About this committee

The Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples was appointed by a resolution of appointment in March 2018.

The Committee presented its interim report on 30 July 2018 and presented its final report on 29 November 2018.



Past Public Hearings

18 Oct 2018: Canberra, ACT
16 Oct 2018: Canberra, ACT
12 Oct 2018: Cancelled

5. Other issues raised by the Statement from the Heart

Introduction

5.1
This chapter considers other issues raised by the Statement from the Heart including Makarrata, agreement making, and truth-telling.
5.2
The Committee acknowledges that there is no single defined and agreed way forward. As consideration of The Voice took the bulk of the Committee’s time, the Committee did not have a chance to deeply consider issues raised by Makarrata and agreement making. On Makarrata it did not have much of an opportunity to test submissions in oral evidence. However, the Committee heard and tested a number of submissions on agreement making and truth-telling.
5.3
While there are also differences of opinion amongst Committee members about how to proceed, it is hoped that overall, observations made by those who have participated in the inquiry will perform an educative role in Indigenous and non-Indigenous communities.
5.4
In this chapter, the Committee notes particularly the variations in views on terminology. In general, there was widespread acceptance that truth-telling is an essential component of healing and reconciliation. The Committee acknowledges the diversity and strength of feeling among stakeholders about many issues, including: the use of ‘Makarrata’, which references a Yolngu tradition; the presence of formal or informal institutions; and the legalities and political considerations around the use of ‘treaty’ or ‘agreement making’. As elsewhere in the report, the Committee has sought to present evidence fairly, and in a way which encourages productive consideration of the range of disparate views, even amongst Committee members.

The concept of ‘Makarrata’

5.5
This section provides an overview of the proposal for a Makarrata Commission to oversee agreement making and truth-telling. The concept of ‘Makarrata’ is explored, before a consideration of the suggestions for the possible role and structure of a Makarrata Commission or similar body. The Committee did not hear much evidence on Makarrata. To the extent that it did hear evidence on the idea of Makarrata, the Yolngu word was not well known among Aboriginal and Torres Strait Islander peoples. It also means different things to different people.
5.6
The Statement from the Heart sought a ‘Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history’.1 The statement described Makarrata as the ‘culmination of our agenda: the coming together after a struggle’.2
5.7
The Referendum Council says Makarrata ‘is another word for Treaty or agreement-making’3 while the Prime Minister’s Indigenous Advisory Council calls it ‘both truth telling and agreement making’.4
5.8
Makarrata is a Yolngu word from north-eastern Arnhem Land and is used to describe an agreement-making process that encompasses a ‘coming to terms with the past as the foundation for a different future’. It enables:
… people to acknowledge the dispute between them, to talk it over and resolve it, and to move forward together.5
5.9
Uphold & Recognise provided the Committee with four policy documents6 intended to expand on a range of options regarding the ‘big ideas’ proposed in the Statement from the Heart. The document considering Makarrata suggested five aspects of the concept:
recording the history of Indigenous peoples;
preserving the culture of Indigenous peoples;
empowering Indigenous peoples to take responsibility for their communities;
creating commercial opportunities for Indigenous people; and
concluding agreements between governments and Indigenous peoples that address the four criteria above.7
5.10
However, as it noted in its interim report, the Committee found that some people were concerned regarding the use of the term ‘Makaratta’.8 The Committee requested evidence on the cultural context of Makarrata and its potential practical application in the broader Australian democratic context.9
5.11
The Prime Minister’s Indigenous Advisory Council provided evidence from a Yolngu leader explaining the cultural context of Makarrata:
Before you can have a makarrata, you have to organise yourself: make sure you have enough men/team and clan group—before the makarrata can start.
For the makarrata, the leaders of the two clans make an agreement: the makarrata ceremony is where men get speared in the leg, which symbolises that there is no more bad feeling between the two clan groups and no further intention to break the law—provided it is done in the right time, way and with the right outside clan groups as witnesses.
Look at this present time in Australia: we are in a situation—you could say that we are in a makarrata—where two systems, two cultures are trying to recognise each other. Sometimes the two systems don’t quite come to that makarrata ground to reach agreement, which makes it very hard.
Maybe it is time to come together and find pathways to resolution.
Makarrata is very significant in Yolngu law and culture—sometimes it is the only pathway to peace.10
5.12
Further detail was provided by Wathanainy Wunungmurra:
It is important to understand the process. There are a few things Yolngu have to do before Makarrata happens.
Some people are responsible as organisers: these people get their authority from the leaders of the two different clans that want to make peace. Before the peacemaking can happen, the organisers from each clan meet: the leader of each clan will send a messenger who will take a message-stick from their clan and return with the reply (these are runners, who may travel great distances). The clan leaders also send messages to consult with other related clans to become part of the peacemaking and to bear witness that the peacemaking ceremony has been conducted properly, at the right time and in the right way.
Once that has been done, the leaders will choose a location where the Makarrata will happen and in which season the Makarrata will occur.
The organisers then sit everyone in their clan down, so that everyone knows what is happening. If everyone agrees—‘yo, manymak (yes, good), we’ll make this happen so that there will be no more bad feeling between these two clan group’—then the messengers will go out again.
The warriors will start preparing. They will have to make special types of woomera, spears, armbands and headbands. They will have to gather clay (for body painting) and make special dirri-dirri (loin-cloths).
At the right time, the two groups will travel to the designated place—wearing the white clay (gapan), armbands and headbands showing they intend to participate in Makarrata. For the Makarrata, the two groups will approach each other in a close formation, as they get close the formations will open up and reveal the aggrieved parties (representing the victim as well as the person who has broken the law). The main participants will then do a totemic dance (for example—for Yirritja clans maybe crocodile; for Dhuwa clans, maybe a shark). Spears will be thrown at the dancers: these may be dodged. The Makarrata concludes with a spear being thrust through the leg of the lawbreakers.
By taking the spear in the leg and having the blood flow down into the land—in front of witnesses—you make the peace.
Yolngu people, when they have a Makarrata, it is under the law. It is a contract between the two warring groups to say: this fighting is finished; it is over: it is done. No Yolngu can break that law. If someone tries to keep fighting after the Makarrata, the law will punish him or her severely (likely by death). After the Makarrata, trading, working together and ceremony can begin again.
To have a proper Makarrata requires a lot of courage: the leaders have to be brave, the messengers have to be brave, the witnesses have to be brave, the warriors have to be brave. They all have to make a decision that puts what is good for their people and their country above their own lives.11
5.13
The Prime Minister’s Indigenous Advisory Council therefore interprets Makarrata as ‘both truth telling and agreement making’ and conceives of it as ‘a concept that underpins the way we enter into dialogue and agreement in this country’.12
5.14
However, the National Congress of Australia’s First Peoples (Congress) noted that the use of the term may not be fitting for a commission that was designed to be ‘inclusive and cover all Aboriginal and Torres Strait Islander nations’:
… we have received feedback from traditional owners, who have told us that it is not culturally appropriate to use this word for a national Commission.13

