Charles Pakana:
Give us a bit of an understanding of what actually went on around the negotiating table. Who was there? How long did it go for? What were the pressures being experienced?
Rueben Berg:
Yeah, so since the negotiations formally commenced in November last year, we would meet at least once a week, oftentimes multiple times a week. That’s directly between the Assembly’s negotiating team. We have five negotiators as well as our operation support. And then the state’s representatives, which included their public servants as well as is necessary, the Premier and the minister. We wouldn’t meet with the minister and the Premier every week. That was more of a special occasion. We’d sit down with them to have key conversations.
Charles:
Well, just before we move on then, how often did you meet with the minister and the Premier during the negotiation period?
Rueben:
I think we were meeting with the Premier every couple of months and the minister every month.
Charles:
And were there specific items on the agenda for those particular meetings?
Rueben:
Sometimes they’d be just general catch-ups and sometimes they’d be a particular topic that had kind of been escalated to say, well, I think we need to have this conversation directly with the Premier, or directly with the minister.
Charles:
All right. And we will talk about crossbenches and other politicians in a few minutes, but just get back to the situation around the table during the standard negotiations.
Rueben:
So I think both groups came to the table with their kind of brief about what they wanted to bring to the table, what they wanted to try and achieve. And a lot of times the conversation was about, okay, in this area, say for the ongoing truth-telling, these are our aspirations from an assembly perspective. Here’s the state’s kind of parameters about what they think might be possible. Where do those line up? Where do they not line up? And I always tried to take an interest-based approach to those conversations.
Charles:
Explain.
Rueben:
So when you talk about interest-based negotiations, it’s less about we are going to win and you’re going to lose, or vice versa. It’s more about what’s the underlying issue you are trying to achieve? What’s the underlying issue that they’re trying to achieve? And how can both things actually be met potentially?
And the classic example you have when you talk about interest-based negotiations is, here I am, I’m the dad, I’m at home, and my son comes up and says, “I want this orange,” and my daughter also wants the orange. And I go, “All right, well, I’m just going to chop the orange in half and you get half an orange each.” But then it turns out that my son just wanted to have an orange juice, just wanted to juice it and drink some orange juice. So he had a half cup of orange juice and my daughter just wanted the rind to be able to make a cake. So she’s then only got half a thing of cake.
Charles:
Okay.
Rueben:
If instead I’d said, “Okay, my son, why do you want the orange? What do you want to try and achieve with the orange?” He said, “I just want to be able to have some juice so I can drink because I’m thirsty.”
Charles:
Gotcha.
Rueben:
And my daughter had said, “I just want the skin so I can actually make a delicious cake.” Say, “Well, there’s no issue here at all. If we actually understand your underlying interests, we can meet both of those. So son, you can have all of the juice, my daughter, you can have the skin, and we’re all fine.” Both parties got to win out of that.
Charles:
So that interest-based approach that you went into negotiations with, was that shared by others around the table?
Rueben:
Yeah, I think that was a general principle we took into those conversations. Absolutely.
Charles:
And what about bringing culture and cultural respect into those negotiations? I’ve seen how it plays out with the Treaty Authority, for example. How did it come about in the treaty negotiations?
Rueben:
Yeah, so as part of the negotiations, when we would meet weekly, at least, Ngarra and I, either one of us would always be leading those conversations and we’d often kick off each discussion talking about something topical or something historical from a cultural perspective. So I recall one time that it was the anniversary of Cathy Freeman winning the 400 meters. We’d talk about that, and we might talk about it was a new season within the Wurundjeri perspective. So we made sure to bring that cultural element to the beginning of all of those meetings.
Charles:
And what about things such as a yarning stick, for example? Was that ever implemented?
Rueben:
Don’t think we went that formal in terms of passing around a message stick or things like that, but we always make sure we grounded the beginning of all those conversations with a cultural reflection.
Charles:
Were there ever any instances where there was angst and not aggression, but frustration around the table and how did you resolve those situations?
