Treaty Now

Transcript

Hi everyone. I'd like to welcome you to tonight's Brennan Justice Talk, number six for 2024, on 'Treaty Now!'. For those of you who don't know me, my name is Marcelle Burns. I'm a Gomeroi-Kamilaroi woman and the Associate Dean of Indigenous Leadership and Engagement in the Faculty of Law at UTS.

I'd like to start off today by acknowledging Country and the Traditional Custodians of the land on which we meet, the unceded lands of the Gadigal peoples of the Eora Nation, and pay respects to their Elders past, present and emerging. I know we have a lot of people online, so I'd also like to acknowledge traditional owners of the country from where you are Zooming in today. I also like to acknowledge, as I often say, that these have always been places of law, knowledge and learning, so we continue that tradition today. Welcome everyone to UTS Faculty of Law.

I'd just like to introduce our speakers for the panel tonight. Mr Shane Hamilton, who's a Wakka Wakka and Bundjalung man from Queensland. He's Deputy Secretary of Aboriginal Affairs at the Premier's Department in the NSW Government. He has a long history of working in government and non-government sectors, including with PwC's Indigenous Consulting, Inside Policy, and the Aboriginal Housing Office. Shane is also experienced in the development of business partnerships between the corporate sector and not-for-profit and government entities, and was instrumental in establishing Position Promo and First Nations Blockchain, both Indigenous-majority owned businesses. Thank you for joining us today.

On screen we have Dr Tony McAvoy, Senior Counsel. Tony is a Wirdi man from Central Queensland. He's a barrister and the first Indigenous person appointed as a Senior Counsel, and holds an Honorary Doctorate from UTS. Dr McAvoy’s practice includes native title, environmental law, administrative law, human rights, discrimination, coronial inquests and criminal law—a quite cross-section of a practice there. He was Acting Northern Territory Treaty Commissioner from 2021 to 2022, and also Senior Counsel assisting the Royal Commission into the Protection and Detention of Children in the Northern Territory. Dr McAvoy has served as an Acting Commissioner in the NSW Land and Environment Court and has had numerous board appointments and worked in government prior to going to the bar.

Our next panellist is Associate Professor Harry Hobbs, currently with UTS Faculty of Law but just defected to the University of New South Wales, unfortunately for us. Associate Professor Hobbs is an experienced constitutional and human rights lawyer working at the forefront of academic research and legal and political debate about Indigenous state treaty-making. Harry is committed to understanding how Indigenous sovereignty can be better recognised in national and international legal systems and has particular expertise in the treaty debate in Australia. He co-authored the book 'Treaty' with Professor George Williams, second edition in 2022, which is one of the leading books on treaty-making in Australia, and is also co-editor of 'Treaty Making 250 Years Later' with Federation Press with Alison Whittaker and Lyndon Coombes.

Our final panellist today is Professor Lyndon Coombes, who is an Industry Professor and the Director of Research at Jumbunna Institute for Indigenous Education and Research at UTS. Professor Coombes is a descendant of the Yuwaalaraay people of north-western New South Wales and has worked in Aboriginal affairs in a range of positions, including Director at PwC Indigenous Consulting, Chief Executive Officer of the National Congress of Australia's First Peoples and CEO of Tranby Aboriginal College in Glebe. He is also a co-editor of the book 'Treaty Making 250 Years Later'. Thank you very much to our panellists for joining us today.

I have to confess, it has been pointed out to me there's a lack of gender balance on the panel today [laughs]. So I'm here to represent the black matriarchy, so I hope I do the sisters proud. Anyway, it's our experts in the field.

Just to introduce our talk today, we have some housekeeping matters. For those unfamiliar with the building, the bathrooms are opposite the lifts where you came in. For those joining us online, we ask you to stay muted and turn off your cameras to assist with the AV, and this session is being recorded.

Today's topic is treaties. It is almost trite to say that Australia is the only British colony where treaties were not negotiated with First Nations. Historically, treaties were negotiated between the British and Indigenous peoples in Canada, the United States, Aotearoa New Zealand, and other colonies across the globe.

