Charles Pakana (VAN):

As we close in on the halfway point of 2025, negotiations for the first iteration of a statewide treaty between the First Peoples Assembly of Victoria, representing all Aboriginal Victorians and Torres Strait Islanders, of course, and the state government are nearly six months in. Joining me today for a semi-regular insight into treaty progress is Gunditjmara Assembly Co-Chair Rueben Berg. Ruben, thanks for joining me again today.

Rueben Berg:

My pleasure.

Charles:

Rueben, it was in January this year that the assembly and State agreed to the focus of first round of statewide treaty negotiations, and key among those principles and objectives were evolving the assembly into an ongoing first Peoples representative body, and we’ll discuss that in a short bit. Implementing accountability mechanisms under national agreement on closing the gap. All important, and you and I have yawned about this many times over the years, and of course, work to support ongoing truth-telling, education, healing, and reconciliation in Victoria. Let’s go back to that second point, and that is implementing accountability mechanisms under the national agreement on closing the gap. Where are we at with that and how does treaty actually fit in to support this?

Rueben:

Yeah, so where we’re at at the moment is we’re having ongoing negotiations with the State about all these subject matters, and so I’m able to share with you about the assembly’s position on these various things. Obviously we’re not able to share the State’s perspective on things.

Charles:

I was going to ask that. That’s a bit of a letdown.

Rueben:

But we can share the assembly’s position on things, and know that this is where we’ve got to from our position based on robust discussions so far.

In terms of the accountability mechanism, there’s two components to accountability from our perspective, and we’re talking about holding government accountable when we talk about accountability.

Charles:

Sure.

Rueben:

So we’ve got the assembly at the moment and it is a democratically elected body. We’re hoping, as you said, to evolve that, and then to be able to have different elements of that future body. So one of those elements would be an accountability mechanism, and so that would be a standalone body within the structure of the assembly that could actually monitor what the government was doing, have access to the information it needs to do so, and see how the government is performing against its obligations, against its commitments about what it’s supposed to be doing, and then not just take that information and sit with it or complain about it, but then work out what actions should the government be taking. So the role of that accountability mechanism is to provide recommendations about what should be improved and enhanced in the State to address those things.

Charles:

And that’s the key word, it’s the State. As bearing in mind, closing the gap affects four levels of government, which is federal, state, territory, and local. All the assembly can really do at this stage realistically is just Victorian state level. What implications can it have on local government, do you see? Because this must have been considered.

Rueben:

Yeah, so there won’t be a direct interplay between local government and the work of this first statewide treaty.

Charles:

Right.

Rueben:

But the element of accountability applies to anything the State is funding. From our perspective, that’s our aspiration. So if the state is contracting out its work to someone else to deliver it, we want to make sure that that’s being accountable as well, so that can have that flow on effect.

Charles:

Now, one of the central tenets of the new national agreement signed 2020 was shared access to data and information at a regional level. Well, let’s just say shared access to data. Is that something that’s been held back from First Nations before in Victoria when it comes to measuring the success or otherwise of closing the gap?

Rueben:

Yeah, I think there’s a couple of parts to that. I’ll just touch on the success aspect first.

Charles:

sure.

Rueben:

Because I think that when we’re looking at this accountability mechanism, we want to be assessing the government against success measures that we get to set as a community, not the government’s definition of what success looks like, because often, we know that can be very different from what our definition of success is. So that’s a key component of that accountability mechanism to be able to develop our own measures of success. And then access to data is key, and often we find that the data we’re able to assess and look at is much further down the track, then it’s no longer relevant data or it’s not the data at a granular enough level that we can actually do something about it. So it’s our aspiration through the treaty making process that we can access better data so we can actually use that to make better decisions and get better outcomes.

Charles:

So this is data that already exists?

Rueben:

Yeah, most circumstances what we’re talking about is data that already exists and that may well become public at some point in time, but we want to be able to ensure that an accountability mechanism can access that data at appropriate times to be able to inform the decision-making and the recommendations.

Charles:

Now, you said that you’re not prepared to talk about how the government’s being reactive or what moves they’re making in these negotiations, but can we get an idea of the reactions that you’re getting from the government as you’re bringing up a lot of these key points?

Rueben:

Yeah, I think when we have these conversations, we’re bound by the principle of good faith is one of the key undertakings.

Charles:

Sure.