Makarrata Commission

5.15
One of the issues raised in the Statement from the Heart was the idea of a Makarrata Commission. Although as the report notes in the previous section the idea of Makarrata remains elusive, the Committee did receive submissions on the role and function of a potential Makarrata Commission. Given the tight reporting timeframe and the Committee’s focus on The Voice, the Committee did not have sufficient time to test the propositions raised below in oral evidence.
5.16
The Statement from the Heart proposed that the Makarrata Commission supervise a process of agreement making and truth-telling. This supervisory role of the Commission was endorsed by many submitters.14 For example, Congress, reiterated the supervisory role and identified two ways it could be accomplished:
First, the Commission would address intergenerational trauma, which remains an enormous barrier to Aboriginal and Torres Strait Islander Peoples. Secondly, the Commission would facilitate a greater connection to culture for Aboriginal and Torres Strait Islander Peoples.15
5.17
The Prime Minister’s Indigenous Advisory Council also emphasised both the supervisory and facilitation role of the Commission:
The Council reflects on the significance of Makarrata as the foundation of reform, and supports the call to establish a Makarrata Commission to supervise a process of agreement making between Government and First nations. The Commission will facilitate the ongoing process of truth telling and agreement making.16
5.18
An educational role was highlighted by a number of submitters. The Indigenous Peoples Organisation saw the Commission as providing a ‘process of consultation, education, healing and meaningful reconciliation.’17 Congress elaborated on the role of enhancing the knowledge of all Australians regarding the history of Aboriginal and Torres Strait Islander peoples.18
5.19
The agreement making role was enlarged on by submitters. Mr Thomas Wilkie-Black, an ANU student, submitted that this aspect of the Commission’s role could extend to ongoing responsibility for dispute resolution:
The Commission’s role under this model would be ensuring the parties negotiate in good faith and acting as a neutral arbiter assisting them in working through political disagreements.19
5.20
The National Congress of Australia’s First Peoples suggest five tasks for the Commission’s operations:
investigating the histories of various Aboriginal and Torres Strait Islander nations using primary and secondary sources;
holding Tribunals and following up with local communities after the Tribunal process;
recording findings in official reports for each nation;
setting up Keeping Places for each nation; and
engaging in widespread and culturally appropriate marketing to spread awareness about its processes among Aboriginal and Torres Strait Islander Peoples.20
5.21
With regard to the agreement making process, Mr John Burke put forward a list of possible activities. However he emphasised that this is ‘not for the purpose of fine definition of the Commission’s activities, but rather to anticipate the capacities that it may need.’21 His list included:
clarifying the concept of treaties and agreements;
proposing a structure and process for implementing treaties and agreements: to a point of proposing a model;
parallel examination of truth-telling processes and building capacity to support: to a point of planning wide-spread implementation; and possibly
supporting the implementation of The Voice.22

Agreement making

5.22
As outlined in the Committee’s interim report, Aboriginal and Torres Strait Islander peoples have long advocated for agreement making and this support carried through to the regional dialogues conducted by the Referendum Council in 2017.23
5.23
Throughout the inquiry, the Committee received much evidence highlighting the range of agreement making already occurring across Australian states and territories.
5.24
Throughout the inquiry, the Committee has observed that agreement making is occurring at the local and regional level.
5.25
For example, in Chapter 3 of the interim report, the Committee considered the role of Prescribed Bodies Corporate in managing and protecting native title rights and interests. The Committee also heard evidence about the Murdi Paaki Regional Assembly, which engages with government agencies and industry on behalf of communities in western New South Wales.
5.26
Similarly, in Chapter 2 of this report, the Committee discussed evidence on the Empowered Communities model, which seeks to establish partnerships between government and Aboriginal and Torres Strait Islander communities.
5.27
The existence of these arrangements indicates that agreement making extends beyond the state-level treaty and settlement processes described in this chapter, and can encompass a wide range of arrangements across various local and regional communities.
5.28
This chapter outlines some prominent examples of state and regional agreement making processes which have recently concluded or are underway.