There are many different theories on why this is the case. The observation of Captain James Cook and Joseph Banks was that the continent was barely populated and confined to the coast, and therefore was ripe for colonisation. There was also the view that First Nations lacked the intellect and capacity to enter into legally binding agreements, or the myth that Australia was 'terra nullius', a land belonging to no one, or in its most extreme form, a land where the people were without an established system of law.

That myth of terra nullius was rejected by the High Court in Mabo v Queensland (No 2), which described the doctrine of terra nullius as a legal fiction. Instead, finding that First Nations peoples have complex systems of laws which allocate rights and interests in land. The findings in Mabo, however, have been limited to property rights, or what we now call native title.

Today, we live with the consequences of not having negotiated treaties, as articulated in the Uluru Statement from the Heart: this is the torment of our powerlessness as First Peoples in Australia. The 2017 Uluru Statement from the Heart, a statement made by 250 First Nations peoples, called for 'Voice, Truth and Treaty'. Voice being a constitutionally enshrined First Peoples Voice to Parliament, and truth and treaty being realised through a Makarrata Commission to oversee treaty negotiations and truth-telling processes between Australian governments and First Peoples.

This week marks one year on from the unsuccessful Voice referendum, which for many was a lost opportunity to advance the status of Aboriginal and Torres Strait Islander peoples in Australia. However, not all has been lost. Most state and territory governments have commenced treaty negotiations or consultations around the country, and most recently this is starting in New South Wales, where the Labor government was elected on a platform to commence treaty consultations.

Tonight, our panel is here to discuss the topic of treaties and what that means in the Australian context, and more specifically, New South Wales. So let's get started.

I'd like to start off with a general question for the audience. Harry, you can answer this, but if anyone wants to add: what is a treaty? How would you describe it?

Harry Hobbs: Yeah, it's a really important question. The first thing is, if you're going to negotiate a treaty, what is a treaty? What could it contain? What might it look like? In Australia, obviously, without a history—as you said, Marcelle—of treaty-making means we don't have a language to describe these relationships, we don't have the institutions and processes in existence to undertake negotiations and then to work out what happens if a dispute arises over what the treaty says. So we're starting very far back in the system.

At its simplest, a treaty between Indigenous nations and the NSW government, or more broadly in Australia, is just a promise by two or more political communities to resolve disagreements and disputes through negotiation, discussion, debate. It's a promise to act in a certain way that obviously has legal obligations because it's going to be enacted or set out in law, but it's also about the relationship that is ongoing between the two or more political communities who would negotiate that agreement.

That's at its simplest. If you think more broadly about what it might look like at international law, a modern treaty—compared to a historic treaty negotiated during colonial times—a modern treaty will recognise self-determination and recognise the inherent right of Aboriginal nations in New South Wales to some degree of sovereignty and self-government. That will be up for negotiation and up for compromise, but at its core it will need to recognise that Aboriginal nations didn't cede sovereignty, they retain their sovereignty, and as an exercise of that, they're able to either establish or, through the treaty, empower some form of self-determination. Again, that's hard because we've never done that in Australia.

Marcelle Burns: Thank you. So, would you say treaties between nation states and Indigenous peoples are a particular type of treaty, not treaties in the conventional sense of the word?

Harry Hobbs: Certainly, in international law, a treaty has a particular meaning. Under the Vienna Convention on the Law of Treaties, it's a treaty between two independent states. So in Australia, and in Canada and Aotearoa New Zealand and the United States as well, the state does not accept that Indigenous nations have an external sovereignty, and so Australia will not be negotiating a treaty under the Vienna Convention. That's not what will be happening in New South Wales, I imagine, even though many Aboriginal and Torres Strait Islander peoples quite rightly say that they want something more significant, and I know this is something that Lidia Thorpe in Parliament has been calling for, and certainly many others have made similar calls. But that's not on the table in New South Wales. For one, New South Wales can't execute an international treaty.

So it is different from an international treaty between two independent states, but I would argue it is still a constitutional document for Australia. If it is an agreement by two or more political communities to act in a certain way and to relate to each other in a certain way that is legally binding, that is still a constitutional document in that it governs the exercise of political authority in the state.