Rueben:

And in all the conversations I’ve had with representatives of the state, various different levels, there has been that aspect of good faith. We are trying to come to the table to get shared collective outcomes, and so nothing is dismissed out of hands. Definitely been the case. There’s always consideration of, well, why is that your interest? How might we be able to have conversations? What is the interest of the State? What might be the stopping points from their perspective, and how can we collectively work through those things is the approach? It’s not a case of we might put up an idea and they just say, “No, we’re never going to do that,” and we have to go back in our shell. That’s not how it works from our perspective,

Charles:

When you first met with the government to start this process in January and came up with these core principles for the first iteration of the treaty, there was also a line there that said that other points may be brought up by mutual consent. Has there been anything of particular note that has been brought up that was unexpected from either side?

Rueben:

No, I wouldn’t say so, but we are still working through what additional subject matters might come to the table.

Charles:

Given that it’s June, we’re five, six months into negotiations, where are we at when it comes to an achievable treaty by the end of the calendar year? Because I realise that that’s the best we can get from timelines.

Rueben:

Yeah, I think from my perspective it’s important to note that the six months has been since we formally began negotiations.

Charles:

Sure.

Rueben:

But there was a lot of substantial work that happened before that to be able to agree to the subject matters. We didn’t just add stuff onto the list of subject matters on a whim. It was things that were added to the subject matter based on realist expectations from both parties about what we might be able to achieve, and that was also based on the subject matters identified within the treaty negotiation framework that was agreed several years before that. So I think it is really important to recognise that these conversations about these types of things, whilst the formal negotiations on them began back in November, the conversations have been happening for a long time now, and for that reason, I do have confidence that we’ll be able to progress through those things. I still have hope from my perspective that we’ll get to resolutions. Well, the government has sent hopefully by the end of the financial year, I hope by the end of this year.

Charles:

When you’re saying by the end of this year, you’re saying you’re hoping for a signed treaty by the end of the year, is that right?

Rueben:

That is my aspiration.

Charles:

Is that also the government’s aspiration or are you not allowed to talk about that?

Rueben:

You’d have to ask the government their aspirations.

Charles:

I’m sure we’ll get the opportunity.

Rueben:

But the minister has said that their hope is to have things finalised by the end of the financial year next year.

Charles:

What about the load on the staff here? Because I realise that more and more staff or members have been brought on full time to help with negotiations and we’re not prepared to name names right now, but just how much work is being involved in these negotiations? Because I believe it’s weekly meetings with the government or government representations, isn’t it?

Rueben:

Yeah, it’s at least weekly meetings. There’s some ebbs and flows within that, but yeah, there’s a lot of work happening behind the scenes and we don’t just have our negotiation sessions here in the office in Collingwood. We also have been going out to the regions. We have a negotiation session out at the Advancement League. We had a regional negotiation out in Portland and just this week we had the negotiation down on Djaara country in Bendigo.

Charles:

That’s quite appropriate given that Djaara is, of course, the first traditional owner group to announce that it’s ready to enter into treaty negotiations. Reuben, what about challenges? We’ll get onto some of these other core principles to be discussed in a short while, but what are some of the key challenges that the negotiating team or the assembly as a whole has faced when it comes to this process with the government?

Rueben:

I think one of the key challenges is just trying to manage the expectations across the board. The expectations of our community about what we’re trying to achieve, the expectations of members, the expectations of the State, the expectations of the broader community. That’s a lot of expectations to try and manage, and so that’s been one of the challenges to try and have realistic aspirations about what we’re trying to achieve, but also make sure we’re not diminishing those broader aspirations we might also have. That’s a significant challenge to find that balance.

Charles:

So the broader aspirations, which are beyond this first round of discussions, obviously, has there been much dissent from within the Aboriginal community that your members have been communicating with about the fact that a lot of the things that they wanted to see in a treaty real soon, now, simply aren’t going to be happening by the end of this calendar year?

Rueben:

I think when we have the conversation about what’s possible and the timeframe that we’re talking about and that we’re trying to set the foundation for future conversations, also the fact that there are traditional new treaties happening in parallel. A lot of the things that I think people most think about when they think about treaty are more related to that traditional owner treaty process. So when we have those broader conversations, from my experience, there’s good strong understanding about the rationale. People might still have different ideas, but they can understand the rationale about how we’re trying to do things.

Charles:

So you’re talking about things like care for water, care for country, all those sorts of things, yeah?

Rueben:

Those sorts of things. When you talk about access to land for traditional owners, our water rights, those sorts of things, those are very much more in the domain of traditional owner treaties, than things we’re contemplating for this first statewide treaty.