Rueben:
Oh, absolutely. There were times of frustration from all sides. So that’s what negotiations can be about. And often it was stepping back and thinking about what are the actual interests. As I said, it’s really about understanding what is it that we’re trying to achieve at its heart and not just a position of we want to achieve this, but why do we want to achieve it? What’s the underlying issue behind that? And similarly trying to unpack that from the state’s perspective to try and see where there was actually not a middle ground, but a way of achieving both of those things where they weren’t actually in conflict.
Charles:
Rueben, we’re just going to continue now, the bill aims to increase opportunities for traditional or language place names. So what’s the cultural significance of changing these names? And how will communities be involved in this process? And I’m talking First Nations communities and broader communities as well, just as they were with the change of Merri-Bek’s name, for example.
Rueben:
So as part of this first statewide treaty, we’re going to be able to see the assembly be considered a place naming authority, which elevates the status of First Peoples within that process, and enabled us to cut through some of the red tape. That doesn’t remove all the red tape, but at least puts some of that red tape in our control as First Peoples. And so importantly, it’s not just carte blanche to say, “Okay, well as soon as the bill passes, we can go and rename whatever we want.” It’s about streamlining that process, it’s about then working with the relevant communities that might be connected to those places, particularly the traditional owners if they’re the ones advocating for a traditional owner name. But having those conversations and then just streamlining that process to enable wherever possible, we can have those traditional names returned to key places within our landscape.
Charles:
But is it also communicating with the broader non-Aboriginal community because it impacts on them as well?
Rueben:
Yeah, so we are not bypassing the existing processes for place naming. That still exists. We’ve just got an enhanced role for First Peoples within that existing process.
Charles:
All right. Now one of the things that we didn’t touch on that I said we would a few minutes ago was your communication and relationships with other people outside the immediate government, the negotiators, and that is the crossbenchers and those in oppositions. How has that been playing out over the past several months or even years?
Rueben:
Yeah, well, I think as most people would know, there was bipartisan support for this process previously that included when the original treaty legislation passed and when the Treaty Authority legislation passed. We did have the support of-
Charles:
Because that’s as recent as 2022, isn’t it?
Rueben:
That’s correct. We have the support of the Liberals and the Nationals as part of that. Post the referendum that support ceased. We have had ongoing open dialogue to enable further discussions that haven’t been fruitful to this point in time. But in the meantime, we have had considerable conversations with other members of parliament. It’s not just Liberals and Labors. We’ve been talking with the members of the Greens who are understandably very supportive and publicly very supportive of the work we’re doing with Treaty. Also with the members of the Legalise Cannabis Party, and also the Animal Justice Party who we’ve got strong relationships with.
Charles:
And what about keeping them apprised of progressive negotiations prior to the announcement of the legislation and the treaty? How involved were they in this?
Rueben:
I wouldn’t say hugely involved, but definitely kept in the loop. I would arrange regular catch-ups to meet with members of those different crossbench parties and make sure they’re across and understanding what it was we were trying to achieve.
Charles:
Were many of them reaching out to you to ask for one-on-one meetings to better understand so they could represent it to their constituents and also to their fellow party members?
Rueben:
Yeah, absolutely. We had lots of interest, particularly from the Greens, as I said, wanting to reach out and have us involved to ensure that their constituency had a better understanding of where we were progressing with Treaty.
Charles:
I want to dive back now to truth-telling, and truth-telling in the Victorian curriculum, which was one of the key points of course laid out in the letters Patent for the Yoorrook Justice Commission. Now, truth-telling in the Victorian curriculum is highly anticipated. So how do you see that the Assembly will ensure that this curriculum is developed and delivered authentically utilizing, the Yoorrook public record, because that’s a huge role.
