Path to Treaty is less clear in wake of failed Voice referendum
27 May 2024
Native Title Year in Review 2023-2024
What you need to know
- After the unsuccessful "Voice" referendum, the Federal Government has announced that will not pursue Treaty nationally but remains committed to Truth Telling.
- Most States and Territories are continuing efforts towards Treaty, Truth Telling and/or Voice structures, but the pace seems to have slowed.
- Liberal/National opposition parties in Queensland and Victoria have withdrawn support following the referendum outcome.
What you need to do
- Understand that the movement toward truth Telling and, in the States, Treaty making, remains strong. It is, however, a long process which is becoming more political.
Reminder of background to Treaty in Australia
Australia continues to be the only Commonwealth country to have never signed a Treaty with its First Nations people. The Federal Government has recently confirmed that it will not be pursuing a Commonwealth level Treaty.
However, most State and Territory governments continue to actively work towards Treaty, and we include a summary of that activity below.
Voice
2023 did not deliver a unifying position on First Nations recognition.
As is well known, on 23 March 2023, the Federal Government announced the question and Constitutional amendment that would be put to the Australian people at referendum. The announcement came as part of the Government's commitment to implement the Uluru Statement from the Heart in full, with "Voice" being one of three elements of the Uluru Statement (along with Treaty and Truth).
We set out the proposed Constitutional amendment in our Native Title Year in Review 2022-2023 article "Federal focus on the Voice to Parliament, while Treaty and Voice progress continues in the States and Territories".
On 14 October 2023, a 60.06% majority of the 89.95% of Australians that voted, voted 'No' and the referendum did not pass. The ACT was the only state or territory that voted majority 'Yes'.
Since the outcome of the Voice referendum, delays to Treaty and Truth-telling processes have already been seen in some jurisdictions, and a number of opposition Governments have formally withdrawn support for Treaty.
Status of Treaty making around Australia
The status of Treaty making in Australian States and Territories can be broadly summarised as follows:
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Commonwealth |
Despite previously committing to Treaty-making as a result of its commitment to implementing the Uluru Statement of the Heart in full, the Federal Government appears to have walked back its preparedness for a national Treaty. In February 2024, Prime Minister Anthony Albanese announced that the Federal Government would "take the time needed to get Makarrata and Truth-telling right", and instead highlighted that Treaty making would continue at the State and Territory level. |
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Victoria |
Treaty Victoria is the most progressed jurisdiction when it comes to Treaty, with Victoria's First Peoples Assembly (Assembly) expected to commence Treaty negotiations later this year. The Assembly, which currently comprises 30 members, is the independent and democratically elected body that represents Traditional Owners of Country and Aboriginal and Torres Strait Islander peoples in Victoria. Under the Treaty Authority and Other Treaty Elements Act 2022 (Vic), the Assembly has established a Treaty Authority (with five appointed First Peoples members, known as "Treaty Umpires"), Treaty Negotiation Framework and Self-Determination Fund to facilitate Treaty negotiations between the State Government and First Nations Victorians. The Assembly aims to negotiate a statewide Treaty, as well as empowering other Traditional Owner groups in Victoria to negotiate Treaties that reflect specific aspirations and priorities in their areas. In January 2024, the Victorian Coalition announced it was withdrawing its support for Treaty making in Victoria, citing concerns regarding delays caused by cultural heritage processes. It is not known what impact this will have on Treaty progress. Truth-telling The Yoorrook Justice Commission, Victoria's formal Truth-telling inquiry, continues its work. In August 2023, Yoorrook released the Yoorrook for Justice report into Victoria's child protection and criminal justice systems which contained 46 recommendations. In April 2024 the Victorian Government published its formal response, accepting four recommendations in full and 24 in principle. Only three recommendations were rejected with the remaining 15 placed 'under consideration'. Yoorrook is now looking into land, sky and waters, health, housing and education and economic prosperity and will deliver its final report in 2025. |
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Tasmania |
There has not been much public activity on Treaty making in the last 12 months. Tasmania's Aboriginal Advisory Group (which comprises six First Peoples members working together with Government to design a process for Truth-telling and Treaty that is led by Aboriginal people) met for the first time in February 2023. Since then, the Aboriginal Advisory Committee has not released any updates. Separately, in early 2023, a delegation named 'tuylupa tunapri' submitted a draft Lutruwita (Tasmania) Treaty Bill 2023 to the Tasmanian Government. The Tasmanian Government is yet to formally respond. |