Charles:

Let’s get back to one of the first focus points, and that was evolving the assembly into an ongoing First People’s Representative body. Where’s that right now and how’s that progressing

Rueben:

From the assembly perspective, we’ve made some really strong considerations about the different elements. We want to be part of that, and we’re starting to really share more of that detail with our community, so happy to unpack some of that detail around our aspirations for that future body.

Charles:

That’d be great.

Rueben:

So you talk about it as a representative body. So one of those key aspects is actually making representations to the government. So our aspirations are that this future body, the future assembly, will be able to actually address the Parliament once a year, to actually have our representatives stand there and talk to the parliament about things that we think they need to hear about First Peoples. So as well as address the whole parliament, we want to be able to have a body that can talk to cabinet with all the ministers come together, to do that twice a year. And we also want to be able to have ways we can bring together ministers, heads of departments to talk about what’s working, what’s not working, in terms of first peoples in the State. And so having that level of representation at the highest level is a really powerful thing, and some of those things are possible to happen now, but they’re happening on the whims of the government might think like it’s a good idea.

Charles:

Sure.

Rueben:

We’re trying to ensure that through treaty that this future body future assembly is recognised as the body that does undertake those functions and it’s built into the fabric of how the State operates to have that representation.

Charles:

So embedded within the system itself.

Rueben:

Exactly.

Charles:

So you’re not talking about reserved seats in Parliament, either the upper or the lower house, I would assume, but a separate body itself.

Rueben:

That’s right. A separate body that can make those representations and have those direct engagements with Parliament and with members of the politics and heads of departments, as well.

Charles:

Rueben, you mentioned that there was another consideration when it came to accountability for assembly 3.0.

Rueben:

Yeah, so we’ve spoken about all the different powers and functions we hope to have for that future body, and we’re very mindful that if there are enhanced powers and functions for that future body, that needs to go hand in hand with enhanced oversight of that body. So we’re making sure that from our perspective, we can put in place various different mechanisms to make sure that this future assembly is answerable to its community about what it’s doing. So it will still, of course, have the democratic process to actually elect the members. That’s the foundational way, which it’s accountable, but we’ll be looking at other models where there’s participatory governance models, so there’ll be obligations on this future body to go out and talk to community about how it does its business and to develop processes when it makes decisions about certain things, it has to follow certain processes to be able to do so.

There’ll also be public reporting requirements on this future body, and the future body will be actually subject to IBAC and the ombudsman in terms of oversight. That’s our aspiration to make sure that yes, it will have increased powers and functions, but it will also have increased answerability responsibilities to community to make sure it’s doing the right thing.

Charles:

So that’s going to definitely give a measure of confidence to the broader community when it comes to these powerful Aboriginal people being able to influence government, I’m sure. Now this is put forward or we’re led to believe that this is an evolution of the First People Assembly Victoria. Do you still see it as an evolution of the assembly or is it an adjunct body?

Rueben:

No, it’s definitely from our perspective, an evolution of the assembly. When I think about the timeframes of what we’re talking about, that this term of the assembly will finish, it’s due to a finish in June next year, and when there are the next set of elections, it’s our aspiration that those are for the future body, and so that will be the future body that is the assembly.

Charles:

So that body which would have that representative power to meet with the cabinet, to meet with parliament, they would also be charged with negotiating the next iteration of statewide treaty, as well, because this is just, as we’ve mentioned before, the very first iteration, it’s going to be an ongoing thing. You’ve said time and time again, you want treaty to be part of the Victorian, if not Australian, lexicon. This is going to be an ongoing thing.

Rueben:

Yes, absolutely. That’s the role of that future body is also, then, to take up that role of negotiating future statewide treaties.

Charles:

It does bring up the question then of non-Victoria international owners, and you and I have discussed this many times over the years. How about a bit of an update on that?

Rueben:

Yeah, so it’s been identified by the assembly, by the members, that it is really important to be able to have that advice and input and direct engagement with First Peoples here in Victoria who are not traditional owners from here in Victoria. And so we’re going through a process more broadly around the different mechanisms that will need to be in place for this future body. And the Treaty for All group is what we’re referring to it as, based on the wonderful panel that you were part of at the MCG a little while back, it sits alongside other mechanisms we’re also looking to put in place, in terms of how we connect with the Aboriginal community controlled Organisations, how we connect with traditional owner organisations, and then also then, how do we connect with First Peoples who are not from here in Victoria.

Charles:

So realistically, we are looking at this round about June next year for that assembly 3.0, if you will.

Rueben:

That’s our aspiration.

