What’s next on being Treaty ready in the NT? Tony McAvoy SC breaks down the NT Treaty Commissions’ final recommendations.

In 2018 the Chief Minister for the Northern Territory Michael Gunner signed the Barunga Agreement with four land councils under the Aboriginal Land Rights Act 1976 (Northern Territory) to advance the process of Treaty. The occasion was a landmark decision in the Northern Territory and a Treaty Commissioner was appointed. Yawuru Barrister Mick Dodson AM was appointed Treaty Commissioner at the time and worked in consultation with over 100 communities and started preparing a report. 

In the Barunga Agreement MOU, it was agreed that:

a) Aboriginal people, the First Nations, were the prior owners and occupiers of the land, seas and waters that are now called the Northern Territory of Australia.

b) The First Nations of the Northern Territory were self-governing in accordance with their traditional laws and customs; and that

c) First Nations peoples of the Northern Territory never ceded sovereignty of their lands, seas and waters.

It’s also agreed there has been deep injustice done to the Aboriginal people of the Northern Territory, including violent dispossession, the repression of their languages and cultures, and the forcible removal of children from their families, which have left a legacy of trauma, and loss that needs to be addressed and healed.

Northern Territory Treaty Commission Final Report

Wirdi Barrister Tony McAvoy SC was then appointed acting Treaty commissioner in 2021 to deliver the final report under the Northern Territory Treaty Commissioner Act 2020 and the Northern Territory Treaty Commissioner Terms of Reference after Dodson stepped down from his role.   

“People are still upset about the loss of their community councils and the power of the super SHIRES; It took away their power to make decisions and it took away the control of their daily lives.”

In the six-month period appointed to Tony McAvoy a final report with recommendations was handed down in June 2022 after the collection of work set out by Mick Dodson and Northern Territory Deputy Commissioner Ursula Raymond.  

Speaking with Kirstyn Lindsay for CAAMA Radio Tony McAvoy SC says there were a couple of issues that the Treaty Commissioner heard loud and clear.

“People are still upset about the loss of their community councils and the power of the super shires; it took away their power to make decisions and it took away the control of their daily lives.”  

He says people are still upset about what happened in 2008 and the preference is for language groups or language speakers to form regional groups for treaty purposes and the structure on how people organise.

“People prefer localised decisions in order to make decisions about their own, secondly they have experienced that and know what can work for them.”

“The second thing that was very clear was that people want to arrange themselves according to their traditional obligations. And that meant people who had the proper right to speak for the country should be the bosses for the political decisions.”

The Northern Territory Treaty Commission’s Final Report has been framed around these concerns based on how communities feel about regional councils not being equipped to look after people’s interests.  

One of the recommendations based on these concerns is that First Nations governments should replace regional councils, so they have their own decision-making process to speak on a government-to-government level when negotiating treaties. 

The development of a process for First Nations to gain official recognition as First Nations and transition to a First Nation Government.(Northern Territory Treaty Commission Final Report Page 9 Recommendation 3).

First Nations infrastructure in Australia

The NT Treaty Commission’s Final Report refers to the British Columbia Treaty model and how it is held in high regard by the First People’s Assembly of Victoria and the Northern Territory Treaty Commission, but the processes can’t be adapted because there isn’t any infrastructure for First Nations people in Australia. 

Separate to customary law/lore Tony McAvoy SC explains that Canada and British Columbia have had an Indian band system for over 100 years being a structure based around the clans and nations. This isn’t in place in Australia and until the 70’s he says it was thought that First Nations people would die out or be grouped together under assimilation. Independent nations hadn’t been fostered in Australia until the Mabo decision when the Native Title process was introduced when claims could be made under the rights and interests of clans. 

The Northern Territory has the Land Rights process. “It doesn’t sit on all basis with the Native Title process, we’ve been rebuilding these societal structures over time but there hasn’t been a formal mechanism in the way that there has been in Canada,” Tony said.

The Final report proposes that the Treaty Commissioner Act 2020 is repealed and replaced with a Treaty and Truth Commission Act. One of the roles of this act is to recognise those First Nations structures as a mechanism in negotiating around Treaties. 

How would an Indigenous Voice to parliament place First Nations clans and nations? 

When asked if an enshrined voice to parliament would be considered as an element of infrastructure as customary law is already in place Tony Mcavoy says “It’s separate, my expectation is that if the referendum passes and a national Aboriginal and Torres Strait Islander Voice to the Parliament and executive government is created by legislation that the representation which currently exists in Victoria under the First Peoples Assembly would be respected and they would nominate their representatives to that body.”

“In South Australia they’ve set up a structure and perhaps that would be honoured, in the ACT they have a body which is representative and speaks to the government on behalf of their Aboriginal and Torres Strait Islander people.”