State and regional agreement making

5.29
Many stakeholders referred to agreement making processes occurring at the state or regional level to illustrate both the complexities and opportunities arising from negotiating and reaching agreements in Australia.24
5.30
Apmer Aharreng-arenykenh Aknganenty Aboriginal Corporation said agreement making is already occurring in Australia and internationally. It suggested that agreement making can be ‘healing’:
The negotiation of treaties/agreements that provide for full and final settlement between Australian governments and Aboriginal peoples (along language lines), in a way that is similar to the comprehensive ‘modern treaty’ agreements that have been negotiated in British Columbia, Canada offer the prospect of healing a festering sore.
While Indigenous Land Use Agreements (ILUAs) have been touted by some as being treaties, the only one which was comprehensive and delivered full and final settlement was the Noongar Agreement. Otherwise, they have primarily been used for the settlement of land issues. Perhaps the key point being made by those who have been promoting ILUAs as treaties is that the process of negotiation of agreements between native title holders and governments has been happening for some time already.25
5.31
The most significant concluded agreement is the South West Native Title Settlement which was concluded by the previous West Australian Government.

South West Native Title Settlement

5.32
The South West Native Title Settlement (also known as the Noongar Settlement or the Noongar Native Title Settlement) was often raised by stakeholders as an example of agreement making in Australia.26
5.33
The settlement is the most comprehensive native title agreement reached in Australia to date. It covers approximately 200,000 square meters of Western Australia, involves around 30,000 Noongar people and is valued at approximately $1.3 billion.27
5.34
The settlement was negotiated between the Government of Western Australia and the South West Aboriginal Land and Sea Council (SWALSC), which was acting on behalf of six groups of Noongar native title claimants.28
5.35
Ms Beck, Regional Development Manager of SWALSC suggested that the Noongar people decided to work together to negotiate the settlement to ensure it delivered meaningful outcomes:
The south-west settlement came about because if you look at the Noongar people’s country, we have a few pinpricks for native title. We have massive amounts of farms, we have towns, we have state forests, national forests and tiny little tenements. For us to win native title on these tiny little tenements would really only give us something close to nothing.29
5.36
Ms Beck said that in the lead up to negotiations with the Western Australian Government, the SWALSC consulted the Noongar communities to identify their priorities for a settlement agreement:
…there were hundreds and hundreds of meetings with our mob, saying ‘Do you want to negotiate?’ The amazing thing was that no-one ever talked about money. Everyone talked about a house, saying ‘Give us a home.’ Everyone talked about jobs for their kids, getting the kids out of the toxic city and taking them back home. They talked about getting us back our country, because our mob feel we’re not free to walk on our country. There’s a lot of fear there about getting fined, which has happened, and then if the fine is not paid you’re put in prison when you go on country. That went on for two years…30
5.37
Following consultation with Noongar communities, the SWALSC undertook negotiations with the Government of Western Australia, which lasted approximately five years.31 An agreement was eventually struck encompassing rights, obligations and opportunities relating to resources, land, governance, finance, and cultural heritage, including:
recognition by the Western Australian Parliament that the Noongar people are the owners and occupiers of South West Western Australia;
the establishment of the Noongar Boodja Trust which will receive $50 million annually for 12 years from the Government of Western Australia;
the creation and funding of six Noongar Regional Corporations to represent the rights and interests of the six Noongar native title groups involved in the settlement;
land access licences enabling lawful access to unallocated Crown land and unmanaged reserve land for customary activities;
a framework for the Department of Planning, Lands and Heritage and the Noongar Regional Corporations to work in partnership to improve the recording, protection and preservation of Aboriginal sites within the settlement area;
economic and community development frameworks to improve Noongar community outcomes;
funding for the establishment of a Noongar Cultural Centre; and
approximately $47 million in funding over 10 years to the Noongar Land Fund.32
5.38
In return for this settlement package, the Noongar people have agreed to renounce all current and future claims relating to ‘historical and contemporary dispossession’.33 They have surrendered all native title rights to the agreement area, and consented to the validation of any past invalid acts over those areas.34
5.39
Legally, the South West Native Title Settlement takes the form of six Indigenous Land Use Agreements covering each of the native title claims of the six Noongar groups involved. Although these Indigenous Land Use Agreements were approved by the Noongar people overall during a series of meetings in 2015, they have faced some opposition from a proportion of the Noongar people and four agreements were initially prevented from being registered with the Native Title Register.35
5.40
However, the Australian Government amended the Native Title Act 1993 (Cth) to enable the Indigenous Land Use Agreements to be registered and the settlement to proceed. On 17 October 2018, the Native Title Registrar registered the Indigenous Land Use Agreements and settlement will commence 60 business days after this date.36
5.41
Ms Beck suggested that despite the opposition, the majority of Noongar people did support the settlement:
Even though we’ve had people take us to court and we’ve had the naysayers, the majority of Noongars wanted this deal.37
5.42
Although the settlement was not negotiated as part of a specific treaty process, Mr Mick Gooda, former Aboriginal and Torres Strait Islander Social Justice Commissioner, asserted that it is an example of agreement making:
Something happened yesterday that’s pretty important to note, which is that the Noongar Agreement was registered in the Native Title Tribunal. It’s one of the biggest agreements we’ve got. When people ask about agreement making in any other country that would be called a treaty. When people ask me about treaty, I say, ‘We’ve already got treaties,’… All of the elements you’d think of when you think about a treaty are in there. They’d given up the right to claim Native Title in that area. They came to the conclusion that 98 per cent had been extinguished anyway. They got land and money back from the government. The government passed a piece of legislation that recognised them as the traditional owners of that country. It was state legislation; it wasn’t under the Native Title Act. There are the elements you would look at for a treaty, and the sun is still rising over in the west, so I think we’ve already got treaties in this country.38

