Report – NT Treaty Commission, 27 July 2022
Northern Territory Treaty Commission: final report
Since its commencement in March 2019, the Northern Territory Treaty Commission has consulted with Aboriginal people across the Northern Territory and conducted research to inform the development of a framework for Treaty negotiations between First Nations Territorians and the Northern Territory (NT) Government.
The work of the Treaty Commission has previously been outlined in an interim report delivered in March 2020 and a detailed discussion paper delivered in June 2020. This final report builds upon this previous work to deliver the Treaty Commission’s commitment to provide recommendations to the NT Government on the development of a framework for future Treaty negotiations. These recommendations are informed by a two-stage consultation process undertaken by the Treaty Commission in 2020 and 2021 – a desktop review of national and international Treaty models and consideration of the NT’s unique political, historical and legal context.
Executive Summary
The time for action has arrived. After many years of lobbying and advocacy by Aboriginal people in the Northern Territory (NT), the four statutory Land Councils in the NT entered into the landmark Barunga Agreement on 8 June 2018.
The Barunga Agreement set out the fundamentals of a path towards treaty and a new relationship between Aboriginal people, the NT Government and the broader population of the NT. In response to the Barunga Agreement, the Treaty Commissioner Act 2020 (NT) was passed in the NT Parliament, creating the statutory office of Treaty Commissioner and the Office of the NT Treaty Commissioner. The office of the NT Treaty Commissioner was initially occupied by Professor Mick Dodson AO and as of 8 December 2021, by Acting Treaty Commissioner, Tony McAvoy SC.
The NT Treaty Commissioner has the following functions and powers under section 11 of the Treaty Commissioner Act 2020:
• To gauge support in the NT for a treaty between the NT and Aboriginal peoples of the NT.
• To consider what a treaty in the NT should seek to achieve.
• To consider whether there should be one or multiple treaties in the NT.
• To consider what form a treaty should take.
• To consider what outcomes are possible for Aboriginal peoples of the NT under a treaty.
• To research best practice processes to treaty negotiations and consider which process should be used.
• To provide advice on matters related to a treaty between the NT and Aboriginal peoples of the NT.
• To promote awareness of the Treaty Commission’s activities among Territorians.
• To perform other functions conferred on the Treaty Commissioner by the Minister.
Considering the functions of the Treaty Commissioner individually, this Report records the fulfilment of those functions as set out below:
a. to gauge support in the NT for a treaty between the NT and Aboriginal peoples of the NT;
The office of the NT Treaty Commission has conducted extensive consultation in the NT with communities, Land Councils and Aboriginal community organisations. This consultation has shown there is clearly significant support in the NT for treaties between the NT Government and First Nations of the NT. Details of this consultation can be found in Section 1.3 of this Report.
b. to consider what a treaty in the NT should seek to achieve;
The Treaty Commission has considered what a treaty or treaties in the NT should seek to achieve, and determined that the fundamental objective of Treaties in the NT is to achieve the highest levels of self determination that each First Nation may conceivably attain. The fulfilment of this objective will result in different outcomes for different First Nations, and will be redefined over time. Ultimately, treaties between First Nations and the NT must be firmly focussed on enabling First Nation selfgovernment; the exercise of decision-making responsibility must be viewed in this context. In this regard, treaties will facilitate and build upon the promise of self-determination underpinning the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)and the NT Government’s Local Decision Making process.
c. to consider whether there should be one or multiple treaties in the NT;
The clear message to the Treaty Commission during consultations has been that there is a need for multiple treaties in the NT securing the sovereign status of each First Nation and facilitating their self-government. However, consultation has also been clear in disclosing that there is a need to, as far as possible, bring all Aboriginal people resident in the NT along in the treaty process. Just as significantly, international and interstate experience tells us that there must be a transparent and balanced framework within which the individual treaties can be negotiated. In this Report, that framework has been referred to as a Treaty-Making Framework and the broad agreement referred to as the Territory Wide Agreement (TWA). The TWA itself is a form of treaty and should be understood as such. The negotiation of that framework will need to be owned and mandated by the First Nations and, in the end, entered into by a sufficient collective of NT First Nations, the NT Government , if appropriate the Federal Government, and the individual First Nations wanting to engage in treaty negotiations according to that framework. Further information on the proposed Treaty-Making Framework is at Chapter Three of this Report.
d. to consider what form a treaty should take;
The Treaty Commission considers that, ideally, treaties in the NT ought to be tripartite agreements between the First Nations, the NT Government and the Commonwealth Government. Throughout the consultation and report-writing period, the Federal Government had a policy position that First Nations treaties were a matter for the States and Territories. However, the change in Federal Government following the general election on 21 May 2022 has also brought a change in the Federal policy in relation to the Uluru Statement from the Heart, and by extension the role the Federal Government will play in the support for and negotiation of treaties and truth-telling. Notwithstanding the change in policy, Federal Government participation, in earnest, may take some time and the processes outlined in this Report will need to continue in the expectation of Federal participation, funding and contribution to compensation and reparations.
e. to consider what outcomes are possible for Aboriginal peoples of the NT under a treaty;
The outcomes that are possible for Aboriginal peoples of the NT have been considered and, while the process of settling on a broad range of negotiation topics and minimum outcomes in a TWA is something that only the First Nations can do in negotiation with the NT Government, the following topics emerge from the consultations to date:
• Self-government
• Local and Territory wide recognition and representation for First Nations
• Independent decision making at a local level and participation in the democratic process
• Economic independence
• Reparations
It is important to note that the facilitation of a Territory wide First Nations representative body is also recommended. While much work has been done since May 2017 when the Uluru Statement from the Heart was delivered to the nation to identify how a national voice to parliament could work, little has been done in the NT. There is no doubt that there is a proper place for a representative voice to parliament but there are many options that must be considered to ensure a model that meets the demands of the First Nations of the NT. This issue is discussed in detail in this Report and a mechanism to allow First Nations control over the model has been recommended.