Marcelle Burns: Great, thank you. So just a question for everyone: what is the content of treaties? What are some of the issues that can be negotiated through treaties?

Tony McAvoy: Thank you all. I acknowledge that I'm in Gimuy (Cairns) on the lands of the Yidinji in Far North Queensland. Thank you, Professor Coombes. I noticed that my photo on the material for this is a little bit old, but then I also noticed that Professor Coombes is probably older than mine. I'm allowed to poke a little bit of fun at Professor Coombes because we're old comrades.

Well, some of the things that a treaty ought to contain in the Australian context, from my perspective—and I think it's generally viewed—that if we are to deal with historic grievances and the purpose of the treaty is to provide some form of settlement, then it needs to deal with some form of statement of regret or sorrow or apology. It needs to contain reparations for past conduct. Usually, there needs to be some land and water settlements, and there needs to be some arrangements for the recognition of ownership or benefit-sharing with respect to natural resources going forward.

But the most important, from my perspective—and I don't expect everybody to agree with this—but the most important is the transfer of power. By this I mean decision-making function, which is usually the prerogative of the executive or administrative government. We've seen in the modern treaties in British Columbia the transfer of decision-making power, for example, to decisions about child protection at first instance—the First Nation gets to make those decisions. Decisions about planning on First Nation land, decisions about environmental protection, cultural protection. So, the treaties would require, in my view, some transfer of power, and ideally that would take some level of self-governance, not just a loose amalgam of powers under some view of self-determination, but rather self-governance.

Marcelle Burns: Thank you. You mentioned historical grievances. Do you think treaties are an effective way to resolve those historical grievances?

Tony McAvoy: Well, we don't have any at the moment, so they're better than what we've got. There is some capacity to resolve some grievances through the native title process. We've got the reserve decision in the High Court at the moment in relation to the Yunupingu matter, which is the compensation claim in eastern Arnhem Land, where the Commonwealth has argued that the right to compensation for native title doesn't go against it in the Northern Territory after the transfer from South Australia of responsibility back to the Commonwealth in 1911. It'll be an interesting decision.

We've seen class actions where unpaid wages and damages for Stolen Generations have been successful. But we also look overseas, and we know that in India, in the West Indies, in Africa, there are many complaints against the European colonial governments for compensation for the genocide and broad dispossession and ethnocide, I suppose, in those places. The amounts of money they're talking about in those places is significant because of the extent of damage to communities, as we know here, through the colonial processes has been extraordinary.

I should say, and I probably should have said at the outset, that in the time between when I was asked to sit on this panel and the panel arising, I have been appointed to the Australian Law Reform Commission as a part-time Commissioner to review the Native Title Act, the future acts regime of the Native Title Act. The views expressed here tonight are my own and are not to be attributed to me in my role as a Commissioner of the Australian Law Reform Commission. Thank you, Marcelle.

Marcelle Burns: Thank you. Did anyone else want to add something?

Lyndon Coombes: I was just maybe going to pick up a little bit on the power and powerlessness that you mentioned at the start, but firstly acknowledge the Traditional Owners and thanks for having me here—the Gadigal people. I acknowledge their defence and care of this country and its waters. As a non-lawyer, when we talk about treaty—and yes, Tony was my first boss over 25 years ago, and I won't be getting another new profile picture, I got one five years ago and that's as good as I'm going to look, so that's staying—but learning from Tony at that time, when native title was all very new and a whole range of land rights issues, what I always resented was that no matter how smart, how strategic, how organised we were, there was this imbalance of power. It's bugged me to this day, and I know that there are technical components to treaty, but for me, it provides a framework where the power is more equally distributed and shared.

On the anniversary of the referendum, there's only so much soft influence and organisation can do to move things politically and in other ways, but I think that experience taught us to go back to a rights-based approach, and get really solid on that and start having a new, more equal discussion.

Marcelle Burns: Certainly. Balancing the playing field would be a welcome thing to see through the treaty processes.

Shane, can I ask you, the NSW Government was elected on a platform to consult on treaties in New South Wales. Can you give us an update on what's happening in that space, please?

