Charles Pakana:

With the statewide treaty having been passed into law in Victoria, there’s a growing interest in local treaties, and much of that interest is being generated within local government. To talk about this and other matters specific to local treaties in Victoria, we’re joined today by Treaty Authority member, Biripi woman, Duean White. Duean, thank you so much indeed for coming onto the program today.

Duean White:

Thank you for having me, Uncle Charles, on beautiful Wurundjeri Woi Wurrung country.

Charles:

It is lovely here today, isn’t it? Duean, let’s just clarify things at a very base level from the start and determine those two different types of treaties that are within the Treaty Negotiation Framework, and before we go into that, that have been agreed to by the First Peoples’ Assembly of Victoria and the state government.

Duean:

Correct. It was a very exciting moment to see the statewide treaty, the first treaty of its kind across all of Australia, be signed into effect last Thursday. Amazing.

Charles:

So the two different types of treaties, let’s just detail what they are, and we’ll dive into the second of them, which is going to be the locals.

Duean:

Well, the statewide treaty covers, as you can imagine, the whole of the state, and it’s also designed to cover all Aboriginal and Torres Strait Islander peoples that are living within the state of what we now know as Victoria. So that means people like yourself and I that are off-country Aboriginal people living within Victoria. It’s been negotiated, as you say, by the First Peoples’ Assembly is the representative Aboriginal body and the state. It’s very exciting to see it come through.

Charles:

And local treaties?

Duean:

And local treaties, on the other hand, as you can imagine, are smaller local treaties. So whereas the statewide treaty is a very broad architecture of how things will work in the future, and at this stage, the first of a few, I understand, there will be a whole heap of work to be done on more specific areas that cover across the whole of the state. Local treaties are entered into between a delegation of traditional owners over one area of country with the state, and they may complement the statewide treaty or go into completely different issues that just happen at a local level. So for example, if there is a river in that area of the local treaty, the mobs may want to talk about how they’re going to have that managed well and ensure that, for example, what’s going into the river upstream on other areas of country might be negotiated together as well.

Charles:

Now, you mentioned a delegation, and I know that this is a term that’s thrown around quite a bit within the treaty movement, and especially within the Treaty Authority. A delegation doesn’t necessarily mean that it is a registered Aboriginal party or another recognized party, but it can be the gathering of a number of families, clans, communities, to negotiate treaty over a specific area. Can you just explain how delegation fits into the local treaty movement?

Duean:

The key thing to understand about treaty with local treaties is that there’s only one delegation per area of country. So if a traditional owner group goes onto our register and they say, as Djaara, on behalf of the Dja Dja Wurrung peoples has done so, they’ve put in an area of their country, which corresponds with their RAP boundary in their case. And so, if a second group, it may be a subset of the Dja Dja Wurrung peoples, it may be a neighbor, it may be someone else, also enters onto the register and their area of country overlaps with Dja Dja Wurrung, then in theory, they could get into a delegation together for the area they have in common, or they may decide to put it all in together, so the uncontested part of Dja Dja Wurrung’s map, the other part of their map and the common part. You can imagine like when you went back to school and you did those circles that overlapped one another, and that’s what we’re talking about when we come to a delegation.

And there may also, if I could say, there may also be strategic reasons why different groups who don’t even have overlapping country or shared interests in country might want to get together. They might say, “Well, look, group A and group B, we’ve got a lot in common, we get along very well, let’s combine our resources and create a delegation of A and B, and we’ll just, within the treaty, we might have a lot in common and then we’ll have specific provisions relating to each of us.” So there’s lots of ways to do it.

Charles:

It could be for a waterway, for example, that goes across two different areas. Okay. So let’s just firm this up and just clarify it. If there is any area of land within Victoria that’s going to come under negotiations for local treaty, there can only be one delegation, regardless of its construct, that can negotiate a treaty with the state government at any time, that’s it?

Duean:

The state wants to be sure that all the groups have had an opportunity to put in for treaty. And when that delegation, which is formed through an Aboriginal-led process, the state doesn’t decide who’s in or out, the groups get together, with our help if required, to work out how they’re going to negotiate that treaty, then once that group is formed, then we, as the Treaty Authority, can put them onto the register as a delegation, and then that’s the step that’s required before we invite the state to negotiate.

Charles:

Now, it is important that there are only two key or primary negotiating partners when it comes to a local treaty, and that is the state government and the delegation that has been formed to negotiate treaty. There are additional negotiating parties as well, as determined under the Treaty Negotiation Framework. Would you just go into that to explain who, what they could be?