State and territory treaty processes

5.43
In recent years three state and territory jurisdictions—Victoria, the Northern Territory and South Australia—have commenced treaty processes. The treaty processes have not had bipartisan support in any jurisdiction and were abandoned in South Australia with the change of Government in 2018.

Victoria

5.44
The Victorian Government has been working towards an agreement with Victorian Aboriginal communities since 2016 when it formed an Aboriginal Treaty Working Group comprised of Traditional Owners, Aboriginal community controlled organisations, and young people from across the state.
5.45
Mr Andrew Gargett, Director of Strategy, Engagement and Community at Aboriginal Victoria, said that the Victorian Government established the Working Group in response to ‘continued calls by Aboriginal communities for treaty’ and evidence which suggested self-determination affects more positive outcomes in Aboriginal communities:
International evidence points to the fact that when Indigenous people have control over their lives, have an ability to have a say and have power to make decisions then better outcomes follow. The Victorian government has a policy of self-determination, and we are grappling with and taking tangible steps to ensure that Aboriginal people and communities have a greater say over their lives.39
5.46
The Working Group was tasked with developing options for an Aboriginal Representative Body and advising the community and state government on the next steps towards a treaty making process.40 According to Mr Gargett, the Working Group led community consultation on the design of the Aboriginal Representative Body:
In November 2016 and in March 2017, the Aboriginal Treaty Working Group led two phases of community consultation on the design of the Aboriginal Representative Body. Consultations occurred through open, statewide forums; regional and metropolitan community consultations; online submissions; and community led treaty circles. Following this, in November and December 2017, an Aboriginal Community Assembly was held over six days. It was a representative group of Aboriginal Victorians selected independently from government following an open expression of interest process. This group made recommendations on outstanding elements on the design of the Aboriginal Representative Body.
Over 7,000 Aboriginal Victorians were engaged through those phases of consultation.41
5.47
In March 2018, the Working Group published a final report recommending key design principles and functions for the new Aboriginal Representative Body. For example, it recommended that the body should represent all Aboriginal people in Victoria and that it should embody principles including unity, inclusivity, practicality, independence, transparency and accountability.42
5.48
Once established the Aboriginal Representative Body will work with the Victorian Government to develop a framework to guide treaty negotiations.43 Mr Gargett suggested that the framework will ‘outline fundamental matters such as who can negotiate, what can be negotiated for and how negotiations can be carried out’.44
5.49
The Aboriginal Representative Body will also have a role in establishing a ‘treaty authority’ to act as an independent umpire and enforce the treaty negotiation framework. As well as the establishment of a self-determination fund, to support Aboriginal communities to ensure treaty negotiations are fair.45
5.50
Further information about the consultation and design process, and about the proposed structure of the Aboriginal Representative Body, is discussed in Chapter 2.
5.51
In January 2018, a Victorian Treaty Advancement Commission and a Treaty Commissioner were appointed to collaborate with the Working Group to conduct further consultation with Aboriginal communities across the state. Mr Gargett noted the role of the Commissioner in engaging Victorian Aboriginal communities:
In December 2017, the Victorian Treaty Advancement Commissioner, Jill Gallagher AO, was appointed to lead the process independently from government. This year, the commissioner has led a further series of treaty roadshows with Aboriginal communities across Victoria. These roadshows have engaged more than a thousand Aboriginal Victorians across 30 communities, providing the regional and local engagement which is vital for a legitimate treaty process… The establishment of the office of the commissioner has provided for greater independence for Aboriginal Victorians on the path to treaty and the establishment of the representative body.46
5.52
Mr Gargett suggested that appointment of a Victorian Treaty Commissioner ensured the independence and therefore legitimacy of consultation conducted as part of the treaty advancement process:
… At the beginning of the process, the treaty working group operated as an advisory body to government, and government provided the secretariat support for it and the assistance in running the consultations for that first two-year or 18-month phase…Then, at a period where we believed that the process had gained enough momentum, I suppose, it was deemed that creating that further step of independence, which was the Treaty Advancement Commissioner, was an adequate next step to ensure it did have that legitimacy and it wasn’t seen as being a government-led process.47
5.53
In July 2018, the Victorian Parliament passed the Advancing the Treaty Process with Aboriginal Victorians Bill 2018 without the support of the opposition party. This bill has four key objectives:
1
To advance the treaty process between Aboriginal Victorians and the state.
2
To establish that the Aboriginal Representative Body will be the sole representative of Aboriginal Victorians, as recognised by the state, for the purpose of establishing the framework necessary to support future treaty negotiations.
3
To enshrine principles of the treaty process.
4
To require that the Aboriginal Representative Body and the state work together to establish elements necessary to support future treaty negotiations.48
5.54
