Charles Pakana:
As treaty legislation winds its way through the Victorian parliamentary process, much of Victoria is watching and waiting. While we watch and wait, it’s important that Victorians, all Victorians and the broader Australian community gains an understanding of what is being proposed in the treaty legislation, and particularly the first statewide treaty that will subsequently be signed.
Joining me for a deep dive into this is Gunditjmara man and Co-Chair of the First Peoples’ Assembly of Victoria, Rueben Berg. Rueben, once again, welcome back to the program.
Rueben Berg:
My pleasure as always.
Charles:
Rueben, let’s just get an understanding of the difference between the treaty and the legislation. We’re talking about 30 pages as opposed to about 300 pages.
Rueben:
Yeah, that’s right. So the way I think of it is that the treaty is the overarching agreement between First Peoples and the state, and that talks about what this first statewide treaty is about. And one of those things that it’s about is this bill-
Charles:
Yeah.
Rueben:
… is the legislation. And so the bill is almost an attachment to the treaty. It’s an enactment of parts of the treaty. But to my mind, the treaty is the overarching document and the bill is about implementing some key parts, a majority of it, but some key parts of that treaty. The legislation is the implementation.
Charles:
So, giving it the legalese, if you will?
Rueben:
That’s right.
Charles:
Okay. So let’s look into what the core purpose of the Victorian Treaty is, this first statewide treaty and what it underpins. So what problem is it fundamentally trying to solve, bearing in mind we’re taking this from the base level, right all the way through.
Rueben:
Yeah, at its heart, from my perspective, this first statewide treaty is about resetting the relationship between First Peoples and the state, and creating mechanisms and tools to enable that resetting up that relationship and creating a treaty infrastructure, the Gellung Warl as a means that across future generations can continue to build in that resetting of that relationship.
Charles:
And we will dive into Gellung Warl and its various components, three components, I believe, a little bit later on, but not very far away. The thing that I found of particular interest was that almost a third of the treaty itself was given over to, “Here’s the situation and here’s the historical perspective.” How important was that to the assembly in developing and putting forward this document?
Rueben:
Yeah, that was critically important, that preamble and that history component of it, and that was why we established the Yoorrook Truth and Justice process. We advocated for that many years ago. And so it was important to honor that because that has always been framed as the why of treaty. And so it was really important to make sure that within the actual first statewide treaty, it referenced that history and that why.
Charles:
So, everything from the legislation that’s currently before Parliament and the subsequent treaty that we certainly hope will be enacted, the main focus is on Gellung Warl, which is that key body that represents the political aspirations of Victorian Aboriginal people and its three components, including the First Peoples’ Assembly of Victoria.
Just run briefly through each of those three components, then we’ll deep dive into each of those.
Rueben:
Yeah. So the three key components, and there’s scope for other components as well, but the three key components of the Gellung Warl is the First Peoples’ Assembly of Victoria. That’s an ongoing version, essentially of the current First Peoples’ Assembly.
Charles:
Yep.
Rueben:
Democratically elected group of First Peoples to be able to oversee and make decisions in this space of Gellung Warl. Then you’ve got the Nginma Ngainga Wara, and that’s the independent First Peoples-led accountability mechanism to monitor government’s progress around closing the gap around Yoorrook, all those sorts of activities and make sure they’re doing what they’re supposed to be doing. And then there’s the Nyerna Yoorrook Telkuna, which is the ongoing truth-telling component.
Charles:
And we will dive into each of those. Now, one of the key things that I’ve found of particular interest was that the assembly is going to be empowered to make substantive rules that affect First Peoples. Can you provide an example of a substantive rule that the assembly might make, and its practical impact?
Rueben:
Yeah. So the key substantive rule that is there as kind of a pilot, I guess, essentially because it’s not intended that it’s the only substantive rule that sits with the future assembly, but the one that is there as part of this initial process is around the confirmation of Aboriginality processes. And this has been something identified by our community for many, many years now, that it wasn’t quite working as we would hope it to work, and there’s no better place to resolve this than a group of First Peoples to lead those conversations.
