Prominent Tasmanian Aboriginal lawyer Michael Mansell has delivered a scathing assessment of Victoria’s recently finalised treaty with Aboriginal people, warning Tasmania and other states against using it as a template for their own treaty negotiations.

After nine years of discussions and considerable funding, Mansell argues the Victorian agreement delivers little more than a “good Reconciliation Plan” without addressing the core treaty elements of land rights, genuine empowerment through Aboriginal governance, or meaningful reparations for past injustices.

Writing as legal adviser who helped develop the framework for Victoria’s treaty process in 2016, Mansell questions whether the agreement deserves to be called a treaty at all, noting it returns no land, establishes no land purchase fund, provides no power-sharing arrangements and creates only another advisory body that government can ignore.

The Victoria treaty is no template for the rest of us

At the outset, if Victorian Aboriginals believe the ‘treaty’ they made with the Victorian government is just what they needed, then I say good luck to them and I wish them all the best.

Certainly, platitudes about the agreement have come thick and fast. Premier Jacinta Allan vaguely described the agreement as ‘a partnership to build a stronger, fairer, more equal Victoria for everyone.’ Jill Gallagher AO, former Commissioner of the Victorian Treaty Advancement Commission, said she was ‘over the moon’ with the result.

As a non-Victorian Aboriginal it is not my business to tell the Victorians they have a dud, not a treaty. But because many of the Victorian Aboriginal leaders – Jill Gallagher, Ngarra Murray and Rueben Berg – commended the Victorian ‘treaty’ as a template for the rest of Australia, those of us who would be affected by such a template have every right to look deeper at the Victorian agreement.

What does the Victorian agreement deliver?

After nine years and considerable funding, the Victorian agreement delivers a commitment to include truth-telling in the school curriculum, a formal apology to First Peoples in parliament and greater use of traditional place names.

Nothing new in any of that. Truth-telling is to be told in schools – through more books or Aboriginal speakers one assumes. Apology – how many more meaningless apologies do we need? And dual naming has been part of Victorian landscape policy since 1992 when the Grampians national park was co-named Gariwerd in 1992. In addition, dual naming of the following has been around for decades—

Mount Zero / Mura Mura (little hill)
Halls Gap / Budja Budja
Mount Stapylton / Gunigalg
Mount Difficult / Gar

In 1998, the Geographical Names Act was passed which established a set of rules for naming roads, features and localities. The naming rules emphasise inclusivity and aim to include names from Aboriginal languages. Oh, I forgot, the Victorian treaty will give the Aboriginal group an office in the parliament.

What is a treaty in the context of Aboriginal people?

Generally, a treaty is a political agreement between two sovereigns, but a treaty can be made by a sovereign with an unrecognised sovereign.

For example, in 2010, then Prime Minister Jullia Gillard made an agreement with big mining companies about how much they should pay for extracting minerals. The legislated Minerals Resource Rent Tax (MRRT) bound the sovereign of Australia to the deal with non-sovereign mining companies. The Australian government initially expected mining companies to pay $4 billion annually, but by May 2013, the projected revenue for the financial year was less than $200 million under the ‘treaty.’

A treaty is determined by its content. To the extent that it is practicable, any treaty with Aboriginal people is expected to restore the things that were taken from Aboriginal people. Three core subjects then, are land and empowerment and reparations for past injustices and for the dispossession. Aboriginal lawyer Tony McAvoy’s 180 page report for a NT treaty emphasised that land was central to any treaty. McAvoy’s 2022 Northern Territory treaty report also recommended that self-determination through Aboriginal governance be at least on par with local government.

The Victorian ‘treaty’

The Victorian ‘treaty’ does not return any land. It does not even establish a land purchase fund. There is no sharing of power.

It does not require legislated empowerment through designated seats in parliament or local government authority to vest in discrete Aboriginal communities such as Lake Tyers or Framlingham. Instead, the agreement effectively sets up another advisory body as another layer of bureaucracy. There are no reparations, only apologies.

The Victorian ‘treaty’ provides for truth telling, dual naming, training and an advisory body. It does not confer rights that do not already exist. For example, dual names already exist in Victoria; training facilities are available and truth-telling in schools must mean more books. There is nothing stopping Aborigines lobbying government so why another advisory body when the others, such as the Coalition of Peaks in close-the-gap, are ignored and inneffective. The Victorian ‘treaty’ does not impose obligations on government to do as the advisory body asks.

Take away the word ‘treaty’ and the end result is a good Reconciliation Plan, but nothing more.

Thomas Mayo, campaigner for an entrenched advisory body in the constitution, described the Victorian treaty as a closing the gap measure. Professor Tom Calma admitted the result in Victoria does not enable Aborigines to take on government’s role [as per self-determination], but to work with governments on effective and efficient programs.

Suitable for elsewhere?

The content of any agreement between government and Aborigines determines whether it is a treaty or something else. It is hard to imagine a treaty with Aborigines that does not deal with land.

For instance, the 2015 Noongar agreement in WA gave Aborigines in south-west WA 320,000 ha plus $50m per year over 10 years. Even that outcome could not qualify as a treaty because it did not deal with empowerment, reparations or sovereignty issues such as whether Aboriginal land owners were exempt from local government authority.

A national treaty would provide all Aboriginal people with equal access to justice instead of some agreements in some states but not in others, or poor agreements in one place but good outcomes in others.

Regardless of how strong or weak a national treaty is, it binds commonwealth, state and territory governments; it binds local government, courts and police, mining companies, business and the public because it confers rights on Aborigines and Islanders and imposes obligations on institutions and people with the force of a federal law – in the same way the federal Racial Discrimination Act 1975 and Native Title Act 1993 do.

A national treaty is capable of delivering a practical bundle of rights that can resurrect Aboriginal pride of place. For instance, the commonwealth could extinguish the classification of ‘crown lands’ and return those lands to Aboriginal people on payment by the federal government to the states of compensation.

As a template for other jurisdictions, the outcome of Victorian treaty discussions falls far short of what should be.

Michael Mansell is an Aboriginal lawyer and author of Treaty and Statehood, Federation Press. Michael was involved in developing a framework for the Victorian treaty process in 2016.

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