Shane Hamilton: Good evening, everyone. Shane Hamilton. I'd also just acknowledge Country, that we're on Gadigal Country. I want to pay my respects to their Elders, both past and present. The government has committed to appoint three Treaty Commissioners and to undertake a 12-month consultation. We've done the first step in that, in appointing three Treaty Commissioners. We established an independent panel to oversee that process of the selection of Treaty Commissioners, and Dr McAvoy was one of those people who assisted us.

The work we've done internally at Aboriginal Affairs is to essentially get ready, I guess. One of the first things we've done is to prepare or do an analysis of what's happened in other jurisdictions—what have been some of the challenges, what have been some of the pitfalls in that whole treaty process, how each jurisdiction has gone about that, what are the learnings from overseas. That does two things: it assists Treaty Commissioners as they start their roles, but it also gives us a good idea of what those issues might be and then trying to put those in a New South Wales context.

We've also tried to, because there's a sense that it's going to fix everything, and of course one of the things that we've learned, of what we've seen so far in Australia, is that Victoria has been on this journey for quite some time, a number of years, and they're not at that point of negotiating a treaty yet, as I understand it. Other states like Queensland are in early stages as well, although they've been at it for a couple of years. So we're right at the very beginning of that.

We've tried to not stop any of it, but the most important bit for us post the referendum is making sure that the process we undertake is culturally safe, and that the community is ready to have that conversation. What we learnt through the referendum, what we've learnt through other jurisdictions, is that undertaking these consultations, ensuring that the voice of Aboriginal and Torres Strait Islander people comes through in those consultations, is vital. The government is asking: what do people think should be in a treaty? How do they think that treaty process should take place? What are their thoughts about agreement-making? All the points that have been raised, no doubt, we've heard this from many Aboriginal people already, so some of that's going to come through.

The government is trying to establish the process through the Treaty Commissioners to be able to have that conversation and that consultation, to get Aboriginal people's views on how they see that treaty, and then a final report into that. So it's really, I would say, early stages of any sort of process—just to engage with the community to understand their needs, but to do that in a way that tests their readiness to have that conversation, because it's not as straightforward as we would undertake other consultations. It's very different, and I would argue that we get one chance at this, and we've got to get it right.

Marcelle Burns: Thank you. I was just wondering, from what you said, are there any particular lessons that stand out from other jurisdictions that will inform the work going forward?

Shane Hamilton: Yeah, well, we're actually working with Lyndon and Jumbunna on that, and we've done a paper on that very thing—understanding what's happened in other jurisdictions and what are some of the pitfalls. We've had some conversations, in fact even this morning, just having a conversation with my counterpart in Victoria to understand some of the ways and the challenges they had in Victoria when they started the process. The way in which they communicated and the establishment of a website where people could have their say, to try and ask their questions of what they understood, what they didn't understand, people who didn't necessarily agree, who wanted more information—a place where they could go and get that information—seemed to work quite well there. They did say, "Look, we learned lessons, we didn't get it entirely right." There's something to be said, I guess, about maybe going last—you get to learn all those things.

So we're being very mindful of creating the right environment, and we know our communities are still hurting from the referendum process, so we're very conscious of that. It's about testing the readiness of community. I think the principles of free and prior informed consent are really important in that process as well.

Marcelle Burns: Certainly, people are still impacted from the referendum, and may be a bit wary of engaging with governments going forward. Just to pick up on a point you made there—I was going to ask this question to Lyndon, but either of you are welcome to answer it—you talked about treaty readiness. Do you have any thoughts about whether Indigenous peoples in community are treaty ready at present?

Shane Hamilton: To be honest, I don't think we've tested it to be able to give a really good answer on that. I think there's more work to do. I think that's the first bit of work we should contemplate doing—testing the readiness before we get into the real deep discussions about treaty and consultations. We've been very mindful that we've appointed three Treaty Commissioners as independent, so we've kept, as the bureaucracy, our arms length from that process, both from the selection but also the way in which they should go about doing that. Our advice to our minister is there's not much point in appointing three independent Treaty Commissioners if the government's going to dictate how it should happen, so we've been really at arms length from that. I think that's a really important process, and for us to have that integrity in the process to ensure that there is that independence from Treaty Commissioners, we've been really mindful of that and continue to be so.

