Commonwealth

Although the Federal Government has committed to Treaty making in Australia presently (as a result of its commitment to implementing the Uluru Statement of the Heart in full), the Voice is the focus, with a referendum anticipated in October-December 2023.  We set out more information on the Voice below.  

It had been anticipated that following a successful referendum on the Voice, the next step would be the establishment of a "Makarrata Commission". Makarrata is a Yolngu word which describes a process of conflict resolution, peacemaking and justice, and is used as a synonym for Treaty.  It is not clear how the establishment of the Makarrata Commission will progress in the event of an unsuccessful referendum.  

Victoria

On 23 August 2022, the Treaty Authority was established following the enactment of the Treaty Authority and Other Treaty Enactments Act 2022 (Vic).  The role of the Treaty Authority is to mediate negotiations between the State government and Aboriginal Victorians, in promoting fairness, due process and legal oversight on the development of Treaty.  

In October 2022, the First Peoples' Assembly of Victoria and the Minister executed the Treaty Negotiation Framework and Self-Determination Fund.  The Treaty Negotiation Framework creates fundamental rules for negotiating Treaties in support of fair Treaty development.  The Self-Determination Fund provides funding for First Peoples to support the objective of fair treaty development. 

Formal Treaty negotiations are set to commence in 2023, and are yet to begin.  In May 2023, the State Budget allocated $138 million for investment into the Treaty process for a four year period.  $82 million of this amount was directed to the First Peoples' Assembly.  Voting in the First Peoples' Assembly Elections closed on 3 June 2023, which accounts for First Peoples' choice for representatives participating in Treaty negotiations.

On 17 June 2023, the Traditional Owners who are to negotiate Treaty with the Victorian government were chosen after the State's Treaty Election.  A total of 22 Traditional Owners were elected to represent the North West, North East, South West, South East, and Metro regions of Victoria.

Truth-Telling in Victoria 

The Yoorrook Justice Commission, Victoria's formal Truth-telling inquiry, continues its work.  

Since our last article, Yoorrook delivered its Interim Report in June 2022.  Since then, Yoorrook has continued to conduct hearings, including with Aboriginal leaders, experts, service providers, Aboriginal community members and Government and public service witnesses, in relation to Victoria's criminal justice and child protection systems.  Yoorrook will deliver a Critical Issues Report on injustices against First Peoples in the criminal justice and child protection systems in August 2023.
In April 2023, Yoorrook's timetable and an extension to its mandate was agreed.  Yoorrook will deliver its Report in December 2024, with the inquiry set to conclude in June 2025.

Tasmania

In December 2022, the Tasmanian government announced that, following meetings with Aboriginal representatives regarding how Truth-telling and Treaty should proceed in Australia, it would establish an Aboriginal Advisory Group.

The Aboriginal Advisory group is comprised of six Aboriginal people who can work together with Government to design a process for Truth-telling and Treaty that is led by Aboriginal people.

The Aboriginal Advisory Group met for the first time in February 2023.  The Group has no set timeframe or predetermined outcome for its work.

Australian Capital Territory

The ACT is working towards self-determination for First People in accordance with its ACT Aboriginal and Torres Strait Islander Agreement 2019 – 2028.  

In July 2022, Professor Kerry Arabena provided a Final Report to the ACT Government.  The ACT Government is currently considering the recommendations in the Report, as well as other community feedback in relation to the Report and Treaty-making process for the ACT.  

Northern Territory

On 29 June 2022, the Northern Territory Treaty Commission released its Final Report.  On 29 December 2022, the Northern Territory Government provided its response to the Final Report, which included establishing a Treaty Unit within the Office of Aboriginal Affairs to support next steps in the Treaty process.  

The work of the Treaty Commission is now complete, with the Treaty Unit now focused on developing and implementing Treaty-related policies and legislation, stakeholder engagement, creation of a Truth-telling process across the Territory, and engagement with regional, local and national Commonwealth representatives for developing Voice at regional, local and national levels.  

Queensland

Further to our 15 March 2023 article, "Queensland introduces Bill to Parliament to enshrine Treaty-making process", the Path to Treaty Act 2023 was assented to on 17 May 2023.  

The Path to Treaty Act establishes a First Nations Treaty Institute and Truth Telling and Healing Inquiry.  Over the coming months, we anticipate that the Queensland Government, in partnership with the Interim Truth and Treaty Body, will commence developing these two bodies, including appointing Institute and Inquiry members.  

While the Path to Treaty Act does not deal with the Voice, "a First Nations Consultative Committee has been established" that will assist with developing a First Peoples' Voice in Queensland.  This Committee was established in July 2021, representing First Nations people in eight regions within Queensland, to inform the development of a Voice.  The Committee is set to report back to the Government on their progress to recommend a model for the Queensland Voice in 2023.  

South Australia

In March 2023, the First Nations Voice Act 2023 (SA) was passed, which established the First Nations Voice in South Australia.  SA is the first Australian jurisdiction to implement a Voice.  The SA Government website states that the SA Voice First Nations Voice will be a "direct and independent line of communication for First Nations people to South Australia's Parliament and the government."  It will be made up of six Local First Nations Voices and a State First Nations Voice.  The inaugural First Nations Voice election will be held on 9 September 2023, for Aboriginal and Torres Strait Islander people living in South Australia to vote for their Local First National Voice representative.  

SA had previously commenced a Treaty process in 2016, however this has been on hold for some time following a change in Government.  The treaty-making process is expected to recommence later in 2023, following the re-election of a Labor Government.  

New South Wales

Following the election of a Labor Government on 25 March 2023, there are hopes of progress towards Treaty in NSW.  However, there has been little progress in the months since.  

In January 2023, the Labor Opposition stated that it would commit $5 million towards a year-long consultation on the legally binding agreement between the government and Indigenous people, which allows for partnership around decision making.  However, the commitment was timed to commence after the referendum on the Voice, and would go ahead regardless of the outcome.  

Accordingly, it is likely that there will be little progress in the NSW Treaty Process until 2024.  

Western Australia

Western Australia is now the only State or Territory that is not committed to a formal Treaty process.  

However, as noted in our previous articles, Settlement Agreements such as the Noongar Settlement and the Yamatji Settlement are considered by some to be Treaty equivalents.  The recent Tjiwarl Palyakuwa (Agreement) also provides for settlement of most of the State of WA's compensation liability to the Tjiwarl people.  

Since our last article, then Premier Mark McGowan has noted that his focus will be to ensure the success of the Federal referendum, before turning any attention towards developing a State Voice.