Brennan Justice Talks 2024 Treaty Now

Marcelle Burns: Hi everyone, I'd like to welcome you to tonight's Brennan Justice Talk number six for 2024 on ‘Treaty Now!’. For those of you who don't know me, my name is Marcelle Burns. I'm a Gomeroi-Kamilaroi woman and the Associate Dean of Indigenous Leadership and Engagement in the Faculty of Law at UTS. I'd like to start off today by acknowledging Country and the Traditional Custodians on the land on which we meet. The unceded lands of the Gadigal peoples of the Eora nation and pay respects to their Elders, past, present, and emerging. I know we have a lot of people online, so I'd also like to acknowledge traditional owners of the country from where you are Zooming in today. I also like to acknowledge, as I often say, that these have always been places of law, knowledge and learning, so we continue that tradition today. So, welcome everyone to UTS Faculty of Law. I'd just like to introduce our speakers for the panel tonight. Mr Shane Hamilton, who's a Wakka Wakka and Bundjalung man from Queensland. He's a deputy secretary of the Aboriginal Affairs at the premier's department in New South Wales government. He has a long history of working in the government and non-government sector, including with PwC's Indigenous Consulting and Inside Policy, Aboriginal Housing Office and Shane is also experienced in the development of business partnerships between the corporate sector and not-for-profit and government entities and was instrumental in establishing position promo and First Nations Blockchain, both indigenous-majority owned business. So, thank you for joining us today. 

On screen we have… Dr. Tony McAvoy, Senior Council. Tony is a Wirdi man from Central Queensland. He's a barrister and first Indigenous person appointed as a Senior Council and holds an Honorary Doctorate from UTS. Dr McAvoy’s practice includes native title environmental law, administrative law, human rights, discrimination, coronial inquests and criminal law, quite a cross-section of a practice there. He was acting Northern Territory Treaty Commissioner from 2021 to 2022 and also Senior Council assisting the Royal Commission into the Protection and Detention of Children in the Northern Territory. Dr McAvoy has served as an acting Commissioner in the New South Wales Land and Environment Court and has had numerous board appointments and worked in government prior to going to the bar. Our next panellist is Associate Professor Harry Hobbs, currently with UTS Faculty of Law but defecting – he's just defected – to the University of New South Wales, unfortunately for us. But Associate Professor Hobbs is an experienced Constitutional and Human Rights Lawyer working at the forefront of academic research and legal and political debate about Indigenous state treat-making. Harry is committed to understanding how Indigenous sovereignty can be better recognised in national and international legal systems and has a particular expertise in the treaty debate in Australia. He co-authored the book Treaty with Professor George Williams (second edition) in 2022, which is one of the leading books on treaty-making in Australia and also co-editor of Treaty-making 250 Years Later with Federation press with Allison Whitaker and Lindon Coombes. And our final panellist today is Professor Linda Coombes, who is an industry professor and the Director of Research at Jumbunna Institute for Indigenous Education and Research at UTS. Professor Coombes is the descendant of the Yuwaalaraay people of Northwestern New South Wales and has worked in Aboriginal Affairs in a range of positions, including Director at PwC Indigenous Consulting, Chief Executive Officer of the National Congress of Australia's First Peoples and CEO of Tranby Aboriginal College in Glebe. he is also a co-editor of the book Treaty-making 250 Years Later. So, thank you very much our panellists for joining us today. I have to confess it has been pointed out to me there's a lack of gender balance on the panel today [laughing]. So, I'm here to represent the black matriarchy so I hope I do the sisters proud. Okay so, anyway, it's um our experts in the field. So, just to introduce our talk today, we have some housekeeping matters. So, for those for who are unfamiliar with the building, the bathrooms are opposite the lifts where you came in. For those who are joining us online, we ask you to stay muted and turn off your cameras, just to assist with the AV working and also that this session is being recorded. So, today's topic on treaties. It is almost trite to say that Australia is the only British colony where treaties were not negotiated with First Nations. Historically, treaties were negotiated between the British and Indigenous peoples in Canada the United States Aotearoa in New Zealand and other colonies in, across the globe. There are many different theories on why this is the case. The observation of Captain James Cook and Joseph Banks was that the continent was barely populated and confined to the coast and therefore was right for colonisation. There was also the view that First Nations lack the intellect and capacity to enter into legally binding agreements, or the myth that Australia was ‘Terra Nullius’, a land belonging to no one, or in its most extreme form a land where the people were without an established system of law. That myth of Terra Nullius, rejected by the high court in Mabo and Queensland number two, which described the doctrine of Terra Nullius as a legal fiction. Instead finding that First Nations peoples have complex systems of laws which allocate rights and interests in land. The findings in Mabo, however, have been limited to property rights, or what we now call native title. Today, we live with the consequences of not having negotiated treaties, as articulated in the ‘Uluru Statement from the Heart’, this is the torment of our powerlessness as First Peoples in Australia. the 2017 Uluru Statement from the Heart, a statement made by 250 First Nations peoples, called for “Voice, Truth and Treaty”. Voice, being a constitutionally enshrined first people's Voice to the Parliament and truth and treaty being realised through a Makarrata Commission to oversee treaty negotiations and truth-telling processes between Australian governments and First Peoples. This week marks one year on from the unsuccessful Voice Referendum, which for many was a lost opportunity to advance the status of Aboriginal and Torres Strait Islander peoples in Australia. However, not all has been lost. Most state and territory governments have commenced treaty negotiations or consultations and negotiations around the country, and most recently this is starting in New South Wales, where the Labor government was elected on a platform to commence treaty consultations. So tonight, our panel is here to discuss the topic of treaties and what that means in the Australian context and more specifically New South Wales. So, let's get started. Okay, so I’d just like to start off with a general question for the audience, Harry you can answer this but if anyone wants to add, what is a treaty? How would you describe it?