So, the treaty and the bill itself, importantly don’t specify what that looks like, what resolving that looks like. It really just says and recognizes that there is this three-part test that the Commonwealth government has around whether you are of Aboriginal or Torres Strait Islander descent, that you identify as an Aboriginal or Torres Strait Islander person, and you’re accepted as such by the community in which you live.
It recognizes, there is that test. And then it focuses on that third one and says, “Well, when you talk about accepted by your community, what’s the process for doing that?”
Charles:
Yeah.
Rueben:
And so this enables the future assembly to work with our community, to come up with rules and regulations around how we should be providing those certificates, how organizations should provide them, who shouldn’t provide them, who should provide them, and then that will give us greater comfort when we’re talking about those three components, that that third one, there’s been a rigorous process that’s led by First Peoples to know what that should look like, to get that confirmation.
Charles:
So this enables us to start myth-busting right at the start here, and that’s a myth that’s perpetrating within mob itself, and that is that the assembly is seeking to take all certification of Aboriginality upon themselves, but it’s not that case, is it?
Rueben:
No, we’re talking about the process.
Charles:
Yeah.
Rueben:
That’s what we’re looking to take control of, and we’ll be able to have control of through this legislation, and that involves working with traditional owner organizations who provide those, other organizations who provide those to say, “What’s a consistent process we want to have? How do we want to do this collectively to make sure we do have confidence in that process?”
Charles:
What have been some of the main concerns that have been coming up from community that led to this being such an important part of the treaty?
Rueben:
Yeah. Well, I think there’s often seen that there’s some rogue elements out there that are just providing those certificates willy-nilly.
Charles:
Yeah.
Rueben:
Just, “Can I please have one?” and you get one. That’s been raised as a significant concern, and just to make sure that there’s that consistency around that process. And particularly from the Aboriginal Justice Caucus, they’ve been looking into this for quite some time now.
Charles:
They have indeed, yes. So, the process for drafting and approving these substantive rules, ensuring they reflect the diverse voices and law of First Peoples across Victoria, how do you imagine that that will be coming into place?
Rueben:
Yeah, so there’s pretty specific provisions within the bill around how the future assembly can go about putting in place those substantive rules. It’s not just a case of the 33 members, for example, who are elected, going off into a room and all of a sudden here comes the rules. There are strict requirements about a community answerability framework.
Charles:
Yeah.
Rueben:
So not just the engagement on the actual decision around the confirmation of Aboriginality, but engagement around engagement. Talking to community about what types of decisions do community need to be involved with, hands-on? What types of decisions is it okay for the elected members to just go away and make their decisions? And to be really clear about that, design that process with our community. That’s what that answerability framework’s about.
Charles:
Let’s get a bit more an understanding before we deep dive more into each of the three components. Gellung Warl itself, now, is it a name? Is it an organization? How do you envisage it’s actually going to be operating given you’ve got these three independently operating organizations under its umbrella?
Rueben:
Yeah. For me, I kind of see the Gellung Warl as the cleared landscape. So we’ve got colonization coming and taken over our lands-
Charles:
Yeah.
Rueben:
… and concreted lots of things, and the Gellung Warl is a way of stripping that back and saying, “Well, this is our treaty landscape.” And within that sits the First Peoples’ Assembly. Within that landscape sits the Nginma Ngainga Wara. Within that sits the Nyerna Yoorrook Telkuna. It’s that cleared landscape of which our self-determination can sit.
Charles:
So it’s not necessarily an organization in its own right?
Rueben:
It is an overarching entity-
Charles:
Right.
Rueben:
… under the legislation, but it’s operated primarily through the First Peoples’ Assembly of Victoria.
Charles:
So let’s then dive into the First Peoples’ Assembly of Victoria. That’s the organization with which most people are aware, one would hope. Do you see any significant differences to the way in which it’ll operate compared to how it’s been operating for the past six, seven years?
Rueben:
I guess, yes and no would be the answer to that.