Marcelle Burns: What about governments? Do you think governments are ready for taking up the challenge of what treaty-making really means?

Tony McAvoy: Can I just add something? In terms of treaty readiness, my observation from having worked in the Territory and Queensland, and doing a lot of work in Victoria and with the Yoorrook Justice Commission, and having lived in New South Wales for almost 30 years, is that in all of those jurisdictions, there are nations and communities who are really very advanced in their development and readiness for this type of discussion, and there are others who are really struggling, and that will be the case for a long time.

We need to remember that in Canada, in British Columbia, of the 150 First Nations in that province, I think only 60 are involved in the treaty process. But that doesn't diminish the validity of that process, and whilst it's important to understand how ready groups are, it shouldn't be a measure of either success or how quickly or slowly we should move. There will always be the need for further support for First Nations engaging in the treaty process. Sorry for interrupting.

Lyndon Coombes: Can I just add a little bit on that? It's a question that I'm really conflicted on, which I shouldn't say to my client when we've just given you a research paper on it. But, you know, originally I came from a position of 'do no harm' and 'cultural safety', and this needs to be nice and slow, and it's a very complex process and a range of things like that. But I don't know if it's because I'm getting older—and it's obviously not about me—but there are groups out there that are very ready, are past ready, they've been ready for a long time.

The more I think about this, it's more like a full court press, where there will be people ready, there will be risk moving with that, but there's risk in not moving, there's risk in losing people and connection and a whole range of things. So it's a very tricky one, but I think I've taken a range of positions on that, but at the moment I feel like we do need to push, just a little bit.

Marcelle Burns: And what about governments? Do you think governments are ready for taking up the challenge of what treaty-making really means?

Shane Hamilton: No. It's a short answer. I think that when we think about community readiness, we need to test the readiness of government as well. I think that should be part of the process, to be honest.

There's been different mechanisms, different ways we've tried to have that Aboriginal voice through different organisations and legislation. ATSIC was one of those. Lyndon's a former CEO of a former organisation, and was defunded, as was ATSIC. Local decision making, Closing the Gap—there have been those structures, I guess, but the fundamental, I think there's two fundamental differences in those: one's not a legally binding agreement, and the shift of power is not as you would expect it to be in the context of a treaty that Dr McAvoy was talking about. So yeah, I think there's a readiness piece for government as well.

Marcelle Burns: Being ready to transfer power, perhaps, and what that might look like.

Harry Hobbs: If I could say something as well, I think I agree with that. I think you're obviously better placed to talk about New South Wales. I think the word 'treaty' obviously carries a lot of expectations about what it might mean. It isn't just a local decision-making agreement again, it isn't just something like that, right? It's something significant. I think there is a lot of concern that governments aren't necessarily aware of what they're opening the conversation about, and whether they want to follow it and see where it goes.

You look at the range of processes that have happened around Australia, and in all of the consultation reports I've read, you see Aboriginal people, Torres Strait Islander people saying, 'the word treaty means something—are you sure you want to have this conversation?' And often what the first stage looks like ends up looking something like a service delivery agreement again, or something like a self-management type program, rather than something substantive, something that talks to the sharing of land and governance. That's a concern I have with the New South Wales process as well, primarily just because we're starting now, whereas Victoria would have had a similar concern ten years ago when they started their conversations.

Hopefully over the next ten years, people like Shane can do more work internally to try and help change the conversation in government and in Parliament about what a treaty might mean.

Shane Hamilton: Yeah, I mean, people want to go straight to solutions. I think Aboriginal people want to have a very different conversation as that starting point conversation. They don't want to talk service-level agreement and that's going to get us to where we need to go. I think it's deeper than that. That's the whole, which is why—I'm not going to say dampening it down, but it's dampening the expectation that bureaucracy thinks that it's going to solve the problem, instead of understanding, exactly the point you're making about treaty, and then considering it in that light around what they need, what aspects they would need to change in order for it to work.

