;
(v) the negotiation process will recognise Aboriginal Lore, Law and Cultural Authority by acknowledging that Aboriginal Lore and Law is a substantive body of authority that informs First Peoples’ agreement-making, decision-making and governance and by taking into account:
- (A) Cultural Authority and Eldership; and
- (B) practices of First Peoples’ culture, for example language and ceremony;
(vi) the negotiation process will be respectful of:
- (A) different kinds of belonging of First Peoples;
- (B) traditional and contemporary governing structures led by communities;
- (C) First Peoples’ self-determining consultation processes, to build the mandate for a Treaty among First Peoples’ communities;
- (D) First Peoples in all their diversity, including age, sex, gender, sexuality, gender identity and ability;
- (E) First Peoples’ needs associated with intergenerational trauma, cultural safety, cultural healing, health and wellbeing; and
- (F) the diverse backgrounds, skills and experiences of all Victorians.

(b) The Negotiation Standards apply to all negotiation processes. Any Treaty negotiation process must comply with the Negotiation Standards.

24.2 Additional Negotiation Standards applicable to the State

The State will meet the following Additional Negotiation Standards to address the power imbalance between the Primary Negotiating Parties:

(a) providing non-material support for First Peoples’ Negotiating Parties to participate in negotiations with equal standing, such as by acknowledging and respecting Indigenous governance structures;

(b) being open and honest about its interests and limitations in negotiations, for example its internal approvals processes and matters outside its control;

(c) not exercising any discretionary powers for the purpose of unduly influencing matters under negotiation, where that would be a purpose extraneous to the purpose for which that discretionary power was conferred;

(d) requiring the State’s Negotiators to complete cultural competency training and apply cultural awareness throughout negotiations;

(e) directing the State’s Negotiators to participate in negotiations with an open mind, thinking beyond existing policies and practices;

(f) educating and informing departments and State entities about the Treaty Process; and

(g) addressing issues in a timely manner to maintain progress to advance Treaty negotiations and to preserve a positive relationship with First Peoples’ Negotiating Parties.

25 Subject matters for negotiation

25.1 No excluded matters

There are no matters that cannot or must not be agreed in the course of Treaty negotiations.

25.2 Subject matters for negotiation – general

(a) The Primary Negotiating Parties will agree the subject matters for negotiation at the start of Treaty negotiations in accordance with this clause.

(b) Additional subject matters may be negotiated if agreed during negotiations.

(c) The State will not unreasonably refuse to discuss a subject matter put forward by a First Peoples’ Negotiating Party.

(d) A First Peoples’ Treaty Delegation may not propose matters for negotiation where, if agreement were reached on the matter, the agreement would adversely affect:

(i) existing rights held by a Traditional Owner Group with Existing Status unless the relevant Traditional Owner Group with Existing Status forms part of the Delegation; and
(ii) any native title rights and interests within the meaning of the Native Title Act 1993 (Cth) held by First Peoples, or engage any rights held by First Peoples under Subdivision C of Division 3 of Part 2 of the Native Title Act 1993 (Cth), unless a Traditional Owner Group representing the relevant First Peoples:
- (A) forms part of the Delegation; and
- (B) demonstrates their collective agreement to the matter being discussed in the Treaty negotiations pursuant to clause 10.3(d)(ii).

(e) Statewide and Traditional Owner Treaty negotiations:

(i) will be informed by any relevant findings and recommendations of the Yoorrook Justice Commission in respect of matters affecting First Peoples across the State of Victoria;
(ii) will consider whether Treaties should include requirements for review of formalised Treaties; and
(iii) may cover any subject matter a First Peoples’ Negotiating Party and the State agree to discuss, including:
- (A) civil law issues;
- (B) criminal justice system issues;
- (C) cultural heritage;
- (D) economic and community development;
- (E) education;
- (F) employment;
- (G) environmental management;
- (H) funding and revenue raising;
- (I) health and wellbeing;
- (J) housing;
- (K) Indigenous Data Sovereignty;
- (L) land and water justice;
- (M) language;
- (N) political participation;
- (O) truth telling and healing; and
- (P) welfare, including child and family services.

25.3 Subject matters for negotiation – Statewide Treaty

In addition to the matters set out in clause 25.2 and any other subject matters agreed between the Primary Negotiating Parties, Statewide Treaty negotiations must include discussion of:

(a) whether, and if so how, a Statewide Treaty is recognised in and given effect in the Victorian Constitution or other legislation;

(b) whether, and if so how, there should be a First Peoples’ representative decision-making body created, including:

(i) the composition of any such body;
(ii) the effect of its decisions; and
(iii) the interrelationship of its decisions with pre-existing and future Victorian law; and

(c) whether, and if so how, a First Peoples’ authoritative Voice to Parliament or other forms of institutional oversight by First Peoples for the benefit of First Peoples should be created; and

(d) how to recognise Traditional Owner Treaties and decision-making bodies under those Treaties.