Rueben:
Yeah, it is, and it was a really powerful, tangible outcome we were able to secure through the statewide treaty was that ongoing truth-telling component within the Victorian curriculum and it is set out there within the treaty. So there’s a commitment already made in terms of that, and it also ensures that we need to work with our community experts around what that best process might look like to embed that.
Charles:
This is not going to be just an overnight thing. Oh, we’re just going to start embedding this into the curriculum. Obviously there’s going to be a special, I would assume a special body set up to oversee this. Would that be a fair assumption?
Rueben:
Well, there has to be a co-design process-
Charles:
Yeah.
Rueben:
Through Gellung Warl, the Victorian Curriculum and Assessment Authority and also the Victorian Aboriginal Education Association Incorporated. So there’ll be that kind of joint group coming together to try and work out how we’re going to co-design that. And yeah, it won’t just happen overnight, but it will be a really powerful outcome.
Charles:
When do you see this actually kicking off, assuming that we’re going to get Treaty in the next couple of months?
Rueben:
Well, the actual work of that has to be done by Gellung Warl and Gellung Warl won’t formally take shape until its new members are put in place.
Charles:
So the bill also mandates Victorian Public Sector Treaty principles. Now this is intended to establish a culturally capable workforce. So what immediate changes do you see that public sector employees will experience and how will this translate into a better service for First Peoples and subsequently all Victorians?
Rueben:
Yeah, so I think a lot of government departments already undertake a wide range of activities in terms of increasing their cultural understanding, sometimes more successfully than others, but oftentimes that’s really at the whims of those departments or the heads of those departments saying, yeah, that seems like a good idea. We’re making sure that now this is something that is required to be done as part of this process. And also ensuring that in terms of how leaders within that organisation, how their success is determined, a critical part of that is how well they’re ensuring their staff do have that understanding.
Charles:
Why is that so important to the treaty landscape?
Rueben:
Yeah, it was actually really key learning that came from talking to our brothers and sisters across the ditch in Alta Roa-
Charles:
All right.
Rueben:
That it’s all well and good to have the politicians and the ministers saying, yes, we want to see these changes, but unless you see that same sense of understanding within the public service, it can be very difficult to see that transition actually happen. So ensuring that public servants understand their role within the treaty landscape is a key way of avoiding that risk where at one level you’ve got people saying, yes, yes, we want to do this, but the people actually doing it aren’t implementing it.
Charles:
Victorian public service is inherently a huge organisation though, and steeped obviously by its very nature in bureaucracy. How do you envisage that the Assembly or Gellung Warl will oversee and guide this?
Rueben:
Yes, there’s definitely a role to make sure that how they’re implementing that is done in the right way, and that will be an ongoing role for the Gellung Warl and the members of the Assembly. And again, it’s really about that relationship and that’s what treaty is ultimately about, is about a relationship and this is a relationship at many, many different levels, and one of those levels is going to be between the future Assembly and the Gellung Warl and with the public service.
Charles:
Ruben, let me be really blunt because it seems that with all these additional responsibilities and involvements and relationships building, that Gellung Warl is going to be this enormous bureaucratic organisation in its own right. What are your comments on that?
Rueben:
That’s not the intention and that’s not how we plan to set it up. The government’s got responsibility and it’s a role for Gellung Warl to kind of oversee that and monitor that and check how they’re implementing it, but not to be the actual ones doing all these things. I really think about Gellung Warl as almost like a lens to kind of focus things. So when community is trying to work out how does it impact into government, the Gellung Warl can be a lens that can focus the energy and expertise of our community to exactly the right part of government to do what it needs to do. And similarly, when the government’s trying to work out how do we actually get the best input into this program we’ve got, we can also there be a lens to focus their interest into the members of our community where it needs to go.
Charles:
Do you see that this can also relate to local government because there are just as many local bureaucrats as there are state government bureaucrats if not more. Given we’ve got 79 local governments across Victoria, how can this roll out also to, and benefit local government bureaucracies?
