Treaty negotiations complete, a historic agreement is within reach

ATSIC, a national Aboriginal representative body established by the Hawke government in 1990, was defunded in 2005 amid allegations of mismanagement.

The assembly’s accountability powers would enable it to monitor, evaluate, conduct performance audits and report on any government-funded programs and polices affecting First Peoples. This goes well beyond the advisory role conceived for the Voice to federal parliament rejected at the 2023 referendum.

Under the terms agreed to by the negotiating teams for First Peoples and the Department of Premier and Cabinet, the assembly would not have coercive powers to compel testimony or the production of documents from government officials, or a veto over legislation.

Its public hearings, to be known as “engagement hearings”, are designed as a forum where First Nations representatives can interrogate government policy and share expertise and advice about how programs could be better designed.

“It is not just about being able to say, ‘This is no good’; it is saying ‘This is what we recommend should be happening,’” Berg said. “That is the key step.”

A senior government figure involved in the treaty process but not authorised to speak publicly said the engagement hearings were designed to cut through bureaucratic and political stonewalling.

“Our First Peoples don’t want the bullshit political answers,” they said. “They want genuine conversations with ministers and secretaries of departments.”

Berg said one of the first things the new assembly would push for was the removal of administrative hurdles for Aboriginal service providers, such as requirements to provide overlapping reports to multiple government agencies, which prevented them from doing important work.

The accountability role of the assembly is based, in part, on a model used since 2022 in South Australia, where First Nations and government representatives share governance over the state’s Closing the Gap performance in health, education, employment and other quality of life measures.

This is consistent with a recommendation by the Productivity Commission, which reviews the National Agreement on Closing the Gap on a national basis, for all states and territories to have Aboriginal and Torres Strait Islander-led mechanisms to scrutinise progress.

The assembly must be consulted on any proposed laws, before they are introduced to parliament, directed at First Peoples. The scope of this provision is likely to be the subject of fierce debate when the legislation is tabled in parliament.

The assembly’s decision-making powers are restricted to areas of unique Aboriginal interest, such as water trading between mobs, how Aboriginality is determined, sanctioning the use of traditional names for commercial purposes and returning natural landmarks to their traditional names. Final decisions will involve relevant traditional owner and language groups.

The assembly will make direct appointments to board positions already reserved for Aboriginal people at Heritage Victoria and the Aboriginal Heritage Council.

Victorian Minister for Treaty and First Peoples Natalie Hutchins thanked the First Peoples’ Assembly for its leadership during the treaty negotiations.

“If you listen to the people directly affected by policies, you get better outcomes – that’s common sense,” she said. “Treaty is about listening to the voices of Aboriginal Victorians and making sure that resources focused on Aboriginal communities are spent when and where they are needed.”

The Coalition parties initially offered tepid support for the state’s treaty process but hardened their position at the start of last year.

Opposition Leader Brad Battin said the focus on a treaty reflected Premier Jacinta Allan’s “misplaced priorities” when facing urgent problems with violent crime and childcare.

“The Liberals and Nationals don’t support a treaty or Jacinta Allan’s Voice to parliament,” he said. “We want to address disadvantage, not create new bureaucracies and divide Victorians.”

While the tabling of treaty legislation in parliament is likely to re-enliven the public debate which engulfed the Voice referendum, the state government and First Peoples’ Assembly hope finalising a treaty and establishing the new assembly before next year’s November’s state election will reduce the potency of any scare campaign.

The Victorian government formally committed to a treaty in 2018 with the introduction of legislation to advance the process, and negotiations on the in-principle agreement began last November.

The current First Peoples’ Assembly leadership, including co-chairs Berg and Ngarra Murray, was elected in 2023 on a platform of negotiating a treaty focused on establishing a permanent Aboriginal representative body. The new assembly will be elected to a four-year term.

While the narrow scope of the in-principle agreement has frustrated some Aboriginal leaders, Berg said a broader treaty would have been more complicated and taken longer to complete. His father, Jim Berg, was part of a generation of Aboriginal activists who began advocating a treaty nearly 50 years ago.

“We are looking at this as the first statewide treaty which will set up the processes to enable future conversations to continue happening,” he said. “That’s why it was critical to get the architecture right.

“We had a clear idea of what we wanted to try and achieve. We were also constantly driven by the need to make sure that our elders who’ve been wanting to see something happen for so long are here to actually see at least this first stage.”

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