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The Victorian treaty process – three phases overview

In response to ongoing calls from Aboriginal Victorians, the Victorian Government committed to pursuing treaty in 2016.

Since that time, Victoria has been leading the nation to progress treaty and advance Aboriginal self-determination in partnership with Aboriginal Victorians. Victoria is currently in Phase 2 of a three-phase process towards treaty.

Phase 1: Establishing an Aboriginal Representative Body

Phase 1 began with the Victorian Government’s commitment to treaty.

Since then, we have seen:

  • extensive community consultation
  • appointment of a dedicated Victorian Treaty Advancement Commissioner
  • launch of Deadly Questions, an award-winning campaign to build public awareness and support for treaty
  • passage of the Treaty Act, Australia’s first treaty legislation
  • establishment of the Assembly, the first statewide, democratically elected representative body for Aboriginal Victorians in the state’s history.

On 9 December 2019, on the recommendation of the Victorian Treaty Advancement Commissioner, the former Minister for Aboriginal Affairs, Gavin Jennings declared the Assembly to be the Aboriginal Representative Body.

This declaration, via a notice in the Victorian Government Gazette, satisfied the Minister’s obligations under the Treaty Act to recognise the Assembly as the State’s partner in the next phase of treaty. This signified the completion of Phase 1 of the treaty process.

The Advancing the Treaty Process Annual Report and Plan 2018-19 describes the work undertaken in Phase 1 in further detail.

Phase 2: Developing a treaty framework

Phase 2 commenced in December 2019, following the Assembly’s declaration as the Aboriginal Representative Body. As the Aboriginal Representative Body under the Treaty Act, the Assembly is the sole representative of Aboriginal Victorians responsible for working with the State to establish elements necessary to support future treaty negotiations. The Assembly and the State are working in partnership in Phase 2 to establish by agreement a Treaty Authority, treaty negotiation framework and self-determination fund.

The Assembly and the State must also agree to a dispute resolution process to apply to disputes arising in Phase 2. Together, these four elements are referred to throughout this document as the treaty elements.

Phase 2 will not involve the negotiation of a treaty or treaties, as this is not the function of the Aboriginal Representative Body. Instead, through the treaty negotiation framework, the Assembly and the State will likely determine the Aboriginal parties that will have standing to negotiate a treaty or treaties with the State in Phase 3.

Phase 3: Negotiating treaties

Phase 3 will commence once the State and the Assembly have established the treaty elements by agreement. Phase 3 will comprise of treaty negotiations with Aboriginal negotiating parties, to be determined through the treaty negotiation framework.

As set out in the Treaty Act, the treaty negotiation framework must provide for the negotiation of a treaty or treaties that recognise historic wrongs, support reconciliation and have positive impacts for Victoria, among other matters. What this might look like, and any other content of a future treaty or treaties, will be subject to negotiation between the parties to any treaty or treaties.

During Phase 3, the self-determination fund will play a critical role in supporting Aboriginal negotiating parties to have an equal standing with the State in treaty negotiations.

The Victorian treaty process - three phases overview

Image version: The Victorian treaty process - three phases overview

The Victorian treaty process - three phases overview
Image version: The Victorian treaty process - three phases overview

Phase 1

What happens in phase 1

  • Establishing an Aboriginal Representative Body
  • Victorian Treaty Advancement Commission
  • Advancing the Treaty Process with Aboriginal Victorians Act 2018
  • Communications - 'Deadly Questions'
  • Elections for Aboriginal Representative Body

Who's involved?

  • Victorian Treaty Advancement Commission (including Aboriginal Treaty Working Group)
  • State of Victoria

Phase 2

What happens in phase 2

Developing a treaty framework

  • Aboriginal Representative Body and the State develop and agree:
    1. Dispute resolution process
    2. Self-determination fund
    3. Treaty Authority
    4. Treaty negotiation framework
  • Continue a communications and awareness campaign to engage all Victorians on treaty Phase.

Process

Aboriginal representative body and State of Victoria (we are here)

Dispute resolution process:

  • Self-determination fund
  • Treaty Authority 'Independent umpire'
  • Treaty negotiation 

Output: Treaty framework

Phase 3

What happens in phase 3

Negotiating treaties

  • Negotiations commence
  • The Aboriginal Representative Body will administer the self-determination fund

Process

  1. Treaty authority: Facilitate and oversee treaty negotiations and dispute resolution 'Independent umpire'
  2. State of Victoria and Aboriginal negotiating parties commence negotiation

Output: Treaty or treaties

Download - The Victorian treaty process - three phases overview

Reviewed 05 October 2020

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