Rueben:
Yeah, I think through this first statewide treaty will have a less direct impact on local governments, and I would think that the traditional owner treaty process will be where there’s a much greater intersection between treaty and local governments. But that’s not to say there won’t be impacts through this process we’re currently through.
Charles:
Rueben, Clause 88 of the legislation requires ministers and the Chief Commissioner of Police to develop consultation guidelines with the assembly. So what criteria will the assembly use to deem these guidelines effective and as a result ensure meaningful engagement?
Rueben:
That’s a really good question and I think that’s still untested at this stage. What’s really critical I think, is that there are these guidelines, and we’ve seen in the past, government has tried to do a job of engaging with First Peoples, but ultimately gets to pick and choose who it’s going to sit down and talk to and how it’s going to talk to them.
Charles:
Right.
Rueben:
And this process was really about trying to reset that relationship so that First Peoples could set the stage about who it is wanting to be consulted and how we’re going to be consulted. What that actually looks like for those guidelines is deliberately not in the treaty and not in the bill because it should be up to First Peoples to work through what that looks like and adapt and evolve it and change it as we need to.
Charles:
Well, okay. From your own personal perspective then, what are some of the omissions currently being made when it comes to establishing those relationships and dialogues between government and First Peoples?
Rueben:
I think a pretty simple answer to that is it’s always too late. They’ve already got their idea, they’ve already got their policy about what they want to do-
Charles:
Pre-made decision.
Rueben:
And they want to, okay, now we’ve got this, let’s kind of check it with First Peoples rather than, First Peoples, what do you want to see as the issues? How do you want to see it solved from the start blank page? That’s what we see often as an issue is that it’s too late in the process that we’re engaged.
Charles:
So this comes back also to key in issues with regard to closing the gaps.
Rueben:
Absolutely.
Charles:
So the bill also states that a minister’s failure to respond to assembly submissions, and actually before we get to that question, let’s just oversee what rights the Assembly has when it comes to legislations being put forward because there’s a number of options. One, the assembly, no more than two members can be invited to address Parliament or the Upper House if need be, or it can make a written submission. So talk a little bit about those and how you see they can work and what situations would be a written submission and what situation it would be to members actually going into Address Parliament.
Rueben:
Yes, so I think in terms of the annual address to Parliament, that’s going to be very much driven by whatever’s happening at the time.
Charles:
But that’s the annual address. I’m talking about in response to proposed legislation.
Rueben:
Sure, yeah. So when there is a particular piece of legislation that the assembly is invited to come and talk about, that’s where that, again, that Community Answerability Framework is going to be so important. We’re going to need to get guidance from our community about how we want to do that. This future body isn’t about just the two co-chairs getting to pick and choose how they want to go about doing their business. This is about having a rigorous process designed with our community about how they’d undertake those roles. So I don’t have answers to those because we need to sit down and have that conversation with our community, but what I would hope to achieve through that is that we can have rigorous processes to ensure that whatever the topic is the government’s trying to talk about, we connect with our experts on that, whether that’s in a particular place, whether that’s in a particular field, to say what is it the government really needs to hear? What’s the critical issue they’re missing that will enable them to get the better outcome from this and make sure we deliver that directly into their ears.
Charles:
Do you ever fear though, or have you ever feared that such a situation might result in more a reactionary response rather than a proactive response? In other words, just finding out at the last moment, right, this legislation is coming out or is due to be tabled in Parliament, we don’t have much time in order to develop a response.
Rueben:
Unfortunately that could be a reality of the situation. We’ve put as many measures in place as possible through the bill to make sure that that can’t really happen, but it still could.
Charles:
What are some of those measures then?
Rueben:
So that’s these Duty to Consult guidelines that includes when government departments are coming up with proposed legislation-
Charles:
Yeah.
Rueben:
They should be coming to talk to us about that already, not just when it’s going into Parliament.