Charles:
Well, let’s go with yes first.
Rueben:
Well, yes, it’s still a democratically elected group of traditional owners from all across Victoria chosen from the different regions with those recognized Aboriginal organizations getting to choose their representatives as well.
Charles:
So, still five regions as has always been the case?
Rueben:
Five regions and then the scope as well, like we have now for the First Peoples’ Assembly to recognize additional groups, traditional owner groups. So it’s not just fixed on the Native title system, the Traditional Owner Settlement Act, or the Registered Aboriginal Party process, like we did with Wamba Wamba when we recognize them. There’s still scope for that to happen within that future body as well.
So, a democratically elected group of traditional owners accountable to their community, representing our community.
Charles:
And what about changes? How will it be different?
Rueben:
Well, the first six years of the First Peoples’ Assembly of Victoria have been focused on a process for treaty-making and actually negotiating treaty. Now we’re onto something quite different, which is actually activating the powers and the responsibilities and functions we’ve achieved through treaty.
Charles:
But still there’s going to be negotiating treaty because it stipulates in the treaty and in the legislation that this is the first, and it goes to pains to almost point that out so people understand that. There’s obviously going to be a huge part of the Assembly 3.0 and beyond’s work devoted to future treaty negotiation.
Rueben:
That’s correct. That continues to be one of the roles and functions of the First Peoples’ Assembly, but that’s alongside all the representation roles, the appointment powers, the rulemaking powers that sit within that body as well.
Charles:
So the appointment powers, the rulemaking powers. Let’s go to appointment powers and also, the assumption of responsibility of a lot of what’s going on in the Department of Premier and Cabinet. For example, the Victorian Honour Roll and the place naming, let’s talk about those. So that’s going to be a part of the Assembly or Gellung Warl?
Rueben:
Yeah, so that responsibility will sit with the First Peoples’ Assembly.
Charles:
And specifically, we’re talking about the Victorian Honour Roll. Explain the rationale why.
Rueben:
Yeah, well we saw that the government has a whole lot of responsibilities where essentially, the minister for First Peoples is making a variety of decisions on behalf of First Peoples, and we don’t really think that’s the role of a minister for First Peoples who was not chosen by our people, elected within her electorate at the moment, and then chosen by the government to be that member.
We don’t think it’s right that, that sort of responsibility sits with the minister for First Peoples as chosen by the state. We think those sorts of responsibilities are much better placed with a democratically elected group of First Peoples, but essentially still as the final decision-maker, the tick-off process. We think there’s really good, strong, robust processes that exist.
We’re not necessarily saying they have to disappear. I think we can work with our community to say what’s working, what’s not working within our current processes around all those different components, and self-determine how we want to enhance and improve those things.
Charles:
So just for people who may not understand what the Victorian Aboriginal Honour Roll actually is, give us a bit of a base level of what that honor roll is, some of the people, some of the amazing people who’ve been honored in that roll, and how it can be improved.
Rueben:
Yeah. So the Victorian Aboriginal Honour Roll has been around for a little while now. And it’s, I guess, an expansion of what the Victorian government already had with an honor roll that honors the community more broadly, but this was a dedicated roll, particularly for First Peoples, to acknowledge First Peoples within our community.
I was very fortunate to have attended some of those ceremonies where we’ve celebrated our remarkable leaders across both, current leaders and then leaders from our past as well get honored, which is really, really powerful. And I don’t think we’re necessarily saying there were flaws in the process before, we’re just saying that, that should be a process where First People should be leading it rather than the minister for First People.
Charles:
Now the actual mechanics of it, going forward, once it’s taken over by the First Peoples’ Assembly of Victoria, I would assume that that’s going to be left to Assembly 3.0. That’s beyond the scope of the current assembly, or is work already being done?
Rueben:
No. So, all the actual implementation of these things will sit with the future assembly.
Charles:
Right. Okay.
Rueben:
That’s really important because us as elected members now, we’ve been elected to negotiate statewide treaty. We haven’t been elected to actually fill functions and roles that exist because of that, and that’s really important from our perspective.