It is also significant that self-government features so prominently as a future goal for First Nations in the NT. This focus on localised governance that reflects traditional decision making, is a uniquely Territory response borne of a very successful land rights regime and lengthy experience in self-governance in community councils prior to the introduction of ‘super shires’ in 2008. The strength of First Nations desire for more direct and localised government is deep and persistent. It is also very achievable in the non-municipal areas of the NT where almost the entirety of the shire councillors are First Nations people.
f. to research best practice processes to treaty negotiations and consider which process should be used;
Significant volumes of material have been considered to assist in developing recommendations for a treaty-making process in the NT. A great deal of consistency exists between the proposed NT process and the processes being applied in Victoria. This is no coincidence. In both the NT and the State of Victoria great regard has been had to the ‘Madein-British Columbia’ treaty process developed and implemented in British Columbia, Canada. However, the process in British Columbia cannot be directly adapted to the Australian circumstances as the First Nations infrastructure that exists within the political landscape in British Columbia, and has existed in some form since the 1800’s, is still being developed in this country. This Report recommends the development of First Nations infrastructure to allow for a TWA to be entered into and for local First Nation recognition and representation, as vehicles for self determination in themselves, and as precursors to self-government and individual First Nation treaties.
g. to provide advice on matters related to a treaty between the NT and Aboriginal peoples of the NT;
The Treaty Commission, through its development of this Report and through submissions to the NT Parliament in relation to the NT Government Local Decision Making policy, has and will continue to provide advice on matters related to a treaty between the Aboriginal peoples of the NT and the NT Government.
h. to promote awareness of the Treaty Commission’s activities among Territorians;
The Treaty Commission has engaged in significant activities to promote awareness of its activities. This includes the production and distribution of a discussion paper, individual meetings with organisations and land councils, Ministers and their staffers, departmental officers, maintenance of social media, development and participation in a treaty webinar, radio and mainstream media interviews.
i. to perform other functions conferred on the Treaty Commissioner by the Minister.
The Minister has not conferred any other functions on the Treaty Commissioner to date. However, this Report recommends that the Minster confer some functions on the Acting Treaty Commissioner to facilitate the transition to the next stage of the treaty process.
In delivering this report to the Minister, the Acting Treaty Commissioner has fulfilled the existing statutory functions of the Treaty Commissioner pursuant to the Treaty Commissioner Act 2020. The Final Report sets out the Treaty Commission’s recommendations for a Treaty-Making Framework for the Northern Territory. The Report recommends:
Treaty Commissioner Recommendations
1. The establishment of a First Nations Forum through which Aboriginal Territorians can endorse a Treaty model and decide how First Nations should be represented in Treaty negotiations.
2. The development of a Treaty process that allows for the negotiations of many individual Treaties between the NT Government and First Nations (or coalitions of First Nations). This would include negotiation of:
a. A Territory-Wide Agreement, which would be negotiated first and would set out the broad scope, minimum standards, key principles and mandatory terms necessary for all subsequent treaty negotiations in the NT.
b. Negotiation of individual treaties between First Nations (or coalitions of First Nations) and the NT Government.
3. The development of a process for First Nations to gain official recognition as First Nations and transition to a First Nation Government.
4. The development of an Office of Treaty-Making within the NT Government to coordinate NT Government responses to Treaty-making.
5. The extension and expansion of the Treaty Commission to become a Treaty and Truth Commission under new Territory legislation, to progress truth-telling work across the NT and practically support First Nations prior to and during the Treaty negotiation process.
6. The creation of an Aboriginal Ombudsman position to respond to complaints regarding government participation in the Treaty process.
7. The creation of a First Nations Treaty Tribunal to deal with disputes in relation to First Nation membership and boundary, and in relation to Treaty performance.
8. The delivery of significant legislative reform to underpin this work, namely through:
a. The development of a Treaty and Truth Commission Act 2022 to act as the legislative basis for negotiating the Territory-Wide Agreement, setting up the Treaty and Truth Commission and recognising First Nations.
b. The development of a First Nations SelfGovernment Act (FNSGA) to provide the legislative basis for First Nations to seek recognition and transition to First Nation Governments.
c. Amendment of the Local Government Act 2019 (LGA) to acknowledge Traditional Owners, confine the LGA to municipal areas as the FNSGA expands, incorporate human rights principles and provide greater decision-making mechanisms for First Nations people in local councils.
9. Ensuring both First Nations and the NT Government take concerted steps to become ‘Treaty-ready’ and in a position to negotiate and implement treaties on equal footing.
Read the full report here: https://apo.org.au/sites/default/files/resource-files/2022-07/apo-nid318426.pdf.