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ACT |
The ACT Government does not appear to have established the 'First Nations Eminent Panel for Community Engagement', which it announced in early 2023. The intent of the Panel is to oversee the process for Treaty and Truth-telling in the ACT. |
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NT |
Treaty Treaty in the Northern Territory is currently being progressed by the "Treaty Unit" within the Office of Aboriginal Affairs. In January 2024 Aboriginal Affairs Minister Chansey Paech announced that the Government was proceeding with a revival of the "Treaty Working Group" and a Treaty Symposium was held in April 2024. Truth-telling Truth-telling was identified as an imperative step on the NT's Treaty journey. The Truth, Healing and Reconciliation Grant Program has been established, with the NT Government is offering grants of up to $20,000 each to support truth-telling activities and initiatives. |
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QLD |
Queensland continues to progress Treaty, in accordance with the Path to Treaty Act 2023 (Qld), which established a First Nations Treaty Institute (Institute) and Truth Telling and Healing Inquiry (Inquiry). On 26 April 2024, the Queensland Government announced appointments to the Institute and Inquiry. A 10 member First Nations Council will oversee the Institute. Key functions of the Institute include co-developing a Treaty making framework with the Queensland Government and supporting First Peoples in Queensland to participate in Treaty negotiations with the State. The future of the Institute will depend on the outcome of the state election later this year. Following the Voice Referendum, the Queensland Coalition withdrew its support for Treaty making in Queensland and in January 2024 announced that if elected, it will abolish the Institute. The Inquiry consists of five members and will be chaired by Barrister Joshua Creamer. The Inquiry will commence work on 1 July 2024 for a minimum of three years. The functions of the Inquiry include conducting Truth-telling sessions and research into the impacts and effects of colonisation on First Peoples in Queensland. Queensland has also been developing its own Voice, via a First Nations Consultative Committee, which was set to report back to Government in mid-2023. The final report has not yet been publicly released. |
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SA |
South Australia continues to progress Treaty and Voice, in accordance with the First Nations Voice Act 2023 (SA), which established the First Nations Voice in South Australia. In March 2024, 46 representatives were elected to the South Australian Voice to Parliament. The Voice is an advisory body and does not have veto powers to decision-making powers in South Australia's Parliament. However, it is an opportunity for First Nations people to raise community priorities in a public, transparent and accountable way. 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 following the re-election of a Labor Government, who have committed to "delivering on a state-based Voice, Treaty and Truth for the Aboriginal people of our state." |
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NSW |
In October 2023, NSW Minister for Aboriginal Affairs and Treaty David Harris, announced that the NSW Labor Government is aiming to set up an independent Treaty commission by mid-2024. A motion to progress Treaty processes passed the NSW Upper House with a slim majority in December 2023. As of April 2024, the NSW Government is committed to a 12-month consultation process with Aboriginal communities on their aspirations for a Treaty framework or other formal agreement making process, to be led by three dedicated Commissioners. The Government is currently seeking applicants for the Treaty Commissioner roles. |
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WA |
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, Yamatji Settlement and Tjiwarl Palyakuwa are considered by some to be Treaty equivalents. In June 2023, following Mark McGowan's resignation, Roger Cook was appointed by the ALP as the replacement leader and Premier of WA. As a former president of Australians for Native Title and Reconciliation (ANTaR), it is possible that Premier Cook will accelerate the Treaty process, but as of May 2024 there have been no announcements regarding a formal Treaty process in WA. |
Where to from here?
In the aftermath of the failure the Voice referendum, the path to Treaty has become far less clear. Although progress and commitments continue in each State and Territory, it appears likely that there will be significant delays and setbacks.
Ashurst will continue to monitor updates and progress toward Treaty and Truth Telling at the Federal level and around Australia.
Want to know more?
- Federal focus on the Voice to Parliament, while Treaty and Voice progress continues in the States and Territories, 25 July 2023 - Provides status up on Treaty and Voice from 2022 and early 2023.
- Federal Government commits to Uluru Statement from the Heart while Treaty momentum gathers, 11 July 2022 - Provides 2021 and early 2022 Treaty and Voice update.
Authors: Tess Birch, Senior Associate; and Ben Cranley, Lawyer.