Charles:
What other additional roles do you see the First Peoples taking, or the First Peoples’ Assembly taking on in 3.0, which is going to be mid-next year?
Rueben:
That’s right. So the election process will happen early next year with the new members being put into place by the 1st of May, and then all the kind of functions, formally and properly start from the 1st of July next year. And so there’s a raft of things that have already been identified within the treaty and within the bill, and to my mind, they are starting points.
What I find really exciting about this whole thing is the idea that we’ve now created a mechanism where the government can see that if they do really want to enact self-determination, I think a lot of what’s held them back in the past is they’ve still had regulatory requirements. They’ve still had to follow their, you know, financial management act that could never actually fully release their power and authority to First Peoples.
Charles:
Yeah.
Rueben:
We now have a mechanism to do that. We have a statutory body completely led by First Peoples that over time can have additional roles and functions handed over to it. That’s what I find most exciting about this idea, is that it’s a mechanism for future change as well. It’s not just about what we’re changing here and now.
Charles:
These future changes though, can they be negotiated under treaty, or do they need to go to legislation, or is it dependent upon what’s actually being asked?
Rueben:
Yeah, it’d be very dependent on the different circumstances, but we’ve ensured that through this process, there’s as much flexibility as possible.
Charles:
Right.
Rueben:
So if changes can be made just by an agreement between the Gellung Warl and the state, we can do that. If changes require a treaty between the Gellung Warl and the state, we can do that. If it requires legislative change, we can advocate for that as well. There’s all those different options depending on the different circumstances we might come across in the future.
Charles:
Now before we leave off on the First Peoples’ Assembly and we head off to the other two areas, just confirming that the members, as you mentioned, will remain as traditional owners, as they should be. That’s the elected members, the 33, hopefully more in the future. So they will still be the traditional owners of Victoria?
Rueben:
That’s right.
Charles:
Okay. So let’s now go onto one of the other parts, which is the truth-telling monitoring, or the truth-telling, which is Nyerna Yoorrook Telkuna. So this is designed for ongoing non-judicial truth-telling. So how do you see that its approach will differ from, or complement the work already done by the Yoorrook Justice Commission?
Rueben:
Yeah, so it’s definitely intended to build off the powerful work of Yoorrook across their four years, and to enable, from my perspective, the ability for more place-based approaches to truth-telling. The one thing that was really powerful about Yoorrook’s approach was they broke it up into these themes.
Charles:
Yeah.
Rueben:
You know, we had land justice, we had children, all those different themes, and that was really powerful to get the kind of big picture. But I think there’s an opportunity now through Nyerna Yoorrook Telkuna to have more kind of place-based approaches so that rather than looking at all those different themes, we can say, “Well, in this place, what’s been the cumulative effect of all those different stories in those places, to enable all people living in those places to better understand that history from a First Peoples’ perspective?”
I think that’s a really powerful opportunity through this ongoing truth-telling.
Charles:
Do you see that it will also be charged with responsibility providing reports to the state government as well as the assembly, just as Yoorrook wants?
Rueben:
Yes, it will be through the First Peoples’ Assembly that it will do so-
Charles:
Yeah.
Rueben:
… but it will be looking at things that happened prior to Yoorrook, or impact of government policies from prior to Yoorrook. So it could still be things that people are experiencing today based on a policy of the state from prior to the implementation of Yoorrook. But it definitely has that lens of the past, and how the past is still impacting on us today. And so that’s a key role for that ongoing truth-telling.
Charles:
Do you think though that there is still space for themed-based truth-telling rather than just place-based because look, even though Yoorrook went on for four years, longest Royal Commission in Australia’s history, obviously there was still a lot that had to be covered? Points that need to be included in future treaties, especially when you start talking about housing and justice and education.
So apart from place-based truth-telling, what other key focus areas do you see in subject-specific truth-telling?
Rueben:
Well, I think a key is that when Yoorrook was starting to finish off, as the date became clear for everybody, they became inundated with people wanting to continue to come forward and tell their truths. They had all this time, but obviously, you know, you wait till the last moment, understandably sometimes. So we know there’s still people out there with those stories they want to share.