Charles:
So that does bring up the issue and that is holding those departments to account and also holding ministers to account. Now, as I mentioned before, the bill states that a minister’s failure to respond to assembly submissions, it doesn’t affect the validity of a decision. Do you think that this provision weakens the assembly’s ability to influence government decisions because ultimately you are seeking to influence decisions?
Rueben:
Yeah, this was an ongoing kind of tension throughout the process, was recognising that yes, we wanted to have this enhanced assembly. We wanted to have the Gull and Wile as being able to do all these functions.
Charles:
Yeah.
Rueben:
But in doing so, it had to be recognition that Parliament is Parliament. Parliament has the ability to make laws and rules as it sees fit and guided by the broader Victorian community. And so there were limitations from a parliamentary perspective. Prior to undertaking this work, I had never really heard of the term parliamentary sovereignty, and I’ve heard it way too many times now.
Charles:
Well, maybe you can share it with us because it’s new to me.
Rueben:
This parliamentary sovereignty is the idea that Parliament has the power to do all things that Parliament should be able to do and that even current parliaments can’t bind future parliaments to say, this Parliament has made this decision and you can’t change it. So Parliament has to always have the ability to make whatever decisions it thinks are necessary, and that’s something you can’t change within this Westminster system that we have.
Charles:
But that doesn’t impact on current legislation once legislation’s in, unless they go through the somewhat arduous task of repealing legislation, that decision is in there. Let’s just set that one right.
Rueben:
It is, but that legislation can’t limit how parliamentarians might undertake their work.
Charles:
So what implications does that have on what you’re seeking to achieve here?
Rueben:
Yeah, so I would say that we’ve got great comfort. We’ve pushed as close to that as we possibly could with all these measures and that there’s not one single thing we’re saying, see this one thing that’s addresses all these matters.
Charles:
Yeah.
Rueben:
We’re saying there’s this, there’s this, there’s this, there’s this, there’s that. There’s all these things in complementary ways help us to address those things in the best way possible within the framework of the system we have.
Charles:
Now, obviously as you’ve stated several times, the First People Assembly and Gellung Warl will be working closely with Parliament. Is there a requirement for an office, an actual physical presence in Parliament House? Otherwise, it’s just pretty much a case of yes, prime Minister, you’re keeping all the people who are going to be negative towards you at a very, very long arms reach.
Rueben:
Yeah, there’s provisions for a space to be able to be there for members of the First People’s Assembly and also access to Parliament. There’s provisions to allow members of the First People’s Assembly as the co-chairs currently do now can access Parliament to ensure we can have those conversations as necessary.
Charles:
How important to the overall process and the future of Treaty is that increased access to Parliament and to the politicians?
Rueben:
I think it’s incredibly important from my perspective because it is about those relationships. It’s about being able to look people in the eye and know that we have a representative group of people who are there speaking on behalf of First Peoples, talking directly with the politicians.
Charles:
You’ve also mentioned here in Schedule C that there is requirement for Gellung Warl to provide general advice on appointments, and this is different to the honor roll, but advice on appointments to numerous state boards and entities. What are those boards and entities and how effective is the advice? Because that’s not making the decisions themselves, is it? That’s just providing advice to government?
Rueben:
That’s correct. There’s a few roles where there is a direct appointment role for the future of First People’s Assembly, and there are others which over time perhaps will be transferred across as decision-making roles. But this include things like members of the water corporations, which we have a growing number of First Peoples on those water corporations now, which is really important. Those sorts of government bodies where they’re after Aboriginal expertise. We want to make sure that Aboriginal people can give some advice about who they should be putting onto those boards.
Charles:
Now, the Victorian Aboriginal Heritage Council and the Heritage Council of Victoria, both of those are included in that list, aren’t they? And what’s the role they play?
Rueben:
Yeah, so the role for the First People’s Assembly in both those bodies is to do the kind of final tick-off of the appointment of First Peoples into those roles.
Charles:
But do you have veto power or will the assembly have veto power if the government says we want to have Billy blog sitting on the council?