Mr Gargett explained that the ‘legislation enshrines self-determination as a guiding principle for treaty and, consistent with that principle, the legislation requires the future Aboriginal Representative Body and the government to work in partnership to establish the elements to support treaty negotiations’:
The legislation also enables the Aboriginal representative body, once established, to be formally recognised as the state’s equal partner in the next stage of the treaty process. It enshrines guiding principles for the treaty process, including self-determination and empowerment, that all participants in the treaty process must abide by, and it requires the representative body and government to report annually on progress to treaty.49
5.55
Mr Gargett also outlined clarified the limits of the Advancing the Treaty Process with Aboriginal Victorians Bill 2018:
The legislation does not do a range of things. It does not establish the representative body; that’s the role of the treaty advancement commissioner to do in partnership with the community. It doesn’t establish the new negotiation framework; that’s for negotiation between the representative body and the government. It doesn’t establish the parties to the treaty. It doesn’t specify the parameters, oversight or accountability of the self-determination fund. It doesn’t exclude any Aboriginal Victorians from the treaty process or pre-empt the issues, which groups, including clans or other groups, are competent to negotiate.50
5.56
Mr Gargett noted that approximately $37.5 million has been invested in ‘treaty and self-determination since the 2017-18 budget’.51 This included provision for an ongoing education campaign aimed at raising awareness and understanding of the treaty advancement process amongst the broader Victorian population:
The government has also sought to engage the broader community through the Deadly Questions campaign. Deadly Questions is a unique initiative that was launched in June this year. The campaign provides a platform for anyone to ask questions about Aboriginal cultures and have them answered by a diverse range of Aboriginal Victorians. It’s an online platform. Deadly Questions gives Aboriginal Victorians a platform to tell their stories and allow their voices to be amplified and provides non-Aboriginal Victorians a place to acquire a deeper understanding of Aboriginal cultures. The website puts Aboriginal voices and Aboriginal people at the heart of the campaign, and the website doesn't shy away from any tough questions, which is critical to establishing a true and honest dialogue between Aboriginal and non-Aboriginal Victorians. Since the campaign launched, we've had almost 3,000 questions asked, with very positive engagement. The second phase of Deadly Questions launched on 23 September, and the campaign shifted to a more explicit focus on treaty and treaties and providing information on what treaties could mean for both Aboriginal and non-Aboriginal Victorians.52
5.57
Ms Jill Gallagher AO, Victorian Treaty Advancement Commissioner, informed the Committee that general public support for the treaty advancement process is strong:
Throughout the treaty roadshows I’ve had the opportunity to speak to
non-Aboriginal people in those communities, and it’s just been inspirational. I have not come across one non-Aboriginal person who has been negative in any way, shape or form.53
5.58
The Victorian Government is now working towards the establishment of the Aboriginal Representative Body in early to mid-2019.54 However, Mr Gargett informed the Committee that it is not seeking to conclude treaty negotiations within a set timeframe as this approach is not consistent with the principle of self-determination which is guiding the process:
… in effectively a self-determination environment it wouldn’t be appropriate for the government to say, ‘We need to have a decision, to effectively have a negotiation, by then.’ …in similar modern-day treaty making in British Columbia the process has taken 10 or so years. It is not a quick process, but we’re taking a staged approach.55
5.59
Ms Gallagher noted that there are aspirations amongst the Victorian Aboriginal communities for clan based treaties as opposed to a single,
state-wide agreement:
Clan based treaties. There have to be multiple treaties. We were never one people right across Victoria let alone right across the country. There has to be a cultural footprint on the landscape within Victoria… There are 50,000 of us. The cultural footprint across the landscape, by those aspirations—culture being taught in schools as a compulsory subject, as an aspiration, land as an aspiration and culturalness for our own communities.
Through the stolen generation, through all the forced removals and relocations of our people with the missions, a lot of people have been disconnected from their traditional lands. So reclaiming culture and learning language again is really aspirational. And that, I believe, is doable. We have to be practical and also look at what’s within the state government remit.56
5.60
However, the long-term future of the treaty advancement process remains uncertain given the lack of bipartisan support for its progression.
5.61
Ms Gallagher noted that the treaty advancement process could be jeopardised by a change of state government in the future:
We know that the opposition in the state of Victoria don’t support treaty. They’ve made that public. We do have an act of parliament—first in the country—which enshrines the treaty process in legislation. It’s going to be difficult if we do get a change of government. It would be difficult for them to repeal legislation—they can, all government, we know, but it just makes it that little bit harder. But in that act it commits government to continue to talk to the representative body. It commits government to negotiate and set up the treaty authority and that self-determination fund I spoke about earlier.
So, yes, but it just makes it harder. I don’t know. I’ve seen governments grow, all parties grow, and evolve. A more recent expression of that was through marriage equality. I have confidence that all Australians support treaties for Aboriginal people in this country, and I have confidence that political parties will evolve to that level. That’s all I can do, have that faith and hope it does happen.57