Duean:

There are lots of other groups that might have an interest in that area of country or be able to contribute to that treaty or those negotiations. And so, the Treaty Negotiation Framework provides that the primary negotiating parties may decide to invite another entity, which may be a local government, it could be a neighboring state, it could be the Commonwealth government, it could be a corporation, for example, if there’s a big wind farm going in, it could be a mining company, et cetera, et cetera, so there’s a whole range of different people and organizations that might be invited to participate in the treaty. And this is really relevant for some of the groups that I work with closely who are up on the rivers and country extends both sides, for example, of the Murray River and into New South Wales, so those groups might consider inviting New South Wales to the negotiations. The local government body or the other state or the Commonwealth or whoever it is, they don’t have to do it.

Charles:

Now, that’s an important thing to understand, isn’t it? Because it’s an invitation from the government and the delegation, that invitation does not have to be taken up.

Duean:

Absolutely not. You opt in, but at the same time, you can’t demand to be part of the negotiations either.

Charles:

Well, let’s park that one just for a second, because I’m really keen to just explore what you believe the process will be following an invitation. The audience has to understand this hasn’t been done before anywhere in Australia, so we’re charting new ground, obviously. But let’s say a local government were to be invited in to be an additional negotiating party, and it declines to participate in those negotiations. Is there any perception of ramifications on that local government? Can all of a sudden the state government come in and say, “Well, we’re going to negotiate on your behalf, we’re going to give away your land if negotiations go the First Nations way”?

Duean:

Well, I don’t think anyone will be giving away anybody’s land.

Charles:

But these are questions and concerns that you must be hearing as well, because they’re all over the place. People are really scared about this sort of stuff because they’re being fed all sorts of misinformation and misinterpretations.

Duean:

Which has been going on for way too long.

Charles:

Absolutely.

Duean:

The local government body, of course, does not have to be part of the conversation, but I would imagine it would be in its interest to do so, and they may well want to take up talks with the state. They’re on that side of the fence, obviously. Maybe if they didn’t want to participate, perhaps they could let their views be known to the state as to where they stand on certain things. But I would imagine that it would be in a local government body’s interest to participate and see what’s going on and have a say there and then. If there was a conversation going on that could impact on me and my interests or whatever that might be, then I probably would want to at least be there hearing what’s going on and be able to represent my views.

Charles:

We parked just for a second the issue of additional negotiating parties, such as local governments or organizations, really being eager to join into the local treaty process. There is no way that they can invite themselves in there, but are there ways in which they can express their interest, that when local treaties in their areas do start to happen, that they wish to be involved?

Duean:

Without wanting to speak for them, because I don’t work for them and we’re independent, of course, of government and local government and traditional owner groups, what I would suggest on that is that there’s probably two ways they could do that. The first way is to talk to their local traditional owner groups, and as you recognized at the beginning, it’s not necessarily just the big ones, but if there might be other groups. So really get to know who are the local people there and start talking, get some ideas. You might then be in a better position in local government to decide whether you should be there or not, but I’d imagine those relationships would help. And on the state government side as well, perhaps start talking to the state government as well in the First Peoples’ state relations and express your interest in wanting to learn more and potentially participate in a treaty over country in your area.

Charles:

And of course, the Municipal Association of Victoria, or MAV, is undertaking a lot of work on that level as well. So to local government listeners right now, you can also reach out to the MAV, I’m sure. I want to just focus on the word negotiations now, because it seems to have been misinterpreted extensively over the past couple of years. Negotiations for a treaty are going to be just that, there don’t seem to be any dictates, but am I correct in assuming it is a negotiation, people go in with some aspirations, then the others come in and lowball them? Is that the way you see that these could take place?

Duean:

I’m not sure how they’ll take place, and we haven’t sat down and done local treaties so far. But I would imagine there could be a lot of conversations take place before groups even get into sitting down at the negotiating table.

Charles:

So hence this goes back to you saying before that for those local governments and other interested organizations, reach out to your TA groups and other organizations and start conversing now.

Duean:

And I’m sure as we go along, there’ll be certain precedents set or understanding of certain positions and needs and requests and limits on what can and can’t be agreed to, and that that will start to formalize as we go along. But I imagine down the track it’ll be… There’s several local treaties that have been entered into, we’ll have a pretty good understanding of the state government’s position on various things and the sort of common interests that traditional owner groups have, and some of those great ideas are probably going to be shared, I would imagine.