Harry Hobbs: Yeah, it's a really important question and I think the first thing is you're going to negotiate a treaty, what is a treaty, what could it contain, what might it look like in Australia. Obviously without a history—as you said Marcelle—of treaty-making means we don't have a language to describe these relationships, we don't have the Institutions and processes in existence in order to undertake negotiations and then to work out what happens if a dispute arises over what the treaty says, and so we're starting very far back in the system. I think at its simplest, a treaty between Indigenous Nations and the NSW government for example, or more broadly in Australia, is just a promise by two or more political communities to resolve disagreements and disputes through negotiation, discussion, debate. It's a promise to act in a certain way that obviously has legal obligations because it's going to be enacted or set out in law, but it's also about the relationship that is ongoing between the two or more political communities who would negotiate that agreement. That's at its sort of simplest term. Then if you think more broadly about what it might look at international law, a modern treaty, describe that compared to an historic treaty that was negotiated during colonial times, colonial eras, a modern treaty will recognise self-determination and recognise the inherent right of Aboriginal nations in New South Wales to some degree of sovereignty and self-government. That will be up for negotiation and up for compromise, I suppose, but at its core it will need to recognise that Aboriginal nations didn't cede sovereignty they retain their sovereignty, and as an exercise of that, they're able to either establish – or through the treaty – or essentially empower some form of self-determination. And again, that's hard because we've never done that in Australia. 

Marcelle Burns: Thank you. So, would you say treaties between nation states and Indigenous people's is a particular type of treaty, not treaties in the conventional sense of the word?

Harry Hobbs: So, certainly international law a treaty has a particular meaning and a treaty under the Vienna Convention on the Law of Treaties says that it's a treaty between two independent states. So in Australia and in Canada and New Zealand – Aotearoa – and in the United States as well, the state does not accept that Indigenous nations have an external sovereignty and so Australia will not be negotiate a treaty under the Vienna Convention. That's not what will be happening in New South Wales I imagine, even though many Aboriginal and Torres Strait Islander peoples quite rightly say that they want something more significant, and I know this is something that Lidia Thorpe in Parliament has been asking for as well, or calling for, and certainly many other people have been making similar calls. But that I imagine is not on the table in New South Wales, For one, New South Wales can't execute an international treaty. So it is different from an international treaty, you might think between two independent states, but it still is a – I would argue – it still is a constitutional document for Australia. If it is an agreement by two or more political communities to act in a certain way and to relate to each other in a certain way that is legally binding, that is still a constitutional document in that it governs the exercise of political authority in the state.

Marcelle Burns: Great thank you. So just a question for everyone: what is the content of treaties? what are some of the issues that can be negotiated through treaties? 

