Queensland introduces Bill to Parliament to enshrine Treaty-making process

What you need to know

• On 22 February 2023, the Queensland Government introduced the Path to Treaty Bill 2023 (Qld) into State Parliament, continuing the State's 'Path to Treaty' journey which began in 2019.
• The Bill establishes a First Nations Treaty Institute to develop a framework for Aboriginal and Torres Strait Islander peoples to prepare for Treaty negotiations and sets up a three-year Truth-telling and Healing Inquiry into the continuing impacts and effects of colonisation.
• The Bill represents a big step in the Treaty-making process between the Queensland Government and the First Nations Peoples of Queensland, and is reflective of the overall progress towards Treaty being made in most States and Territories around Australia.
• A "Voice to Parliament" is not dealt with by the Bill, although a First Nations Consultative Committee has been established to help design a State-based Voice structure for Queensland.

Next step in the Queensland's Path to Treaty Process

Queensland has been in the process of negotiating Treaty with Aboriginal and Torres Strait Islander peoples as part of its Path to Treaty process since 2019. For more information see the Treaty updates in our Native Title Year in Review publications for 2019 (Treaty making in Australia—will the pieces of the puzzle come together?), 2020 (Treaty update – progress in state based treaty negotiations and proposals and 2021-2022 Federal government commits to Uluru Statement from the Heart while Treaty momentum gathers).

As part of this process:

• an Eminent Panel of Aboriginal, Torres Strait Islander and non-Indigenous Queenslanders was established to provide recommendations to the State;
• a Treaty Working Group was also established to conduct community consultations and produce a report;
• a Treaty Advancement Committee was commissioned to produce a further report in 2021; and
• in response to the Advancement Committee's report, the Queensland Government signed a Path to Treaty Commitment in August 2021.

On 22 February 2023, the Queensland Government introduced the Path to Treaty Bill 2023 (Qld), continuing the State's 'Path to Treaty' journey.

The Bill establishes two bodies and makes some other changes

The Bill proposes to:

• establish a First Nations Treaty Institute, an independent Aboriginal and Torres Strait Islander-led body to develop a Treaty-making framework to prepare for substantive Treaty negotiations;
• set up a formal Truth-telling and Healing Inquiry, a three-year commission similar to a Commission of Inquiry, which will focus on the continuing impacts and effects of colonisation; and
• amend any existing legislation that reflects discriminatory policies and practices.

Further detail is contained in the Explanatory Notes tabled with the Bill.

First Nations Treaty Institute to assist with negotiation of Treaties, but won't be a party

In addition to developing a Treaty-making framework for Treaty negotiations, the First Nations Treaty Institute would provide support to Aboriginal and Torres Strait Islander peoples in those negotiations.  It would also act as a general advocacy body to encourage support for Treaty negotiations within the broader Queensland community.

However, the Bill makes it clear that the Treaty Institute itself will not be a party to, or represent any particular group in, negotiations. The intention is that the Treaty Institute, and the framework it develops, would act to support individual groups in their negotiations with the State.

Treaty negotiations may relate to particular areas of Queensland land or waters, or to particular Aboriginal peoples or Torres Strait Islander peoples. That is, there may be multiple Treaties in respect of different areas or communities, but also the potential for different communities or groups of Aboriginal or Torres Strait Islander peoples to enter Treaty negotiations as a collective group.

What is not clear at this stage is whether there will be any scope for other land users to participate in Treaty-making negotiations in respect of matters which may be relevant to their interests.

Truth-telling and Healing Inquiry to look at impacts of colonisation in Queensland

The Truth-telling and Healing Inquiry is an important step in Queensland's reconciliation journey. The Inquiry, which must have a majority of Aboriginal and Torres Strait Islander members (including at least one Aboriginal person and one Torres Strait Islander person), will use two methods of inquiry – truth-telling sessions and truth-telling hearings.

Truth-telling sessions will allow people to make submissions on a voluntary or invitation basis, and can be held in informal settings such as community events or festivals. Truth-telling hearings will be more formal hearings, with people required to attend and give evidence unless they have a reasonable excuse not to do so. The Inquiry will also have powers to require the production of materials from government entities that the Inquiry considers will assist it in performing its functions.

The Inquiry must also have regard to the interests of both Aboriginal and Torres Strait Islander peoples and Aboriginal tradition and Ailan Kastom (a Torres Strait Islander cultural practice) during the truth-telling sessions and hearings. The sessions and hearings will be open to the public, except where it is requested they be private and the Inquiry agrees.

How far away are Treaties?

The Bill is not a Treaty, but rather establishes a process to achieve Treaty. It is currently anticipated that Treaty negotiations will commence in 2024. Treaties themselves are some years away.

Land users and those engaging with First Nations people should continue to monitor progress towards Treaty. The recent developments in Queensland are similar to Victoria's Treaty journey. The significant progress being made by these two States is reflective of the overall progress towards Treaty being made in most States and Territories around Australia.

It is worth noting that two elements of the Uluru Statement from the Heart - Treaty and Truth – are reflected by the First Nations Treaty Institute and the Truth-telling and Healing Inquiry. The third element of the Uluru Statement, a Voice to Parliament, is not dealt with by the Bill, although a First Nations Consultative Committee has been established to help design a State-based Voice structure for Queensland.

Authors: Marty Doyle, Lawyer; and Tess Birch, Senior Associate.