Northern Territory

5.62
The Northern Territory Government began an agreement making process this year. On 7 June 2018, the Northern Territory Government and the four Northern Territory Land Councils came together at the Barunga Festival to sign a Memorandum of Understanding (MoU) outlining a future treaty or treaties agreement between the two parties.58
5.63
The MoU represented the first significant step in advancing treaty in the Northern Territory since the call for a national treaty was made in the Barunga Statement by the Northern and Central Land Councils in 1988.59
5.64
Under the terms of the MoU, the Northern Territory Government will appoint an independent Treaty Commissioner who will lead consultations with Aboriginal people and organisations across the territory, and develop a framework for treaty negotiations. The Commissioner will also take responsibility for engaging territorians in the treaty making process.60
5.65
The Northern Territory noted that both territory-wide and region-based treaties may be pursued:
An umbrella Treaty would be a general agreement between the Northern Territory Government and Aboriginal people in the Territory concerning certain matters.
Then under the umbrella Treaty, Aboriginal groups can negotiate separate agreements for additional or distinctive rights depending on their situation.61
5.66
It acknowledged that discussions with Aboriginal communities will inform the content of any agreement but suggested that a treaty or treaties may include:
Acknowledgement of the First Nations people of the Northern Territory, including the deep connection to land and the significant contributions Aboriginal people have made to our society, culture, and prosperity.
Truth telling process around the history of the Northern Territory, teaching about the displacement, the trauma, and the massacres.
Rules around how Aboriginal groups and the Northern Territory Government should work together. This may include a formal group that provides a voice to government.
Protection and support for Aboriginal language and culture.
Land and sea matters which will vary based on location.
Potential reparations for past injustices and for the dispossession of Aboriginal people from their resources and land.
Mechanisms for accountability so that all parties to a Treaty live up to the commitments they make.62
5.67
In a joint submission to the inquiry, the Central and Northern Land Councils noted that they intend to work with the Northern Territory Government, other Indigenous organisations and a yet to be appointed Treaty Commissioner to develop a state-wide consultation process to support agreement making.63

South Australia

5.68
The previous South Australian Government commenced a treaty process which was abandoned upon the change of government in March 2018.
5.69
In December 2016, the Hon Kyam Maher MLC, then Minister for Aboriginal Affairs, announced that the South Australian Government would commence treaty discussions with Aboriginal and Torres Strait Islander peoples residing in the state.64
5.70
In February 2017, Dr Roger Thomas was appointed as the independent Treaty Commissioner. In July 2017, following an extensive consultation process, the Treaty Commissioner released the report Talking Treaty: Summary of Engagements and Next Steps. The report recommended the continuation of consultation with Aboriginal and Torres Strait Islander peoples about the possibility of a treaty, and provided the key elements of a treaty negotiation framework to inform those consultations.65
5.71
In 2017-18, treaty negotiations occurred with the Adnyamathanha and Ngarrindjeri Nations.66
5.72
In February 2018, the Buthera Agreement was signed by the South Australian Government and Narungga Elders. The official signing of the Buthera Agreement laid the foundations for treaty and included capacity-building support for the Narungga Nation Aboriginal Corporation to drive development, economic enterprise and collaborative engagement with government agencies on Guuranda (the Yorke Peninsula).67
5.73
Following the 2018 state election, a change in state government resulted in a new policy direction which meant that further treaty negotiations were not pursued. However, according to the Department of Premier and Cabinet, the Buthera Agreement also includes ‘social service strategies covering youth justice, housing, domestic violence, health, child protection and education and cultural studies, which are issues the government will continue to tackle in partnership with the Narungga Nation’.68
5.74
Given this change in policy direction in Aboriginal affairs, Dr Thomas ceased the role of Treaty Commissioner in July 2018. However, he was quickly appointed as South Australia’s Commissioner for Aboriginal Engagement and tasked with advising the South Australian Government, as well as promoting Aboriginal inclusion more broadly through the nonAboriginal community.69
5.75
The South Australian Government has not made further comments on agreement making since its announcement to discontinue the process begun by the previous government prior to the state election.

Committee comment

The concept of ‘Makarrata’

5.76
The Committee notes that there are a range of views regarding the process and meaning of Makarrata.
5.77
The Committee recognises that the concept can be perceived as too culturally specific to be used more broadly across Aboriginal and Torres Strait Island nations generally. More definition of the term and greater understanding among both Aboriginal and Torres Strait Islander peoples and other Australians of how it might apply might help before the policy is taken any further.

Agreement making

5.78
The Committee recognises the long history of Aboriginal and Torres Strait Islander advocacy for agreement making at the national, state and regional level.
5.79
The Committee observes that agreement making is already taking place around Australia at both the state and regional level and through processes such as native title settlements.
5.80
The Committee is of the view that, once established, local and regional voices might continue to pursue agreements as they have done in areas like Murdi Paaki.