Tony McAvoy: Thank you all. I acknowledge that I'm in Gimuy [Cairns] on the lands of the Yidinji in North Queensland, far North Queensland. Thank you, Professor Coombes. I noticed that my photo on the material for this is a little bit old, but then I also noticed that Professor Coombes is probably older than mine. I'm allowed to pick a little bit of fun at Professor Coombes because we're old work comrades. Well, some of the things that a treaty ought to contain in the Australian context are, from my perspective, and I think it's generally viewed that if we are to deal with historic grievances and the purpose of the treaty is to provide some form of settlement, then it needs to deal with some form of statement of regret or sorrow or apology. It needs to contain reparations for the past conduct. Usually, there needs to be some land and water settlements and there needs to be some arrangements for the recognition of, ownership or benefit-sharing with respect to natural resources going forward. But the most important, from my perspective – and I don't expect everybody to agree with this – but the most important from my perspective is the transfer of power. And so by this I mean decision-making function which is usually the prerogative of the executive or administrative government. And so, we've seen in the modern treaties in British Colombia the transfer of decision-making power, for example to decisions about child protection at first instance, the First Nation gets to make those decisions. Decisions about planning on First Nation land, decisions about environmental protection, cultural protection. So, the treaties would require some, in my view, some transfer of power and ideally that would take some level of self-governance. Not just loose amalgam of powers under some view of self-determination but rather self-governance.

Marcelle Burns: Thank you. So, I mean you mentioned historical grievances do you think treaties are an effective way to resolve those historical grievances?

Tony McAvoy: Well, we don't have any at the moment so…

Marcelle Burns: [laughs] we’ll see. 

Tony McAvoy: They’re [treaties] better than what we've got. So you know, there is some capacity to resolve some grievances through the native title process and we've got the reserve decision in the High Court at the moment in relation to the Yunupingu matter which is the compensation claim on the eastern Arnhem Land where the Commonwealth has argued that the right to compensation for native title doesn't go against it in the Northern Territory after the transfer from South Australia of responsibility back to the Commonwealth in 1911. It’ll be an interesting decision. We've seen class actions where unpaid wages and damages for Stolen Generations have been successful. But we also look overseas, and we know that in India, in the West Indies, in Africa, in African countries, there are many complaints against the European colonial governments for compensation for the genocide and broad dispossession and ethnocide I suppose in those places. And the amounts of money they're talking about in those places is significant because of the extent of damage to communities as we know here through the colonial processes have been extraordinary. So I should say, and I probably should have said at the outset, that in the time between when I was asked to sit on this panel and the panel arising, I have been appointed to the Australian law Reform Commission as a part-time Commissioner to review the Native Title Act the future act regime of the Native Title Act and I should say that the views expressed here tonight are my own and they are not to be attributed to me in my role as a Commissioner of the Australian law Reform Commission. Thank you, Marcelle. 

Marcelle Burns: Thank you. Did anyone else have something to say?

Lindon Coombes: I was just maybe going to pick up a little bit on the power and powerlessness that you mentioned at the start, but firstly acknowledge the traditional owners and thanks for having me here, the Gadigal people. I acknowledge their defence and care of this country and its waters. So as, I guess a non-lawyer when we talk about treaty and yes, Tony was my first boss, over 25 years ago and I won’t be getting another new profile picture, I got one five years ago and that's as good as I'm going to look, so that's staying. But yeah, I guess, and learning from Tony at that time when native title was all very new and a whole range of land rights issues, what I always resented was that no matter how smart, how strategic, how organised, we were there was this imbalance of power. And it's bugged me to this day, and I know that there are technical components to treaty, but for me it provides a framework, where you know the power is more equally distributed and shared. And I guess, you know on the anniversary of the Referendum, you know there's only so much soft influence and organisation can do to you know move things politically and in other ways, but I think that experience taught us to go back to a rights-based approach, you know and get really solid on that and start having a new more equal discussion.

Marcelle Burns: Yes certainly. Balancing the playing field would be a welcome thing to see through the treaty processes. Shane, can I ask you, so the New South Wales government was elected on a platform to consult on treaties in New South Wales. Can you give us an update on what's happening in that space please?