Charles:

One of the things I thought was particularly interesting is when you and I have gone into briefings and discussions with local government CEOs and various other organizations, and you are constantly being asked the question, “What do we expect to see in local treaty?” And you are emphatic in your response that you simply don’t know. Is that a fair assumption that this is your attitude and the Treaty Authority’s attitude going in?

Duean:

Well, of course, we, the Treaty Authority, have no role encouraging, suggesting ideas, anything like that, this is a completely self-determined process. And so, those traditional owner groups, they’ll know exactly what they need for their mobs on their country, so they will be the ones that’ll be proposing all the ideas.

Charles:

And we also expect that local treaties will fall under a similar, not necessarily model as the statewide treaty, but an iterative process. For example, the assembly and even supporters have been at pains to say that this is Treaty 1.0, what we’re seeing now, and it will evolve with the changes in requirements and political situations over the years. Do you see that there is a possibility that this could occur at local treaties as well?

Duean:

Absolutely. I would imagine that some of the treaties, people might consider the possibility of a bit of a review, an assessment, an evaluation of how things are going along as a means of changing, and things may change. There may be a subsequent Native title determination, for example, handed down post-treaty, or there may be a group given certain recognition as a registered Aboriginal party that may happen after they’ve negotiated a treaty, and so I’d imagine there could be potentially an adjustment.

Charles:

You mentioned native title and that’s a bit of an elephant in the room for a lot of people and a lot of parties. What impact does native title have on treaty? Does it stop everything from happening? Is it going to negate anything agreed to under native title?

Duean:

I just can’t emphasize enough how much this is the decision of the traditional owner group involved. But there’s probably native title impacts in a couple of ways. The first way is that it is one of the forms of what we call existing status under the TNF, the Treaty Negotiation Framework. So existing status essentially means government or legally recognized rights. So some of these groups have gone through a very long and arduous process to have their rights recognized through legal means, such as native title, under the TOSA Act, the Traditional Owner Settlement Act, and also as a registered Aboriginal party by the Aboriginal Heritage Council. Once a group has those rights, they’re what we call existing rights, and so the idea is that unless they agree, those rights won’t be on the table to negotiate among the delegation and with the state. We don’t want groups to keep going through the same hurdles. So that’s one way it impacts.

The second way is that there are a lot of groups that are in the process of having their native title rights recognized at the moment, and some of those groups, it’s a huge amount of work. Treaty is designed to be much simpler, especially in terms of what sort of “evidence,” in inverted commas, that you produce. But with native title process, that can take a very, very long time, sometimes 10 years or more. So some of the groups are getting going with treaty, and some groups have decided, well, we want to see where we fall with our native title application before we start treaty. It’s really up to the groups. But there’s nothing to stop you negotiating a treaty while that native title matter is on-foot. You could do in whatever order that you choose to do. But I think a really key point that a lot of people miss is that treaty is much broader than just land-associated rights.

Charles:

Well, expand on that a bit for us, without compromising yourself or committing any thoughts to traditional owner treaties, but what are some general thoughts?

Duean:

So for example, a lot of people are really interested in culture, and a RAP gives a group the right to determine cultural heritage matters. But it may be that the local treaty, the groups really want to make sure that languages are taught in schools. Obviously, it’s connected to country, like everything is connected to country, but it’s not something that’s clearly connected with the rights over the actual land as something like native title might be, so there might be that. Or some people have talked about the possibility of opening camps for their mobs to get their kids back on country and perhaps meet elders and learn their language and things like that. So things like that are not necessarily just associated with rights over the land in which they are living.

Charles:

Well, certainly nothing sounds sinister in anything you’ve mentioned there. What I’m keen to appreciate is some of the key challenges that the authority has come up against in how do we do this, given that once again, this is the first time this has happened in Australia, and you can only take so much from what’s been done over in BC or in other countries. What are some of those key challenges?

Duean:

Well, that of itself is probably a key challenge, is the fact that we’re sitting down here, and in theory, we’ve got this rule book in front of us, and how are we going to make this happen? And it’s like anything, if anyone’s ever worked in a policy environment, you can sit down and plan out your policy and think all the contingencies, and what if this happens and what if this happens and what if this happens-

Charles:

But in reality.

Duean:

… but often, it’s not until you sit down and someone comes up with, “But what about this?” And you’re suddenly like, “Wow, we didn’t think about that one.” So by itself, it’s something we just keep moving and adjusting. So for example, at the moment, we’re going to go down the path of our first steps in any negotiation where a delegation has been formed or is starting to be formed, and while we’ve done a lot of thinking about what that might look like and how we’re going to make that happen and what are the steps involved, we’re still confronting situations that we haven’t come across before because it’s never been done before. So that’s probably one of our biggest challenges is what we do in theory, and then what it looks like on the ground when the rubber hits the road.