So it doesn’t matter what it might be about. If people want to come forward and share their truths about the impact of colonization, they’ll be able to do that through this process. It won’t have to fit within a particular frame set to do that. That will be up to the ongoing truth-telling process to provide those parameters, but ensure that people can continue to come forward and share their truths because we know there’s many truths out there still to be told.
Charles:
And in presenting this information to Parliament, let’s just get onto the component of the treaty which sees the Gellung Warl being able to address cabinet twice a year. What do you see being the key areas of discussion in those two very important and valuable presentations to cabinet every year?
Rueben:
I think this is where that community engagement framework’s going to be so critical, because we’re going to need to hear from our community, what are the messages we want to be giving in those settings, because it’s not every day you get a chance to sit down across the table from cabinet, from all the ministers within this state and tell them what the issues are from a First Peoples’ perspective.
So it’s going to be really important that the future assembly has a really good process about how it wants to do that, because it’s not only talking to cabinet twice a year, it’s also got the power to address both houses of parliament once a year. And that’s going to be a really powerful way of demonstrating to the broader community, what it is we’re bringing to this as the First Peoples’ Assembly, and through this Gellung Warl process, and what we want to make sure we see as achievements.
Charles:
While we’re talking about relationships with our politicians, I also want to dive into an interesting document or ensuant concept that’s come up in the legislation, and that is the statement of treaty compatibility that has to, or should accompany every single piece of legislation that’s put before the state government. Just talk a little bit about that.
Rueben:
Yeah, it’s been really interesting, kind of doing a deep dive into a lot of these processes that the government has and trying to work out, how do you influence it? How do you actually get the best outcomes?
And there’s a lot of kind of things that operate within government and within parliament that are kind of based on these conventions about how they go about doing things, and kind of the processes they have to undertake in their day-to-day business.
And what we tried to do through some of these different initiatives was to just embed First Peoples’ processes and considerations into all those different aspects of the conventions of the state, the conventions of parliament, the conventions of politicians so that our issues weren’t just some sort of afterthought that maybe they might think about, maybe they won’t, but they’re embedded into how they have to undertake their daily business. That’s the rationale behind making sure we had those statements of compatibility.
Charles:
So do you see that that’s also going to be a point of contention for the conservatives in there saying, “Well okay, you’re now bogging down legislation,” just as we saw this was an argument during 2023 with the Voice? How do you envisage that, that will be weaponized by the conservatives and the conservative media?
Rueben:
Yeah. Well, I mean, I haven’t seen any previous concerns that the Charter of Human Rights Compatibility has bogged things down, so I’m not sure why this would either.
Charles:
I think that’s probably the best argument. Rueben, one of the interesting points in the treaty and also, the legislation was the negotiation of an official apology to First Peoples of Victoria.
How do you see that’s going to come about and why is it so important, given that we’ve already had several apologies during Yoorrook and prior to that in federal government?
Rueben:
Yeah, so it was actually something that came from Yoorrook. Yoorrook had one of their recommendations from their second series of reports that said a key outcome was that there should be an official apology to First Peoples about the impact of colonization on First Peoples, and so we wanted to make sure we could implement that. And this first statewide treaty was a really powerful mechanism to be able to implement that.
I think we’ve seen in the past, those apologies can be really powerful moments to enable us to leave behind some of the pain and hurt. It doesn’t remove the pain and hurt, but enable us to move forward from that. And so this is an opportunity through this first statewide treaty to secure that apology. There’s a commitment now to that, and we’re hopeful to be able to secure that in the not-too-distant future.
Charles:
And when you say in the not-too-distant future, do you think in the life of this assembly or beyond?
Rueben:
That would be my hope, but we’ll see.
Charles:
Nginma Ngainga Wara, which is tasked with monitoring the elimination of institutional racism along with other things, what are some of the initial targets or metrics that this body will focus on to determine tangible progress in this complex area?