Shane Hamilton: Yeah, good evening, everyone, Shane Hamilton. I'd also just acknowledge country, that we're on Gadigal country. I want to pay my respects to their Elders, both past and present. So, the government has committed to appoint three Treaty Commissioners and to undertake a 12-month consultation. We've done the first step in that in appointing three Treaty Commissioners. We established an independent panel to oversee that process of the selection of Treaty Commissioners and Dr McAvoy was one of those people who assisted us. And the work we've done internally at Aboriginal Affairs is to essentially get ready, I guess and one of the first things we've done is to, I guess prepare or do an analysis of what's happened in other jurisdictions, what have been some of the challenges, what's been some of the pitfalls in that whole treaty process, how each jurisdiction has gone about that, what are the learnings from overseas. So that one does two things: it assists Treaty Commissioners as they start their roles, but it also gives us a good idea of what those issues might be and then trying to put those in a New South Wales context. We’ve also tried to, because there's a sense that it's going to fix everything and of course one of the things that we've learned, of what we've seen so far in Australia is that you know Victoria has been on this journey for quite some time, a number of years and they're not at that point of negotiating a treaty yet as I understand it and other states like Queensland are in early stages as well, although they've been at it for a couple of years. So, we're right at the very beginning of that and we've tried to not stop any but to just, the most important bit for us post the Referendum is making sure that the process we undertake is culturally safe, and that the community is ready to have that conversation. And again, what we learnt through the Referendum, what we've learned through other jurisdictions undertaking these consultations, ensuring that the voice of Aboriginal Torres Strait Islander people comes through in those consultations, because the government's asking in question, one: what do they think should be in a treaty, how do they think that treaty process should take place, what are their thoughts about agreement-making and all the points that have been raised no doubt. We've heard this from many Aboriginal people already so some of that's going to come through. But the government is trying to establish the process through the Treaty Commissioners to be able to have that conversation and that consultation to get Aboriginal people's views on how they see that treaty. And then a final report into that. So it's really, I would say, early stages of any sort of processes, just to engage with the community to understand their needs, but to do that in a way that, one tests the readiness of them to have that conversation, because it's not as straightforward as we would undertake. Other consultations it's very different and I would argue that we're going to get, you know we get one chance at this, and we've got to get it right. 

Marcelle Burns: Thank you. Yeah, I was just wondering from what you said, any particular lessons that stand out from other jurisdictions that will inform the work going forward?

Shane Hamilton: Yeah well, we're actually working with Lindon [Coombes] and Jumbunna on that, and we've done a paper on that very thing, of understanding what's happened in other jurisdictions and what are some of the pitfalls. We've had some conversations, in fact even this morning just having a conversation with my counterpart in Victoria to understand some of the ways and the challenges they had in Victoria when they started the process. The utilisation of the way in which they communicated and the establishment of m a website where people could have their say to try and ask their questions of what they understood, what they didn't understand, people that didn't necessarily agree with who wanted more information to a place that where they could go and get that information, it seemed to work quite well for there. I mean they did say, look you know we learned lessons, we didn't get it entirely right. There's something to be said I guess about maybe going last—

Marcelle Burns: Going last yeah [laughs]

Shane Hamilton: —you get to learn all those things. So, you know we're being very mindful of creating the right environment and we saw, you know we know our communities are still hurting from the Referendum process so we're very conscious of that and so it's that testing that readiness of community. I think you know the principles of free and prior informed consent are really important in that process as well.

Marcelle Burns: Yeah certainly, people are still impacted from the Referendum, and you know, may be a bit weary of engaging with governments going forward. just to pick up on a point you made there, I was going to ask this question to Lindon, but either of you are welcome to answer it. You talked about treaty readiness. Do you have any sort of thoughts about whether Indigenous peoples in community are treaty ready at present?

Shane Hamilton: To be honest I don't think we've tested it to be able to give a really good answer on that. I think there's more work to do. I think that's the first bit of work we should contemplate doing is testing the readiness before we get into the real deep discussions about treaty and consultations. And of course, we, you know, we've been very mindful that we've engaged, we've pointed three Treaty Commissioners as independent. So we've kept, as the bureaucracy, our arm’s length from that process, both from the selection but also the way in which they should go about doing that and our advice to our minister is there's not much point of appointing three independent Treaty Commissioners if the government's going to dictate how that should happen and so we've been really at arm’s length from that. And I think that's a really important process and for us to have that integrity in the process to ensure that there is that independence from Treaty Commissioners, we've been really mindful of that and continue to be so. 

Marcelle Burns: what about governments do you think—

Tony McAvoy: Can I just add something?

Marcelle Burns: —Yeah, sure Tony.

Tony McAvoy: In terms of treaty readiness, my observation from having worked in the [Northern] Territory and Queensland and doing a lot of work in Victoria and with the Yoorrook Justice Commission, and having lived in New for almost 30 years, is that in all of those jurisdictions, there are Nations and communities who are really, very advanced in their development and readiness for this type of discussion. There are others who are really struggling and that will be the case for a long time, and we need to remember that in Canada, in British Columbia, of the 150 First Nations in that province, I think only 60 are involved in the treaty process. But that doesn't diminish the validity of that process, and whilst it's important to understand how ready groups are, it shouldn't be a measure of either success or how quickly or slowly we should move. There will always be the need for support for First Nations engaging in the treaty process. I'm sorry for interrupting. 

Marcelle Burns: That’s Okay. 