  • 1
    Uluru Statement from the Heart, 2017.
  • 2
    Uluru Statement from the Heart, 2017.
  • 3
    Referendum Council, Final Report of the Referendum Council, 2017, p. 21.
  • 4
    Prime Minister’s Indigenous Advisory Council, Submission 419, p. 11.
  • 5
    Uphold & Recognise, Submission 172: Attachment 1, 2018, p. 13.
  • 6
    The four documents are: Hearing Indigenous Voices, Makarrata, Journey from the Heart and A Fuller Declaration of Australia’s Nationhood.
  • 7
    Uphold & Recognise, Submission 172: Attachment 3, 2018, p. 6.
  • 8
    For example, see: Mr Les Coe, Proof Committee Hansard, Dubbo, 2 July 2018, p. 30; Ms Yvonne Weldon, Chairperson, Metropolitan Local Aboriginal Land Council, Proof Committee Hansard, Redfern, 5 October 2018, p. 7.
  • 9
    Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Interim Report, July 2018, p. 102.
  • 10
    Prime Minister’s Indigenous Advisory Council, Submission 419, p. 10. (Translated by Wathanainy Wunungmurra.)
  • 11
    Prime Minister’s Indigenous Advisory Council, Submission 419, pp. 10-11.
  • 12
    Prime Minister’s Indigenous Advisory Council, Submission 419, p. 11.
  • 13
    National Congress of Australia’s First Peoples, Submission 292, p. 3, fn. 1.
  • 14
    Mr Barry Richard Miller and Mrs Paula Ann Miller, Submission 426; Mr Thomas Wilkie-Black, Submission 450, p. 6.
  • 15
    National Congress of Australia’s First Peoples, Submission 292, p. 9.
  • 16
    Prime Minister’s Indigenous Advisory Council, Submission 419, p. 12.
  • 17
    Indigenous Peoples Organisation, Submission 338.2, p. i.
  • 18
    National Congress of Australia’s First Peoples, Submission 292, p. 9. See also: Indigenous Peoples Organisation, Submission 338.2.
  • 19
    Mr Thomas Wilkie-Black, Submission 450, p. 38.
  • 20
    National Congress of Australia’s First Peoples, Submission 292, p. 16.
  • 21
    Mr John Burke, Submission 447, p. v.
  • 22
    Mr John Burke, Submission 447, p. v.
  • 23
    Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Interim Report, July 2018, pp. 101-103.
  • 24
    For example, see: Mr Harry Hobbs, Submission 189, p. 4; Reconciliation Victoria, Submission 339, p. 5; Victorian Aboriginal Child Care Agency, Submission 346, p. 2; Aboriginal Peak Organisations Northern Territory, Submission 356, pp. 2-3; Central Land Council & Northern Land Council, Submission 357, p. 9; Reconciliation Western Australia, Submission 389, p. 7.
  • 25
    Apmer Aharreng-arenykenh Aknganenty Aboriginal Corporation, Submission 378, p. 7.
  • 26
    Dr Bryan Keon-Cohen AM, QC, Submission 161, p. 6; Uphold & Recognise,Submission 172: Attachment 3, p. 8; Victorian Aboriginal Child Care Agency, Submission 310, p. 2; Reconciliation WA, Submission 389, p. 7; Mr Mick Gooda, Proof Committee Hansard, Canberra, 18 October 2018, p. 10.
  • 27
    Government of Western Australia, South West Native Title Settlement, <https://www.dpc.wa.gov.au/swnts/South-West-Native-Title-Settlement/Pages/default.aspx> retrieved 6 November 2018; My Harry Hobbs, ‘The Noongar Settlement: Two Lessons for Treaty Making in Australia’, Australian Public Law, <https://auspublaw.org/2018/10/the-noongar-settlement-two-lessons-for-treaty-making-in-australia/> retrieved 6 November 2018.
  • 28
    Government of Western Australia, South West Native Title Settlement, <https://www.dpc.wa.gov.au/swnts/South-West-Native-Title-Settlement/Pages/default.apsx> retrieved 6 November 2018.
  • 29
    Ms Gail Beck, Regional Development Manager, South West Aboriginal Land and Sea Council, Proof Committee Hansard, Perth, 6 July 2018, p. 49.
  • 30
    Ms Gail Beck, Regional Development Manager, South West Aboriginal Land and Sea Council, Proof Committee Hansard, Perth, 6 July 2018, p. 49.
  • 31
    Ms Gail Beck, Regional Development Manager, South West Aboriginal Land and Sea Council, Proof Committee Hansard, Perth, 6 July 2018, p. 49.
  • 32
    Government of Western Australia, The South West Native Title Settlement: About the Settlement: Factsheet, <https://www.dpc.wa.gov.au/swnts/Documents/Fact%20sheet%20-%20About%20the%20South%20West%20Native%20Title%20Settlement-%20September%202017.pdf> retrieved 6 November 2018.
  • 33
    Mr Harry Hobbs, ‘The Noongar Settlement: Two Lessons for Treaty Making in Australia’, Australian Public Law, <https://auspublaw.org/2018/10/the-noongar-settlement-two-lessons-for-treaty-making-in-australia/> retrieved 6 November 2018.
  • 34
    Dr Bryan Keon-Cohen AM, QC, Submission 161, p. 6.
  • 35
    Mr Harry Hobbs, ‘The Noongar Settlement: Two Lessons for Treaty Making in Australia’, Australian Public Law, <https://auspublaw.org/2018/10/the-noongar-settlement-two-lessons-for-treaty-making-in-australia/> retrieved 6 November 2018.
  • 36
    Mr Harry Hobbs, ‘The Noongar Settlement: Two Lessons for Treaty Making in Australia’, Australian Public Law, <https://auspublaw.org/2018/10/the-noongar-settlement-two-lessons-for-treaty-making-in-australia/> retrieved 6 November 2018.
  • 37
    Ms Gail Beck, Regional Development Manager, South West Aboriginal Land and Sea Council, Proof Committee Hansard, Perth, 6 July 2018, p. 50.