Charles:

Okay, that’s fine. How has the government been reacting to that when you’ve actually come forward and said, “These are our aspirations, that we want to be able to have assembly 3.0,” we’ll keep using that term, “to be able to address Cabinet, to be able to address Parliament once a year.” Has there been much pushback on that?

Rueben:

Again, I’m not at liberty to explain what the State’s position are on things. You would need to talk to them about that.

Charles:

Okay. Let’s look at that.

Rueben:

There are other elements of the body that I can talk to you about, as well, if you’d like.

Charles:

Please. We’ve got as much time as you need.

Rueben:

So that was the representative functions of that future body. We also have aspirations that the future assembly will be able to have what we refer to as lawmaking or rulemaking powers. So it’s a body that the State can recognise is capable of making certain rules that relate to First Peoples.

Charles:

This is the transfer of power that you’ve been talking about for years.

Rueben:

That’s correct.

Charles:

One of the key aspirations of treaty.

Rueben:

That’s correct. And so there’s two parts to it. There’s the State recognising that it’s a body that is capable of doing such things, and then there’s actually having tangible examples to begin with. So from our perspective, we would really love to be able to see through this first statewide treaty that when we look at things like confirmation of originality, we know that there’s a three-part test, a Commonwealth three-part test. The third prong of that is around acceptance of your identity by the community in which you live. Now the processes that are undertaken around that are many and varied.

Charles:

They are.

Rueben:

So we would like to see the assembly be able to establish what those processes should look like to show that you actually have that confirmation from your community. The treaty itself isn’t intended to specify that. The treaty’s intended to say, from our perspective, that the future body should be responsible for determining those processes. And then we’ll need to go through the long hard work of working with our community about what should a process that leads to that confirmation look like, but then we’ll be able to put in place that process.

Charles:

Does that run the risk though of having the assembly or a state overpower something that’s been handed down by the Commonwealth?

Rueben:

No, it’s really about implementing that third prong. So it’s not disputing the third prong. It’s saying, so there’s three components. There’s the, you’re of Aboriginal or Torres Strait Islander descent, that you identify as such and you’re accepted by your community. It’s just that last element we’re saying, “Well, how do you demonstrate acceptance by your community?” We intend to develop a process to define what that should look like.

Charles:

Let me ask a stupid question. Why is that so important?

Rueben:

It’s something-

Charles:

We know the answer.

Rueben:

It’s been raised by many, many communities across lots of places that you need to have a better understanding of who’s identifying and to do it properly. And it’s been something in particular that the Quarry Justice Forum, the caucus, have talked about often. And so we intend to work with them about the processes they’ve already been looking into to strengthen that work.

Charles:

Do you expect, and I know we’re going off on a slight tangent here, but pardon me if you will, but do you expect that that will bring an end to a lot of these kibosh Aboriginal people that are identifying, taking the benefits of what benefits there are, because there ain’t a hell of a lot, let’s be frank, and then disappearing into the night?

Rueben:

We definitely hope it’s a process that enables First Peoples to be properly identified within that.

Charles:

Okay, let’s keep exploring some other areas in which the assembly will, or assembly 3.0 will, prove itself.

Rueben:

So these are our aspirations, again, that we’ve got. One is also around appointment powers. So we know that currently within the state-

Charles:

We’ve spoken about this time and time again.

Rueben:

That’s right. There are various roles within water boards or different corporations where the State appoints, with good reason, and it’s good that they’ve done this. They want people of Aboriginal and Torres Strait Islander descent to fill those roles, and it’s our belief that if they are after such things, that it should be the representative body that oversees that process for that selection. And so we’re again, wanting to establish the body is capable of doing such a thing. And then as a starting point, we want to look from our perspective, we would hope to be able to have the members of the Victorian Aboriginal Heritage Council rather than be appointed by the minister, that they get appointed by the representative body.

In saying that the Aboriginal Heritage Council already goes through its own processes to determine who it would like to have as its representatives, and then it’s essentially ticked off by the minister. We just want to take over that tick-off method so it’s no longer the minister involved at all. It’s a completely First Peoples led process for who is on the Victorian Aboriginal Heritage Council.

Charles:

And do you expect this to be right across the board? So any instance where the Victorian government is given the power to appoint Aboriginal people to boards or councils, whatever, that it’s now taken on by this new evolved assembly.

Rueben:

So that’s a longer term aspiration from our perspective.

Charles:

Sure.