Lindon Coombes: Can I just add a little bit on that? It's a question that I'm really conflicted on, which I shouldn't say to my client when we've just given you research paper on it. But, you know, sort of originally, I came from a position of “do no harm” and “cultural safety”, and this needs to be, you know, “nice and slow” and “it's a very complex process” and a kind of a range of things like that. But I don't know if it's because I'm getting older, and it's obviously not about me, but there are groups out there that are very ready—are passed ready—they've been ready for a long time. And yeah, the more I think about this, it's more like a full core press, where there will be people ready, there will be risk moving with that, but there's risk in not moving, there's risk in losing people and connection, the whole range of things. So, it's a very tricky one, but like, yeah, I think I've taken a range of positions on that, but at the moment I feel like we do need to push, just a little bit.

Marcelle Burns: And what about governments? do you think governments are ready for taking up the challenge of what treaty-making really means?

Shane Hamilton: Uh, no. It’s a short answer. I think that there needs to be a, when we think about community readiness, I think we need to test the readiness of government as well. And I think that should be part of the process, to be honest. You know, there's been different mechanisms, different ways of which we've tried to have that Aboriginal Voice, through different organisations and legislation. You know, ATSIC (Aboriginal and Torres Strait Islander Commission) was one of those, you know, Lindon’s a CEO of the former organisation, and was defunded, as was ATSIC. You know, local decision making, Closing the Gap. There has been those structures I guess, but the fundamental, I think there's two fundamental differences in those: one's not a legally binding agreement, and the shift of power is not as you would expect it to be in the context of a treaty that Dr McAvoy was talking about. So yeah, I think there’s a readiness piece for government as well. 

Marcelle Burns: Being ready to transfer power, perhaps, yeah, and what that might look like. 

Harry Hobbs: If I could say something as well, I think I agree with that. I think you're obviously a better place to talk about New South Wales. I think the word ‘treaty’ obviously carries a lot of expectations about what it might be and what it might mean, it isn't just a local decision-making agreement, again it isn't just something like that, right it's something significant, and I think there is a concern that governments aren't necessarily aware of what they're opening the conversation about, and whether they want to follow it and see where it goes. You look at the range of processes that have happened around Australia, and in all of the consultation reports I've read, you see Aboriginal people, Torres Strait Islander people saying, you know, “the word ‘treaty’ means something, are you sure you want to have this conversation?” and often what the first stage of what it looks like, it ends up looking something like a service-delivery agreement again or something like a self-management type program, rather than something substantive, something that talks of the sharing of land and governance, and I think that's kind of a concern I have with the New South Wales process as well. Primarily just because we're starting now, whereas Victoria would have had a similar concern 10 years ago when they started their conversations. So, you know, hopefully over the next 10 years, people like Shane can do more work internally to try and help change the conversation in government and in [NSW] Parliament about what a treaty might mean. 

Shane Hamilton: Yeah, I mean, look the people want to go straight to solutions. And I think Aboriginal people want to have a very different conversation as that starting point conversation. It's not a, they don't want to talk surface-level agreement, and that's going to get us to where we need to go. I think it's deeper than that but I guess that's the whole, which is why, I'm not going to say dampening it down but dampening the expectation that bureaucracy thinks that it's going to solve the problem instead of understanding, exactly the point you're making, about treaty and then considering it in that light around what they need, what aspects they would need to change in order for it to work, yeah. So, don't think of it as “you're going to do this piece of work” and that's going to solve that problem, we'll have this agreement and then away we go and we'll just, you know, it's, I think it's deeper than that, but that's the whole idea of doing the work with this initial piece of work to understand it from Aboriginal people's perspective. But there's obviously a part for government to consider, yeah. 

Marcelle Burns: Yeah, I mean it's like the treaty is the end goal, but the process is also really important in terms of rebuilding relationships and creating trust, yeah between the parties. Thank you. Okay so, sort of got free reign, so Tony I just want to ask you, can you tell us a bit about your experience in the Northern Territory as acting Treaty Commissioner and what were the community's expectations there about what treaties could achieve?

Tony McAvoy: Thank you, Marcelle. Some of you will recall that in 2018, Michael Gunner as the Chief Minister for the Northern Territory entered into an agreement with the four statutory land councils in the Northern Territory: the Tiwi Land Council the Northern Land Council, the Central Land Council and the Anindilyakwa Land Council with Groote Eylandt. That agreement was called the…slipped my mind, I'll come back to it. 

Marcelle Burns: Barunga?