Rueben:
It’s not the government’s decision, it’s the decision of the First People’s Assembly to make appointments to the Victorian Aboriginal here. But in doing so, we’re respecting the existing process that that’d already happened. So at the moment, the Victorian Aboriginal Heritage Council ultimately reports to the Minister for First Peoples, and they go through their own process of how they want to recruit members to be part of that Heritage Council. And then after they’ve done that, they say, okay, minister, here’s who we’ve selected as the person we want to put on board. And then the minister gets to decide to-
Charles:
Right.
Rueben:
Approve it or not approve it. We’re taking the minister’s role from that and saying, well, instead of it going to the minister, it should be coming to the First People’s Assembly to say, yep, we’re happy that you’ve gone through the right process. And now you have a new member of the Heritage Council.
Charles:
Will there still be a degree of reporting from the Heritage Council through to the Minister though?
Rueben:
Absolutely. It’s only in regard to that appointment power that we’re talking about adjusting the minister’s role. The minister is still responsible for that act and has overarching responsibilities under that act as they should, and that responsibility will sit still with them.
Charles:
Now, just so people understand, the Victorian Aboriginal Heritage Council, is that organization responsible at one level for determining the borders or the boundaries between traditional owners across Victoria, is that correct?
Rueben:
That’s correct. They appoint the registered Aboriginal parties.
Charles:
How long has it been in place?
Rueben:
2006 I think was when the legislation passed.
Charles:
Has there ever been discussion before about passing control over who’s in there to First Peoples?
Rueben:
Yeah. So they’ve done a few different reviews of the Victorian Aboriginal Heritage Council led by the Heritage Council itself, and the review a couple of years ago identified that instead of the minister appointing them, it should either be the Future Assembly or it could also be registered as some parties themselves. So we’ve made that initiative now to say that that final tick off will be done by the Future First People’s Assembly of Victoria.
Charles:
So it seems that the treaty is also encompassing a lot of tidying up of smaller initiatives that are sought to be achieved over the years, but simply weren’t?
Rueben:
Yeah, well, there wasn’t a mechanism to enable it to happen in the past. That’s why I mentioned earlier that what this is really about is a mechanism for which government no longer have an excuse to say, oh, we’d love to transfer X or Y, but there’s just no system to do it. Well, hang on. Now, there is a system, the Gellung Warl is the system by which we as First Peoples can self-determine and also take on the risk. I think that’s a really important part of-
Charles:
Explain the risk to me.
Rueben:
That government has often been reluctant to say, okay, we’re going to completely hand over responsibility of X or Y because the government still holds risk, they’re still responsible for the decision. We’ve now created the Gellung Warl, and that is a body that can hold that risk. So the state doesn’t have that excuse anymore of saying, oh no, we can’t pass over X or Y because ultimately we still need to be responsible. The Gellung Warl is a mechanism for First Peoples to take control of our own decisions and our own business and say, we are taking on that as well as taking on the risk. We can’t just go back to the state, so actually we’ve made a mistake and we need your help. We’ll have that ultimate responsibility.
Charles:
You’ve mentioned that four-letter word, risk, several times in the past minute or so. Talk about some of the risk that the assembly or Gellung Warl will be assuming.
Rueben:
Yeah, so if we think about the decision-making powers as it relates to the confirmation of originality, that’s not something we can pass the buck to if things don’t go well. We are going to be ultimate responsible for overseeing that process to make sure that works.
Charles:
So this is risk of antagonism coming from community?
Rueben:
Yeah, risk of antagonism from community, risk of financial matters, risk of all sorts of things, the fiduciary duties, all those things. Now, instead of the government having to hold onto those, we have a mechanism which First People’s lead body can actually take responsibility for that.
Charles:
Was it ever considered during negotiations that maybe this level of risk is just a little bit too much?
Rueben:
I think it’s the price you pay if you want- Self-determination means actually taking control, which means you take control of all parts of it, the good and the bad.
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