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. 

The Australian Human Rights Commission have released a resource kit for all Australians to understand what the Voice referendum means through the lens of human rights for Aboriginal and Torres Strait Islander Peoples.

Understanding the Referendum from a Human Rights Perspective is an educational resource featuring nine chapters addressing how to minimise harm, promote cultural humility and steers the conversation on human rights principles based on facts so people can make informed decisions when voting on the proposed Voice to Parliament.

President of the Australian Human Rights Commission Emertis Professor Rosalind Croucher AM says the resource kit is a contribution from the human rights commission to provide the Australian public information on human rights from a nonpartisan perspective on the Voice proposal. 

Nine documents are available from the resource:

The Uluru Statement from the Heart

Minimising Harm in conversations about the referendum

Indigenous Rights & the Voice.

The history of Aboriginal and Torres Strait Islander peoples advocating for the right to be heard.

Symbolic change or substantive reform

Self-determination and indigenous peoples

The Voice and human rights

Referendums and constitutional change

Support services

Wamba Wamba Mutthi Mutthi man Jason Kelly is no stranger to working towards a better future for his people and community and was instrumental in the initiation of the Yoorrook Justice Commission, Yoo-rrook is a Wamba Wamba word for truth.

Jason comes from a long line of respected Elders and is proud to talk about his grandparents and the work of his late grandmother who worked tirelessly with other Elders and family members to bring Mungo Man and Mungo Woman home to rest on Country.

“Customary law is where Aboriginal law is recognised which is really important given that we are a continent with 250 different language groups and 400 different nations,” he says “There’s a really good document underpinning our rights as we go through forward with Treaty. I wanted to make sure I had a place on the assembly (FPAV) to keep that at the forefront.”

Recently the First Peoples Assembly of Victoria announced the re-election of Jason as an assembly member in the next phase of Treaty negations. His new vision for the Assembly (FPAV) and community includes the application of International best practice principals to draft a Peace Accord with the state government authoring an official agreement to come to peace in conflict, giving justice and recognition of invasion on the lands and waters of First Nations people. His second priority is to have the United Nations Declaration of Human Rights (UNDRIP) implemented in policy in the Koorie Justice Unit.

Jason is exploring how to progress the human rights of not just Aboriginal Victorians but all First Nations Peoples across Australia.

“I don’t really like the word reconciliation because it refers to a relationship to begin with and after all how does one reconcile genocide, but I aim for something bigger, for transformation.”

He says he is constantly referring back to the United Nations Declaration of Rights of Indigenous Peoples (UNDRIP). “There’s your treaty there, there’s your voice there in a really important international policy. Not unlike the charter of human rights.”
Jason says it’s the only policy document he knows of, ratified by the United Nations that gives weight to customary law. “Customary law is where Aboriginal law is recognised which is really important given that we are a continent with 250 different language groups and 400 different nations,” he says “There’s a really good document underpinning our rights as we go through forward with Treaty. I wanted to make sure I had a place on the assembly (FPAV) to keep that at the forefront.”

Previously when I interviewed Jason Kelly on Treaty and the announcement of the Truth-telling commission for 3KND’s Ballit Dhumba (Strong Talk) he discussed the process of healing and transformation.

“People will see and learn that genocide has occurred. When you’re looking at the massacres, the protection era, the assimilation era, intergenerational trauma, that war of colonisation that is still continuing. The treaty itself,” he says “When we are able to take control of our destiny in terms of the healing and supporting everybody else to heal. That will be the smoking ceremony for all Victorians and all Australians. And hopefully, we’ve ensured our right to co-exist. And we’ve got the ability to deliver reconciliation.”

Jason says, “I don’t really like the word reconciliation because it refers to a relationship to begin with and after all how does one reconcile genocide, but I aim for something bigger, for transformation.”

When speaking about his peoples’ system of law and kinship or ‘totems’ and how that works for more than 38 nations in Victoria. The treaty in itself fits within that system and has a relationship with our equal opposite.

He says by allowing us the pride again to take control of our own destiny we’ve then got the opportunity to reverse the effects of colonisation because we’re leading the way.

“We’re having a say about our destiny and the people will understand why the eagle must marry the crow. Unless like our law you marry equal opposites,” he says “they’ll never have an understanding of the universe. That’s what’s been missing. That’s what we are talking about with the Closing the Gap agreement.”

Jason says he won’t see it in his lifetime but by bringing back that culture and the possibility of language being fluent again, his people will be having ceremony again.

The next steps and vision for Treaty in Victoria

When it comes to Aboriginal health and the quality-of-life Jason says community control goes to the heart of self-determination.

He says the critical element is grass roots which he believes is something we’ve got away from. “Local-level individual communities know what’s best for them.”
I think that’s where UNDRIP as a legislative piece will give power to individuals and communities collectively,” he says.

Up to now the foundation for Treaty in Victoria has been laid and the next phase includes the development of the framework. So far, the First People’s Assembly of Victoria has set up The Yoorrook Justice Commission, Self-determination Fund, Treaty Authority and the newly appointed Elders Voice Co-Chairs to assist cultural authority and guidance to the Assembly members.

In part two of this interview with Jason Kelly the discussion leads to clan-based treaties and options around what Treaty/Treaties could look like.

The Treaty Authority statewide representative body has always said nothing is off the table.
This includes Treaties between clans and nations.
Jason says, “This is why I am committed to getting the Peace Accord and getting UNDRIP into legislation.”

He would like to see Registered Aboriginal Parties and the Traditional Owner Groups, and all other Aboriginal Victorians work towards an agreement in what he says could be a
one page document for when off country mob and stolen generations come onto country and that they were cared for and can go to certain meeting places where there would be a cultural exchange to maintain and strengthen connections. A place of safety.

“We know what’s best and it’s time for a change and we know what’s best for us and we would rather have a control and say than having those entities assuming for us.”

With the Assembly setting its sights on reducing the very high rates of children in out-of-home care and the crisis on recidivism and incarceration Jason refers to the High Court case and Mabo decision when it comes to the upcoming referendum. He says Victoria got it right with Truth, Treaty, and Voice. He says the decision for the Statement from the Heart was to have something more meaningful than just an acknowledgement in the Constitution. He says that when Aboriginal Victorians were included in the state constitution in 2004 it did nothing for Closing the Gap Measures which is why they’ve chosen this pathway with Treaty.

He says all Aboriginal and Torres Strait Islander peoples have a right to co-exist and have a meaningful say in how to have an impact in addressing all those Closing the Gap commitments.

Sovereignty has not been ceded and the Treaty will not cede sovereignty as Treaty is an agreement between two sovereigns.

“When asked what the best outcome is I always talk about it ensuring our rights to co-exist,” he says “our old people saw Australia as a bicultural society where we tried to look after people that came onto country, all those became outcomes of the massacres and assimilation era. Surely, we are big enough to co-exist.”

Transformation rather than reconciliation.

Jason Kelly says Treaty in a cultural context is a smoking and healing for everyone. He says “People should have a better understanding of the truth.”

“We know what’s best and it’s time for a change and we know what’s best for us and we would rather have a control and say than have those entities assuming for us.”