Tony McAvoy: Barunga agreement, thank you. And as a result of that, in 2019…sorry I should say that that agreement, they agreed to enter into a process to determine whether a treaty was suitable and appropriate for the Northern Territory and what it would look like, an agreement to appoint a Treaty Commissioner. There was also an acknowledgement in that agreement that the First Nations of the Northern Territory had not seeded their sovereignty, and then in 2019 Mick Dodson was appointed as the Treaty Commissioner. In 2020, there was legislation wrapped around that appointment, his appointment as commissioner. In June 2021, he resigned and in December 2021, I was appointed for a six-month period with a view to delivering the final report in June the following year, so June 2022. I didn't do the consultation. The consultation was all done by the Treaty Commission staff, the Deputy Treaty Commissioner, and the Treaty Commissioner and they went to over 100 communities. They engaged in consultation with youth and eldest groups, Community Justice groups, land councils. They did a fantastic job, and overwhelmingly there were some real lessons to be learned. One is that people wanted a First Nations-based agreement process, settlement process. So, it wasn't always expressed in that way, but it was on the basis of the people who were the Traditional Owners for the various places in the Northern Territory. The second thing that was noticeable from the consultation is that people were still deeply grieved by the removal of the community councils in the Northern Territory in 2008. Following the commencement of the intervention in 2007, there were, all of the community councils were dissolved into—there was some 80-odd I think—they were dissolved into super shires and all of the control for communities was lost to the regional centres, and it's largely still the case today, there are nine regional councils outside of the major cities and towns and that's it for the whole of the territory. The third thing that was very noticeable from the consultations was that people were very supportive of a truth-telling process and the need to get the record straight. And those three items really informed a lot of the development of the recommendations that were included in the final report of that commission. So the report recommended that there be a process of recognition of First Nations under a new treaty and Truth-Telling Commission, and that those First Nations could then convert to um a form of local government authority, and that they would carve out that authority from the existing regional councils and be able to enter into agreements directly with the Territory government and with the Commonwealth government for funding, and that there also be a truth-telling component which focused initially on evidence from the elderly. What happened—I'm not sure whether you’re asking me what happened with that—but what happened was there was no real formal response to the report, which was I delivered to the government on the 8th of June. There was a response to it on the 29th of December that year [2022] from recollection, in which they said that they weren't going to set up a new commission and they set up a directorate within the government agency and it really was on a go-slow, and this year, the lead up to the Northern Territory Election, the leader of the opposition Lia Finocchiaro said that the CLP did not proceed with the treaty or truth-telling processes in the wake of the Referendum. They're not connected in that way, but that's how it would have happened. 

Marcelle Burns: Yeah, so we can see the Voice Referendum has had a negative impact in terms of government commitments to treaties in some places, yeah. 

Tony McAvoy: Certainly. It's having all sorts of ramifications. It's a part of the Queensland Opposition's election campaign that they will abolish the Path to Treaty Act in Queensland, they will appeal it. So, the truth telling process that is underway there by way of inquiry really has an axe hovering over it at the moment and are continuing on. And I think it's fair to say that in other jurisdictions, the governments are nervous about the way in which the certain parts of the media have been responding to um the notions of self-determination and, you know, this mantra that the defeat of the Referendum question was the defeat of self-determination, the principles of self-determination. Notwithstanding, they are concepts which have been agreed to by the Federal government in terms of endorsement of the United Nations Declaration on the Rights of Indigenous Peoples. 

Marcelle Burns: Yeah. Okay, I think that's a good segue into my next question. So, when the Federal Labor government was elected in 2022, it made a commitment to implement the Uluru Statement in full. So today, so far, we've seen the Referendum on the Voice to Parliament, which was unsuccessful, but no specific commitment to federal treaties. For the whole panel: do you think the federal government has a role in treaty making?

Harry Hobbs: I think it certainly does, yeah. I mean, just to think we're a federation, so the Commonwealth Parliament has certain powers over certain matters, the state governments have powers over certain matters too. So, a comprehensive agreement that will cover all of the particular aspirations of Aboriginal Nations, Torres Strait Islander Nations would need to have both sides, or both levels of government involved. I think certainly it's true that people have said that after the Referendum the government at the federal level and the state and territory level become less interested in this. The Federal Governor said that they're not going to pursue a treaty or truth-telling process, they’re going to leave it to the states. You know, I grew up in Canberra, so I wasn't ever a big fan of the Federation, but there was a good reason for it, I suppose in many ways, in one way is that other governments can get on with it. And so, Victoria has been pursuing it and they're supposed to open the first negotiations next month, and New South Wales is pursuing it as well, right, and if we didn't have a Federation, that it would be an absolute stop. So, the fact is that some states are pushing forward, they are at different levels, at different sort of levels in the process I suppose and different levels of commitment I think it's fair to say. But they can hopefully push other states, other governments, other jurisdictions forward, because, you know, I always think if Victoria’s doing something, why can't we do that right? If it's good. 