Charles:

One of the things that I’ve heard is a degree of surprise within the local government sector and also in the broader community, because there was a general misconception that as soon as the register, or what used to be called the Treaty Authority Database, was opened for delegations and traditional owners to register their interest in negotiating a treaty, there was this thought that there was this going to be this inundation of interest. Yet, up until yesterday or today, really it’s only been the Djaara, and the register has been open for how long?

Duean:

The register has been open since the 1st of July last year.

Charles:

So well over a year, close on a year and a half, and we’ve only got the one.

Duean:

Uncle Charles, there’s two.

Charles:

Oh, there’s two, because we now have in the southeast, I believe-

Duean:

East Gippsland.

Charles:

… in Gippsland, so tell us a little bit about that.

Duean:

Well, there’s two groups that are on the register so far. Many, many others are on the way and have expressed an interest to pursue treaty. And the first ones of those is Dja Dja Wurrung that entered onto the register. The first step is that groups can go onto the register. The second step in the process is that they can notify us that they wish to form a delegation, so they have a notice of intention to form a delegation. Now, when Dja Dja Wurrung went on there, they went onto the register, and they haven’t yet done that next step. But the second group, the Bidwell-Maap people out in East Gippsland have both gone onto the register and run their flag up their pole to say that they’d like to get going with negotiations, and have notified us of their intention to form a delegation.

Charles:

And we’ll be speaking to that delegation or representatives from that delegation hopefully over the next several weeks. It’s definitely not up to the Treaty Authority to comment on those matters there. Just getting back to the point where, okay, now we have two, after nearly a year and a half of the register being opened, is there any expectation realistically there will be a sudden influx, or is it just going to be we just have to wait and see?

Duean:

I don’t know if there’ll be so much as an influx, but I think that it is gaining momentum. So it’s taken a long time for people to get their heads around treaty and what it is, and I’d imagine that with the statewide treaty, all the publicity around that, that there’s probably a lot more interest and it’s really coming to life for a lot of groups, so we’re seeing that this is really happening. So we’re seeing something that a lot of people never thought was possible, and hopefully that will inspire people to do that.

The other thing we need to understand is that some of these traditional owner groups are so busy, they are drowning in requests for information and reviews of strategies. One group we spoke to, they said that they had 17 strategies on their list to get through in the next two weeks to give feedback on. And so, there’s huge demands for time and resources and skills and knowledge, and we need to just understand that these groups are very busy and spread across a lot of different things, and some of them are renegotiating certain agreements they’ve got, some are looking at different forms of legal recognition, some are in active and potential native title determination work or pre-work. And so, treaty is one other thing on their list of things to do, and it requires a lot of consultation.

Charles:

Last question before we let you go, I know you’re a very, very busy person. But I’m aware of a number of key agreements that have been struck between traditional owner groups and cities, and I’m thinking Wurundjeri Woi Wurrung and the city of Darebin and the Dja Dja Wurrung and the city of Bendigo, until recently, do these agreements have any potential impact from your perspective on treaty? Should local councils be saying, “No, we’re not going to enter into MOUs because we may well be entering into treaty”?

Duean:

Well, it’s really up to them. But I would imagine that would be a sign that they probably has an existing relationship there and some connection and conversations have taken place, so it may be that they wish to invite that local council as an additional party to the treaty at a bigger scale, because treaty at this stage is just between the state, and not that we don’t have a Treaty Negotiation Framework between local governments and local traditional owner groups. But it may be that’s something that’s brought to the table, just to say, “Look, we’ve already entered into these agreements with the local council, and we’d like to have them recognized as part of a broader treaty.” It’s up to them.

Charles:

So very, very last question now, what key bits of advice would you give to local councils, and other concerns that feel they may be brought in as additional negotiating parties, what bits of advice would you give them now in order to prepare and start to establish those relationships as a prerequisite almost?

Duean:

I’d say this is just the most wonderful opportunity that you’ll probably see in your lifetime for just an incredible thing that we never thought could happen, this huge opportunity for you to connect this very important part of your community with the broader part of your community. In the spirit of reconciliation, nothing to fear, lots to gain, have the conversation, start the relationships, and if you don’t have those relationships in place, what a great opportunity to use it to reach out and start connecting with people and rebuilding those bridges and improving them.

Charles:

Duean White, thank you for your time.

Duean:

You’re very welcome, Uncle Charles.