  • 38
    Mr Mick Gooda, Proof Committee Hansard, Canberra, 18 October 2018, p. 10.
  • 39
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, pp. 14-15, 19.
  • 40
    Victorian Government, Aboriginal Treaty Working Group, <https://www.vic.gov.au/aboriginalvictoria/treaty/treaty-bodies/aboriginal-treaty-working-group.html> retrieved 6 November 2018.
  • 41
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, pp. 14-15.
  • 42
    Victorian Government, Final Report on the Design of The Aboriginal Representative Body, <https://www.vic.gov.au/aboriginalvictoria/treaty/final-report-on-the-design-of-the-aboriginal-representative-body/executive-summary-and-recommendations.html> retrieved 6 November 2018.
  • 43
    Victorian Government, What the Commission Will Do, <https://www.vic.gov.au/aboriginal
    victoria/treaty/jill-gallagher-ao-appointed-as-victorian-treaty-advancement-commissioner.html> retrieved 6 November 2018.
  • 44
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, p. 15.
  • 45
    Ms Jill Gallagher AO, Victorian Treaty Advancement Commissioner, Victorian Treaty Advancement Commission, Proof Committee Hansard, Melbourne, 26 September 2018, p. 24.
  • 46
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, pp. 14-15.
  • 47
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, p. 17.
  • 48
    Parliament of Victoria, Advancing the Treaty Process with Aboriginal Victorians Bill 2018, <https://www.parliament.vic.gov.au/publications/research-papers/download/36-research-papers/13861-advancing-the-treaty-process-with-aboriginal-victorians-bill-2018> retrieved 6 November 2018.
  • 49
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, p. 15.
  • 50
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, p. 15.
  • 51
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, p. 21.
  • 52
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, pp. 14-15.
  • 53
    Ms Jill Gallagher AO, Victorian Treaty Advancement Commissioner, Victorian Treaty Advancement Commission, Proof Committee Hansard, Melbourne, 26 September 2018, p. 27.
  • 54
    Victorian Treaty Advancement Commission, Treaty Statewide Gathering, p. 5, <http://victreatyadvancement.org.au/sites/default/files/inline-files/Treaty%20Statewide%20Gathering%20-%20Information%20Booklet_1.PDF> retrieved 6 November 2018; Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, p. 16.
  • 55
    Mr Andrew Gargett, Director of Strategy, Engagement and Community, Aboriginal Victoria, Proof Committee Hansard, Melbourne, 26 September 2018, p. 21.
  • 56
    Ms Jill Gallagher AO, Victorian Treaty Advancement Commissioner, Victorian Treaty Advancement Commission, Proof Committee Hansard, Melbourne, 26 September 2018, p. 27.
  • 57
    Ms Jill Gallagher AO, Victorian Treaty Advancement Commissioner, Victorian Treaty Advancement Commission, Proof Committee Hansard, Melbourne, 26 September 2018, p. 27.
  • 58
    Shahni Wellington, Australian Broadcasting Corporation, Indigenous Treaty a Step Closer after NT Government makes historic pledge, <https://www.abc.net.au/news/2018-06-08/indigenous-treaty-a-step-closer-after-nt-government-pledge/9848856> retrieved 6 November 2018.
  • 59
    Barunga Festival, The Barunga Statement, <https://www.barungafestival.com.au/1988-statement/> retrieved 6 November 2018; Central Land Council & Northern Land Council, Submission 357, p. 3.
  • 60
    Northern Territory Government, Treaty in the Northern Territory, <https://dcm.nt.gov.au/supporting-government/office-of-aboriginal-affairs/treaty/treaty-in-the-nt> retrieved 6 November 2018.
  • 61
    Northern Territory Government, Treaty or Treaties?, <https://dcm.nt.gov.au/supporting-government/office-of-aboriginal-affairs/treaty/treaty-or-treaties-factsheet> retrieved 6 November 2018.
  • 62
    Northern Territory Government, Treaty in the Northern Territory, <https://dcm.nt.gov.au/
    supporting-government/office-of-aboriginal-affairs/treaty/treaty-in-the-nt> retrieved 6 November 2018.
  • 63
    Central Land Council & Northern land Council, Submission 357, p. 12.
  • 64
    Caroline Winter, Australian Broadcasting Corporation, Treaty: South Australian Government enters historic discussions with Aboriginal nations, <https://www.abc.net.au/news/2016-12-14/south-australia-enters-historic-treaty-discussions/8120162> retrieved 7 November 2018.
  • 65
    Office of the Treaty Commissioner, Talking Treaty: Summary of Engagements and Next Steps, July 2017, p. 2.
  • 66
    Government of South Australia, Treaty Negotiations, <https://www.dpc.sa.gov.au/about/treaty-negotiations> retrieved 6 November 2018.
  • 67
    Government of South Australia, Treaty Negotiations, <https://www.dpc.sa.gov.au/about/treaty-negotiations> retrieved 6 November 2018.
  • 68
    Government of South Australia, Treaty Negotiations, <https://www.dpc.sa.gov.au/about/treaty-negotiations> retrieved 6 November 2018.
  • 69
    Government of South Australia, Commissioner for Aboriginal Engagement, <https://www.dpc.sa.gov.au/about/commissioner-for-aboriginal-engagement> retrieved 6 November 2018.

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