Rueben:
I don’t know. It’s going to be up to them. That’s a key part of this process has been not prejudging decisions of future bodies.
Charles:
But you must have had some aspiration, some thoughts on this. Must have been discussed around the table.
Rueben:
Yeah, I think it’s outlined in kind of the key areas that we expect Nginma Ngainga Wara to focus on, which is the closing the gap targets.
Charles:
Yep.
Rueben:
That’s obviously a key thing to actually monitor and get the information about, how is the government tracking against this? And not just at a high level, but to be able to see the data at a lower level, at a granular level, to actually pick up some of the trends the state might be missing to say, “Well, actually, we’ve noticed this, this, and this, and we think these are the right actions to address that.”
So, closing the gap is one of those keys areas. Obviously, the Yoorrook recommendations is another one, the implementation of those recommendations. That’s going to be really key to be able to monitor the government’s progress against those.
Charles:
Well, as we talk about the monitoring of government progress, there’s also the responsibility to hold individual ministers and the government to account. How do you see that actually working? Given that the assembly doesn’t really have power to stop the wheels of parliament in any way, just how impactful do you think it can be, and what are some of the courses of action you envisage should be taken to keep the bastards honest?
Rueben:
Yeah, so there is that ability for Nginma Ngainga Wara to have inquiries to say, “We’re hearing that this particular issue is substantial for our community, and we want to understand what the government’s doing about it, to talk to the relevant ministers, to talk to the relevant departments,” and it’s going to be relational as much as anything.
And I think part of the premise is the expectation that the government does want to improve on things. That’s part of the premise here, is that the government wants to get better outcomes for First Peoples.
Charles:
That’s this current government.
Rueben:
Any government.
Charles:
Okay.
Rueben:
Any government wants to get better outcomes for First Peoples.
Charles:
Sure.
Rueben:
The opposition talk about closing the gap as well, but we’ve just seen again and again that government leading the process, they don’t get the right outcomes. And so this is a way to ensure that First Peoples can influence that process and make sure that we are getting better outcomes.
And so it is based on that premise that government does want to improve things for First Peoples, and provides a mechanism about how to get that expertise directly from First Peoples.
Charles:
This is essentially, a Voice to Victorian Parliament, isn’t it?
Rueben:
There are definitely components that are the same to what was proposed in the Voice to Parliament, yeah.
Charles:
What are some of the, and we will dive into it, compromises that you’ve had to make, you and the assembly have had to make in negotiating this treaty? Some of the things that you’d put on the table and you unwillingly had to let go by.
Rueben:
I think it really comes down to the scope of what we thought might be possible within this first statewide treaty. And also, really importantly, recognizing that we’re having this conversation about the statewide treaty in parallel with traditional owner treaties, because I think often when people think about treaty and what we’ve been singing about for treaty is about land rights, it’s about water rights, it’s about culture. And those are things we’ve always been very mindful, and not the domain of statewide treaty necessarily. That’s the work of traditional owners to advocate for.
So in a way, I think sometimes if people haven’t been, you know, following along with the work of the assembly and the work of treaty, they might say, “Well, where is all that stuff?” And there’s a good reason why it’s not there. It’s because that’s the domain of traditional owner treaties.
And then there are the larger aspirations we might have had about broader reforms. Particularly around the justice system, when you look at the outcomes of the Yoorrook’s first recommendations, there were sweeping reforms that were suggested through that. That’s not something we’ve been able to achieve in this first statewide treaty, but we’re looking at the mechanisms to enable those conversations to continue.
Charles:
But what about specific compromises, because obviously those key areas, such as justice, housing, education, health, that was, from my understanding, always predestined to be in treaties two, three, four, and subsequent. Was there anything in this current treaty that you really felt should have been included, but just couldn’t make it in?
Rueben:
If we looked at what the strategy was for this first statewide treaty-
Charles:
Yeah.
Rueben:
… noting the timeframes we were operating within, I would say for me personally, we have achieved everything we intended to achieve through this first statewide treaty.
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