So don't think of it as, 'you're going to do this piece of work and that's going to solve that problem, we'll have this agreement and then away we go.' I think it's deeper than that, but that's the whole idea of doing the work with this initial piece of work to understand it from Aboriginal people's perspective. But there's obviously a part for government to consider.

Marcelle Burns: Yeah, I mean, it's like the treaty is the end goal, but the process is also really important in terms of rebuilding relationships and creating trust between the parties. Thank you.

Tony, I just want to ask you: can you tell us a bit about your experience in the Northern Territory as Acting Treaty Commissioner, and what were the community's expectations there about what treaties could achieve?

Tony McAvoy: Thank you, Marcelle. Some of you will recall that in 2018, Michael Gunner as the Chief Minister for the Northern Territory entered into an agreement with the four statutory land councils in the Northern Territory: the Tiwi Land Council, the Northern Land Council, the Central Land Council and the Anindilyakwa Land Council at Groote Eylandt. That agreement was called the Barunga Agreement, thank you.

As a result of that, in 2019—they agreed to enter into a process to determine whether a treaty was suitable and appropriate for the Northern Territory and what it would look like, and agreed to appoint a Treaty Commissioner. There was also an acknowledgement in that agreement that the First Nations of the Northern Territory had not ceded their sovereignty. In 2019, Mick Dodson was appointed as the Treaty Commissioner. In 2020, there was legislation wrapped around that appointment. In June 2021, he resigned and in December 2021, I was appointed for a six-month period with a view to delivering the final report in June the following year, so June 2022.

I didn't do the consultation. The consultation was all done by the Treaty Commission staff, the Deputy Treaty Commissioner and the Treaty Commissioner. They went to over 100 communities. They engaged in consultation with youth and elders groups, community justice groups, land councils. They did a fantastic job, and overwhelmingly there were some real lessons to be learned.

One is that people wanted a First Nations-based agreement process, settlement process. It wasn't always expressed in that way, but it was on the basis of the people who were the Traditional Owners for the various places in the Northern Territory. The second thing that was noticeable from the consultation is that people were still deeply aggrieved by the removal of the community councils in the Northern Territory in 2008. Following the commencement of the intervention in 2007, all of the community councils were dissolved into super shires and all of the control for communities was lost to the regional centres, and it's largely still the case today—there are nine regional councils outside of the major cities and towns and that's it for the whole of the Territory.

The third thing that was very noticeable from the consultations was that people were very supportive of a truth-telling process and the need to get the record straight. Those three items really informed a lot of the development of the recommendations that were included in the final report of that commission.

The report recommended that there be a process of recognition of First Nations under a new Treaty and Truth-Telling Commission, and that those First Nations could then convert to a form of local government authority, and that they would carve out that authority from the existing regional councils and be able to enter into agreements directly with the Territory government and with the Commonwealth government for funding, and that there also be a truth-telling component which focused initially on evidence from the elderly.

What happened—I'm not sure whether you asked me what happened with that—but what happened was there was no real formal response to the report, which I delivered to the government on the 8th of June. There was a response to it on the 29th of December that year, from recollection, in which they said that they weren't going to set up a new commission and they set up a directorate within the government agency and it really was on a go-slow. This year, in the lead up to the Northern Territory election, the leader of the opposition, Lia Finocchiaro, said that the CLP would not proceed with the treaty or truth-telling processes in the wake of the referendum. They're not connected in that way, but that's how it would have happened.

Marcelle Burns: Yeah, so we can see the Voice referendum has had a negative impact in terms of government commitments to treaties in some places.

Tony McAvoy: Certainly. It's having all sorts of ramifications. It's a part of the Queensland opposition's election campaign that they will abolish the Path to Treaty Act in Queensland, they will repeal it. So the truth-telling process that is underway there by way of inquiry really has an axe hovering over it at the moment and are continuing on. I think it's fair to say that in other jurisdictions, the governments are nervous about the way in which certain parts of the media have been responding to the notions of self-determination and this mantra that the defeat of the referendum question was the defeat of self-determination, the principles of self-determination. Notwithstanding, they are concepts which have been agreed to by the federal government in terms of endorsement of the United Nations Declaration on the Rights of Indigenous Peoples.

Marcelle Burns: Okay, I think that's a good segu