Marcelle Burns: Yeah, and just on that point—

Tony McAvoy: Sorry, I was just going to add—and maybe you were going here anyway Marcelle—that I think, you know, for our Nations, for our first peoples in this country, we have been through the um native title litigation processes for the last 30 years, going into another round of negotiations with the state and then with the prospect of that some other stage going into negotiations with the Commonwealth. I think it's unfair to expect us to do treaty negotiations twice, and really that, if there was any fairness in the process, it would involve us negotiating once with all the relevant levels of government to ensure that we get a proper settlement. You know, Venice doesn't always come to the surface, does it? 

Marcelle Burns: Or common sense. Yeah, I mean, you did mention in your report how there could be tripartite agreements between First Nations, state and federal governments, which would seem to be a sensible way to go. Okay, so—how are we going for time? Five? Yeah, okay cool—just a question for everyone: what if there are disputes over the interpretation of treaties? How do you envisage that disputes would be resolved within the nation-state [Australia]?

Harry Hobbs: I'm happy to speak first. I think you can look at what happened in Canada, where modern treaties are ongoing. I think it isn't fair necessarily at the start to say if there's a dispute about a treaty, it should be resolved by a state court, by an Australian court, because that would be operating within a singular legal system, right?  treaty is an agreement between two or more political communities, two or more political and legal communities to have certain promises and act in a certain way. So, you'd think that as a matter of fairness, the first step would be determined by a body, in arbitration perhaps, so a body or a tribunal that’s set up through the treaty process itself that would have Indigenous and non-Indigenous members on it, and that would be the first way that it would be resolved. If it gets to a legal—right obviously the whole point is that this is a relationship and so you want to talk with government and hopefully that you can avoid any legal challenge to begin with—but you'd expect that through the treaty—it acts a bit like a contract, a private agreement—then there would be an arbitral body that would decide what happens. In our constitutional system, that would then need to be, or would be allowed to be, appealed to a court system, to our court system. You would hope that a losing party perhaps wouldn't do that, to maintain the spirit of the agreement, which is that would be done through the treaty process. That doesn't always happen, and certainly in Canada, there are many treaty processes that go to a court system and go up to the Supreme Court even. So that is likely to happen at some point. The other question I have is how would the court then interpret the agreement, right? Again, we have no history of this, and so would the court interpret it like it would a normal contract and apply ordinary contractual rules? Would it interpret it as a constitution, because it is a constitutional document, or has a constitutional character which would then interpret it in a more liberal and generous way? So, there are lots of different ways to think about that, but I think as a matter of first instance, it should be determined by the parties itself. 

Marcelle Burns: Yeah, okay, but some independent body that could adjudicate disputes.

Harry Hobbs: Yeah. And I think this is what happens in Canada, and I think Victoria are doing the same thing as well through their Treaty Authority, which acts a bit like an umpire at this first stage.

Lindon Coombes: Yeah, some of the advice in the international forums that I've been part of and look with envy at countries with treaty, in the US and Canada and New Zealand, and so you've got a treaty and their initial advice is sometimes “be careful what you wish for” and then when I follow it, there seems to be, you know issue after issue referred to the Commission in New Zealand and in all the other places, so… but again, it sort of comes back to the framework. Of course there's going to be an ongoing, you know tussle for that, but again, at least you have the framework, but I think Shane was saying, you know, treaty is not going to solve everything. It’s just going to create, hopefully, better quality of problem.

Marcelle Burns: A process to deal with it, yeah. And so, like, in New Zealand with the Waitangi Tribunal being able to resolve disputes and the ongoing interpretation and reinterpretation of treaties over the years. Okay, so I think we're just about on time, but just any concluding comments.

Tony McAvoy: If I might just briefly say something. Following on from Lindon's comments, we're seeing the attacks on the Treaty of Waitangi and the Treaty of Waitangi tribunal in Aotearoa, and one of the observations I think that can be made, and it really needs some further research, but it seems to me that having had the Royal Commission on Aboriginal Peoples in Canada, that truth-telling process that they engaged in at a national level really shifted the dial a little, to the extent that some of the things that shouldn't be re-contested all the time are not so open to re-contestation. And what we're seeing today in Australia, without a truth-telling process that's been undertaken on a national level, I think is the re-contestation of things that we thought, following the native title process were fairly settled. And so, we're having to justify the notions of self-determination, we're having to justify things that we thought were historically, fairly well accepted, and I the point of saying this is that I really have come to understand, particularly through my involvement in Victoria of the immense value in undertaking truth-telling processes in order to provide the proper foundation for treaties. 