25.4 Subject matters for negotiation – Traditional Owner Treaties

In addition to the matters set out in clause 25.2 and any other subject matters agreed between the

Primary Negotiating Parties, Traditional Owner Treaty negotiations must include discussion of the following subject matters:

(a) whether, and if so how, Traditional Owner Treaties will be recognised in and given effect in the Victorian Constitution or other legislation;

(b) traditional relationships with relevant land and waters;

(d) culture and language;

(e) economic sustainability and empowerment; and

(f) how to recognise a Statewide Treaty and decision-making bodies under that Treaty.

26 Process for engaging in negotiations

26.1 Agreeing the Negotiation Protocols

(a) To assist in the conduct of negotiations, the Primary Negotiating Parties must develop and agree Negotiation Protocols.

(b) The Treaty Authority will work with Primary Negotiating Parties to ensure that the Negotiation Protocols meet the standards set out in clause 24.

(i) where negotiations take place;
(ii) who is responsible for the conduct and coordination of negotiations;
(iii) how negotiations are to be conducted;
(iv) roles and responsibilities of participants in Treaty negotiations;
(v) process for agreeing Additional Negotiating Parties;
(vi) an agenda of subject matters to be negotiated; and
(vii) timelines.

(d) Negotiations will be conducted in accordance with the Negotiation Protocols, or otherwise as agreed.

(e) If the Primary Negotiating Parties agree, negotiations may commence if only some of the aspects of the Negotiation Protocols set out above have been agreed, with the rest to be agreed at a later stage of negotiations.

26.2 Modifying the Negotiation Protocols

The Negotiation Protocols agreed under clause 26.1 may be modified by agreement of the Primary Negotiating Parties concerned including if:

(a) negotiations for a Traditional Owner Treaty have commenced and a Delegation is formed or reconstituted under clause 10; or

(b) an Additional Negotiating Party joins the negotiations under clause 22.

26.3 Record of the Negotiation Protocols

(a) A record of the Negotiation Protocols agreed by the Primary Negotiating Parties under clause 26.1 or modified by the Negotiating Parties under clause 26.2 must be provided to the Treaty Authority.

(b) The Treaty Authority may determine the form in which the Negotiation Protocols are to be recorded, how they will be stored and who may access them.

26.4 Role of the First Peoples’ Representative Body

If the relevant Delegation requests or otherwise agrees, representatives of the First Peoples’ Representative Body may:

(a) attend Traditional Owner Treaty negotiations; and

(b) always recognising the authority of Traditional Owner Groups (through the Delegation) in relation to their Country, offer advice and support to the First Peoples’ Treaty Delegation in those negotiations; but the First Peoples’ Representative Body is not a Negotiating Party in those negotiations.

26.5 Interim Offers

(a) Interim Offers may be made by Primary Negotiating Parties in relation to any matter.

(b) An Additional Negotiating Party may make an Interim Offer on a matter if the scope of that party’s participation in negotiations includes seeking and agreeing Interim Offers on that matter.

(c) In line with self-determination and empowerment, the State will give proper consideration to any Interim Offers made by a First Peoples’ Negotiating Party.

(d) Any negotiations between Negotiating Parties regarding an Interim Offer must be conducted in accordance with the Negotiation Standards and agreed Negotiation Protocols.

(e) The process for formalising agreements in Part F applies to the acceptance of Interim Offers.

26.6 Suspension or termination of negotiations

(a) Negotiations may only be suspended or terminated:

(i) as a matter of last resort for reasons compatible with the guiding principles in clause 2.4 and the Negotiation Standards in clause 24;
(ii) where requested in writing by a Primary Negotiating Party;
(iii) if supported by the Treaty Authority; and
(iv) by written notice from the Treaty Authority to all Negotiating Parties.

(b) The Treaty Authority may issue guidance on this matter.

(c) For the avoidance of doubt, suspension or termination is not to be used to circumvent or frustrate the facilitation and dispute resolution processes set out in the Framework.

26.7 Disputes arising in the course of negotiations

Any disputes arising in the course of Treaty negotiations that cannot be addressed through agreement between the Negotiating Parties, with or without the facilitation and assistance of the Treaty Authority, can be addressed through the dispute resolution process under Part I.

Updated 28 October 2022