“In the Territory and Queensland I think it might be a bit different, in the Territory I imagine there would be parts of the Territory that would want to identify their own representatives and they are entitled to do that if the process is developed on the basis that there is a number of regions, say 35 regions it may mean that people who ought to be separately represented have to be lumped in with other groups.”

Tony McAvoy says this isn’t ideal and that in Queensland regions like Cape York operates in its own way separate from the other Queensland groups. The Gulf of Carpentaria has their own political representation. 

“Ensuring that everyone gets proper representation at that national level is a difficult thing, I understand that if the referendum passes there will be a period of consultation about the establishment of that representative model, there’s a lot of hard work to get it right.”

The Commonwealth’s rights to govern the Northern Territory’s Treaty negotiations.

In section D of the Executive Summary in the Northern Territory Treaty Commission Final report (to consider what form a treaty should take), reference is made to tripartite agreements for Treaty and clan-based treaties having to have an agreement with First Nations, the Northern Territory government and the Commonwealth. 

The Northern Territory wasn’t a colony like the states prior to federation. The responsibility for the territories falls to the federal government post federation. 

“Ideally each First Nation would come to an agreement on how the commonwealth and state and territory and local government rules are going to operate around them or be exercised by them themselves. And that being negotiated at the one time.” 

Tony McAvoy says The Northern Territory government is not established by its own constitution or letters patent by the British Crown, but it is established by the Commonwealth legislation called the Northern Territory (Self Government Act) 1978

“The federal government can change that at any time, what it also means is that individual groups can have direct relationships with the commonwealth that might not be as easy in the states. For matters such as health, housing, education it’s conceivable that a First Nation could have a direct relationship with the government to provide those services with the community without the Northern Territory’s involvement.”

In his view both the territory or state government should be at the table because there are different constitutional responsibilities, if they aren’t both at the table then issues will fall through the gaps and there’s a need for communities to get some finality in their negotiations and not have to go through their negotiations with the state or territory then have to negotiate with the commonwealth.” A process Tony McAvoy SC says is unfair for communities to have to do that. 

“Ideally each First Nation would come to an agreement on how the commonwealth and state and territory and local government rules are going to operate around them or be exercised by them themselves. And that being negotiated at the one time.” 

He says that the result of this is that negotiations take a long time and in British Columbia those negotiations have taken twenty to thirty years, and he doesn’t think they have to take that long here. 

“A lot of the groundwork has been done in British Columbia and we know what the topics are it generally would be about the political will and the policy and legislative sittings right for those agreements to be negotiated.”

What is Treaty ready?  

In Chapter three of the NT Treaty Commissions’ Final Report Treaty Making Framework, Treaty Readiness is a consideration as a priority for Treaty negotiations. 

Throughout the Treaty process, concerted effort must be taken to ensure both government and First Nations are moving closer to becoming ‘Treaty-ready’. There are two aspects to Treaty readiness: readiness to negotiate and readiness to implement. 

Tony McAvoy explains that Treaty ready is when a group’s politics are sufficiently in order to engage in what is always a stressful process.

That means some people will have a deeper understanding of what the treaty process is, that there are structures for support for negotiators, there are structures to allow for feedback for community members of First Nations who are kept informed on what’s going on and brought along with the process, really the stability of internal governments.”

“What we know is that negotiations processes we know from Indigenous Land Use Agreements that negotiations processes with big mining companies or the government are very stressful because there’s a lot at stake, people are very concerned,” he says “I don’t say this about the Northern Territory government because I haven’t had that experience but It’s not uncommon to issue some grant to one group within a community while in some community and cause instability in the First Nations itself. 

He says communities have to be able to withstand that pressure; they have to have the systems to manage that and keep communications going and keep a steady strategic objective in mind.

“My knowledge of First Nations peopleS’ aspirations for their mob, that’s what they want. They want to be in control of their own destiny which shouldn’t be surprising to anybody.”

The Treaty Commission would like to see an early transition of First Nations into First Nations governments. There needs to be the structure and resources and that there is access to communications, and it becomes a government-to-government negotiation. 

The modern treaty process in British Columbia ends up in some form of self-government with the relevant First nations. 

“My knowledge of First Nations people’s aspirations for their mob, that’s what they want. They want to be in control of their own destiny which shouldn’t be surprising to anybody.”

Tony questions why people should have to wait for twenty years to achieve these agreements and he believes these government structures should have already started by now. 

He says in some nations this work is already in progress but for some First Nations there is a lot of work to do before getting to that point. There is no intention for those ready to be held back and support should be there for groups not Treaty ready. 

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