Marcelle Burns: Okay, thank you. Any further comments? Shane or Lindon? 

Shane Hamilton: No, I think taking the first steps, like so the commitment, if you think about New South Wales’s commitment of appointing three Treaty Commissioners and undertaking a consultation with people, at some point, at the end of that process, an analysis of how the next step should proceed. And I think probably, taking a lead from Victoria have done that in a reasonably measured way to get to the point that they're at now, and I think that's probably the—given that the environment's probably changed slightly post the Referendum from when they started their process. So, I think it's at the end of the first stage—or first step if you like—before you proceed with the next steps, because it is also, it might be a readiness to test if the community is ready to have the conversation—

Marcelle Burns: Yes.

Shane Hamilton: but the next test might be the readiness of the broader state—

Marcelle Burns: Yeah.

Shane Hamilton: and others to have a conversation about treaty and what it means. Because, you know, I think maybe in hindsight from a Referendum perspective, we needed to talk more and get a better understanding in the broader community around what a Voice to Parliament would really mean.

Marcelle Burns: Yeah.

Shane Hamilton: In fact, the whole, you know, Statement of the Heart. So, it's sort of, without again, you know, cautioning “great we've done this, next step's this next step's that” you'd hate to think that we'd get somewhere down the track and the whole thing just unravels. So, yeah. 

Marcelle Burns: Yeah, measured steps.

Shane Hamilton: Yeah, I think so, yeah.

Harry Hobbs: I agree with that. I think the challenge, we often look at Canada, the process in Canada has been driven by constitutional reform in the courts over there right? So, it hasn't been driven by governments willing to take this first step. In Australia, it's different. It's been driven by democratic politics, governments saying we're going to do this. That has a lot of advantages, it means hopefully the community can carry it through challenges, but it also means that without the impetus and the guard rails that judges can set up from time to time, a government can walk away from it.

Marcelle Burns: Yeah.

Harry Hobbs: And so, it is that challenge of biting off a little bit, making progress, ensuring you've got a broad base of support, and then doing the next step, and Victoria has been really successful, partly because they've been at it for a long time, but partly also because it, to be fair, I think the government, it hasn't been their priority in many respects, right? They've done a lot of other things and they've been able to maintain a winning formula to keep securing elections, which means that they can do this alongside it, and they can get enough done that it looks like they're making good progress. So, it's in two minds right. Government wants to be able to talk about it tell a good story about what they're doing, but I think the Referendum shows that you don't maybe want to highlight it too much because then you might risk a backlash. And Victoria has been able to thread that needle. The challenge is a lot greater in New South Wales, because we're doing it after the Referendum. But it is something obviously that, I know you must be thinking a lot about. 

Marcelle Burns: Yes, making sure the political will of the people's there to support the process to make it sustainable going forward. Okay, well I think that's all we've got time for tonight, but I’d just like for you to join me in thanking our panellists. Everyone's incredibly busy, so I appreciate you giving up your time to talk with us today, so can you join me in thanking them please [clapping]. And I'd also like to thank Shellee Murphy-Oates and Crystal Meikle for putting this event together. Yeah, it's been great working with you both and Anthea Vogl, who's the director of our Brennan Program, for supporting this idea as well, so thank you both. Okay so, we've got refreshments outside if you'd like to join us and we have...sorry.

Hugh Watson: Thank you very much, my name is Hugh Watson, by way of introduction. I'm the First Nations Representative to the UTS Law Students’ Society. Yeah, just vote of thanks on behalf of the UTS Faculty of Law and the UTS Law Students’ Society, I would like to extend our deepest gratitude to Dr Tony McAvoy SC, Shane Hamilton, Professor Lindon Coombes and Associate Professor Harry Hobbs for generously taking the time to share their expertise and advice into the current treaty-making processes taking place around Australia. We have been so very fortunate to hear your insights, and I know I speak on behalf of all attendees when I say that this evening's discussion has enriched our understanding and opened new avenues for thought and action. We are truly grateful for your dedication to this critical issue and for sharing your wealth of knowledge with us tonight. we just have a small token of appreciation to thank our incredible panellists for their insights [gifts handed to panellists].

Marcelle Burns: Thanks for coming along, thanks for everyone online, thirty or forty people online. So, we have a lot of people participating. Oh sorry, thanks everyone, it's great to see so many people interested in the topic thank you. [Applause]