Rueben:

So we’re just laying the groundwork for that to be possible by having the body recognised of being capable of it, specifying some specific ones to start with. And then over time, we’ll look to that, as well.

Charles:

Give us a couple of the real benefits to the community and to the organisations themselves as a result of this.

Rueben:

Yeah. Well, I think for a long time now, the Victorian Aboriginal Heritage Council have done a fantastic job in the work that they’re doing.

Charles:

Absolutely.

Rueben:

But there’s always been this kind of thing that shadow that hangs over them that they’re appointed by the minister.

Charles:

Always brought up by the conservative media now and then.

Rueben:

That’s right. And so when we’re talking about self-determination, a key part of that is the decision making being made by our First Peoples, not finally ticked off by someone else. So this enabled us to truly enact self-determination through that process is ensure that from our perspective, we are getting who we think are the best experts into those spaces rather than who the government thinks are the best people.

Charles:

There are obviously a heck of a lot of aspirations in this future body. What are some of the other key ones?

Rueben:

So another one, we spoke about that accountability component for standalone mechanism. We also want to make sure that more broadly, this body can be holding government accountable to make sure that they are doing the right thing.

Charles:

So how does that actually come about?

Rueben:

Yeah, so what we’d want to be able to have is engagement hearings where we can say, actually, we would like to have certain ministers, certain head of departments to come and have a discussion about what’s working, what’s not working, and that would be led by the representative body rather than the standalone accountability mechanism.

Charles:

This smacks very much of requiring legislation, all these sorts of things. When we’re talking about the aspiration of having the first iteration of a treaty done by the end of the calendar year, does that take into account the legislation passage requirements, as well, or are we pushing it a bit further for these particular requirements?

Rueben:

It’s probably too tricky to talk about the full pragmatics of all that.

Charles:

Sure.

Rueben:

But we’re definitely mindful of those necessities at some point in time.

Charles:

Really brings up the question then of bipartisan support. That’s something that’s been dogging treaty and truth telling right across this country. And we are aware, of course, that there’s not that bipartisan support even in Victoria right now. I’m aware that you and your fellow co-chair, Nagara Murray, are or have been in conversation with the members of the opposition, in fact, all political parties here in Victoria. What are some of the feelings that you’re coming away with when you’re talking about these sorts of aspirations?

Rueben:

When the opposition did come out and changed their position around the supportive treaty, which as you said was quite disappointing given there had been that bipartisan support for the true previous other pieces of legislation that had gone through, some of the arguments that they seemed to make was that they didn’t know enough about it. What actually is it? So we’re hopeful now that we have more of the detail to be able to talk about our aspirations, that we can open up that dialogue and they can better understand what it is and make an assessment on its merits.

Charles:

Hasn’t really answered the question though, Rueben, of what sort of feeling are you walking your way with from those conversations?

Rueben:

They haven’t changed their mind straight away. If that’s what you want to ask?

Charles:

Well, that would be too nice to ask for really. But do you find that they are open to at least entertaining these considerations and thoughts?

Rueben:

I’d like to think so. We having the conversation. They’re keen to sit and meet with us, and we’re keen to sit and continue to have those conversations. And from our perspective, at no point in time will we intend to close the door on any party to want to come and be having conversations with us.

Charles:

Rueben, I want to just address a couple of questions right now just before we close off that have come in from the non-Aboriginal community to me and a lot of the work that we do on Treaty. And the first one that I get, look, whilst I can answer this to people, it really would be good to have you answer them. The first one is, isn’t one Treaty enough? Why have both statewide and local traditional owner treaties? The textbook answer for that is?

Rueben:

Well, there are different things that you can achieve at those different levels. So for the statewide Treaty, we’re looking at statewide reform that affects all First Peoples across the whole state. And for traditional owner groups, they’re looking at particular aspirations they might have at a local level.

Charles:

And the next one is, and this is the closing one, will the broader non-Aboriginal community have a say in anything to do with local or statewide treaties? And I suppose that really without feeding you an answer or trying to influence your answer, brings in the issue of, well, everyone can always access their local Councillors or their local members of parliament. But the question is, will the community have a say in Treaty?

Rueben:

So as I understand it, the state government is currently running different forums across the whole state in different regions to actually go out and talk to the broader community about what is happening through the Treaty process so there’s a clear way to engage on that space. And then, as you say, ultimately, if it’s going to come down to a political decision, people in the community have access to go and talk to their local members of Parliament and ask them about their aspirations for Treaty.

Charles:

Rueben Berg, until next time, thanks so much.

Rueben:

My pleasure.