Victorian parliament votes for treaty — but still no sovereignty

Greens MP and Gunnai-Gunditjmara woman Lidia Thorpe speaking on the bill in the Victorian parliament on June 7.

The Victorian parliament’s lower house (Legislative Assembly) voted on June 7 to create a framework for signing a treaty, or treaties, with Aboriginal people. While it still needs to pass the upper house (Legislative Council), it marks the first legislative commitment to treaty by an Australian parliament.

The Labor government introduced amendments to the bill at the last minute, after a strong campaign led in parliament by Greens MP and Gunnai-Gunditjmara woman Lidia Thorpe. Thorpe had raised concerns that elders and Traditional Owners would be sidelined by the government-appointed people chosen to drive the treaty process. She also argued that any legislation should acknowledge the sovereignty of Victoria’s Aboriginal clans, after the Clan Elders Council said earlier this year the government’s treaty process so far had failed to engage with clan leaders.

The bill passed with the Greens’ support, but Thorpe remains concerned that sovereignty is still not acknowledged: “Treaties are between two sovereigns, and to talk about treaty or to go ahead with treaty negotiations and not actually recognise that Aboriginal people are the sovereign people of this land, then I think that’s one of the major failures of this legislation,” Thorpe told Guardian Australia on June 7. “If we can’t start by addressing sovereignty, then that’s a joke.”

The Guardian pointed out that sovereignty is only mentioned in the bill’s preamble: “Victorian traditional owners maintain that their sovereignty has never been ceded.”

Aboriginal people have fought for and waited a long time for treaty: Australia is the only Commonwealth country not to have a treaty with its indigenous peoples.

The historic vote comes a week before hearings are due to begin in a federal parliamentary committee on the proposal for constitutional recognition of Indigenous people, which was announced by Prime Minister Malcolm Turnbull after he rejected the Uluru Statement in October. The committee is jointly chaired by Labor Senator and Yawuru man Pat Dodson and Liberal MP Julian Leeser, and is due to present an interim report by July 30.

It also came just days before the 30th anniversary of the Barunga statement, presented to then-Prime Minister Bob Hawke at the 1988 Barunga festival, an annual festival in the remote Aboriginal community of Barunga in the Northern Territory. The statement asserted the First People’s self-determination and called for a treaty. Hawke promised one, raising the hopes of many, but failed to deliver.

Thirty years later, on June 8, the Northern Territory Labor government signed a memorandum of understanding pledging to work towards a treaty. However, the previous day, at a joint land councils meeting at Barunga, the government felt the heat as community leaders attacked its failure in areas of child protection, youth justice and Aboriginal imprisonment rates.

Chief Minister Michael Gunner has already disappointed communities with his back-down on a fracking moratorium and failure to prosecute any staff who were found to have abused children in Don Dale Detention Centre.

Western Australian Aboriginal affairs minister Ben Wyatt has announced a two-year consultation process to establish an Independent Office for Aboriginal People, which he said would give Aboriginal people a voice in parliament. But in South Australia, Premier Steven Marshall, who also holds the Aboriginal Affairs portfolio, has “paused” treaty negotiations, saying he has “other priorities” in Indigenous affairs.

The details of the Victorian and NT treaties are unknown of course: all Victorian and Territory Labor have committed to is to “work towards” treaties, have a conversation, establish frameworks. The next step will be ensuring that the outcome in each case is something more than mere symbolism and hollow words.

As a legal agreement between two sovereign powers, a treaty can and should recognise prior ownership and occupation — sovereignty — of the Aboriginal peoples entering into the treaty. But it can go beyond recognition, outlining things such as reparations for stolen land, protection of Aboriginal people’s rights and guaranteeing consultation processes for land use. Treaties can also give Aboriginal people legal recourse if treaty provisions are broken.

Yolngu man Galarrwuy Yunupingu, who was involved in the original Barunga statement, said “I’m still not gonna get a treaty today — just talking about treaty. And tomorrow, there won’t be an answer.”

It is also difficult to forget that the discussion about treaty has to happen now because of the great betrayal of a Labor Prime Minister 30 years ago. Chairperson of the Anindilyakwa Land Council Tony Wurramarrba summed up the feelings of the Aboriginal and Torres Strait Islander community by closing his address with these words: “Promises should be kept”.