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Following the Voice referendum, treaty processes have slowed or lost bipartisanship in every state and territory. At the federal level, Anthony Albanese’s promised Makarrata Commission has been left moribund. By Mike Seccombe.

Treaty hopes under a ‘shadow’ in wake of failed Voice campaign

A smoking ceremony outside state parliament.
Victorian National Party leader Peter Walsh (right) and then Victorian Liberal Party leader Matthew Guy take part in a smoking ceremony outside state parliament on June 22, 2022.
Credit: Facebook

Wednesday, June 22, 2022, was a historic day in the Victorian parliament. The gallery was full of Indigenous campaigners and standing orders were suspended to allow the co-chairs of the nascent First Peoples’ Assembly to deliver powerful speeches, before the House set about passing legislation to take the state closer to a treaty.

There was never any doubt the Treaty Authority and Other Treaty Elements Act 2022 would pass – with just one dissenting vote. The smoking ceremony, the parade of First Peoples’ Assembly members into the chamber, the celebratory rhetoric from lawmakers before the vote, were all about emphasising what a big, generous-hearted bipartisan deal it was.

No speaker was more effusive than the opposition’s spokesman for Aboriginal affairs, the National Party’s leader, Peter Walsh.

“We want to walk across this land together with all of you to make sure that your aspirations, your desires and your wishes, are actually achieved…” Walsh said, “particularly for your children and your grandchildren.”

The historic wrongs done to Indigenous people needed to be acknowledged and righted, Walsh said. There had to be a process of truth-telling because “truth sets you free”. Indigenous people had to have a greater say in issues that affected them.

Walsh stressed the Liberal–National Coalition was on a unity ticket with the then Andrews Labor government on its move to advance a treaty, and decried the “myth that … only the Labor Party … will actually work with the Indigenous community on treaty”.

Walsh continued: “We are very supportive of that process. We want to be part of that process. If we are fortunate to have a change of government in November … we will continue that process. We want to work with you into the future. Again, I go back to what I said before: do not believe anyone who is peddling the myth.”

As it turns out, however, it’s not a myth after all.

This week, on Sky News, Walsh announced the Victorian opposition had decided to withdraw its support for a treaty.

Various reasons for the decision were subsequently given by him and Liberal Opposition Leader John Pesutto, from non-specific complaints of “secrecy” to dubious claims that delays in cultural heritage approvals were holding up housing developments, to suggestions there were better ways to go about addressing issues such as education, child protection and criminal justice.

Other comments by them both suggest the true rationale had little to do with the form or process of this particular attempt at finding a path to reconciliation with and self-determination for Victoria’s First Peoples, but centred on the whole idea of a treaty.

In a media conference on Monday, Pesutto said he had been “very concerned” to see how “traumatic” the debate around the referendum on the Indigenous Voice to Parliament had been. He didn’t want a re-run of that, he claimed.

“There are clearly risks around how our community will feel more divided,” he said.

On ABC Radio, Walsh said: “What is treaty? That’s the great unknown that people don’t know. Lots of people would say, ‘How can you have a treaty with yourself?’ Because we are all Australians.”

It was an old line, which has been trotted out by conservatives over decades as they sought to forestall agreements of the kind that have been made with the first peoples of so many nations, including New Zealand, the United States and Canada.

John Howard put the same case 24 years ago, speaking to John Laws on Sydney radio: “An undivided united nation does not make a treaty with itself. I mean, to talk about one part of Australia making a treaty with another part is to accept that we are in effect two nations.”

The superficial logic of such statements does not recognise the history of Indigenous dispossession or continuing disadvantage. Yet the politics of division worked for Howard and worked again for conservatives when they succeeded in defeating the Voice referendum last October.

In a matter of months, overwhelming public support for the Voice was winnowed away. The claim the Voice would be divisive became self-fulfilling. When the votes were counted, the proposal went down 60-40. It lost in every state and territory bar the ACT.

That defeat did not just put paid to the idea of a constitutionally guaranteed, democratically elected Indigenous body that could advise government. It also emboldened conservatives to oppose other moves towards reconciliation.

The very first commitment made by new prime minister Anthony Albanese on election night, May 21, 2022, was to implement changes called for in the 2017 Uluru Statement from the Heart “in full”.

That statement called not only for a Voice, but also a Makarrata Commission to supervise a process of “agreement-making” and “truth-telling” between governments and Aboriginal and Torres Strait Islander peoples.

Albanese was not the first prime minister to promise a Makarrata, or treaty. Back in 1988, Bob Hawke promised to deliver one by 1990.

The Albanese government opted to proceed first on the Voice, with treaty to follow. A skeletal Makarrata Commission was established, but since the referendum it has been moribund. As one disillusioned Labor adviser told The Saturday Paper this week: “You won’t hear anything from the feds about treaty at a Commonwealth level after the referendum. They just don’t want to fucking know. It’s dead. It’s dead.”

Before the Voice referendum, moves towards treaty were under way in six of seven Australian states and both territories, with Victoria by far the most advanced.

They continue but, says Associate Professor Harry Hobbs, the failure of the referendum has “cast a shadow” on future progress.

Hobbs, a constitutional and human rights lawyer specialising in Indigenous–state treaty making, tells The Saturday Paper the situation is most parlous in Queensland. It was the state that recorded the highest “No” vote in the Voice referendum – more than 68 per cent. Less than a week later, Opposition Leader David Crisafulli announced the Liberal National Party was withdrawing support for a treaty.

As in Victoria, says Hobbs, Queensland had been “slowly and steadily building institutions”.

Slowly being the operative word. The Queensland process began with a statement of commitment in July 2019, then proceeded through a working group, then an eminent panel, which made recommendations to a government, then a government response, then to a treaty advancement committee, which made further recommendations to which the government responded in August 2022. Then there was the Path to Treaty Act, which passed parliament last May.

As in Victoria, the LNP opposition voted for the bill, but now Crisafulli has promised to repeal it if he wins the state election this October.

Early indications are the LNP is likely to win. Furthermore, notes Hobbs, because Queensland has no upper house, “it’s harder to entrench things such that they will survive a change of government, so I think the process in Queensland is in real trouble”.

Ahead of the election, the current Labor government is pressing ahead with the next steps in the process: a First Nations Treaty Institute and a formal Truth-telling and Healing Inquiry to shed light on Queensland’s particularly brutal history of killing and dispossession.

Mick Gooda, a co-chair of the state’s Interim Truth and Treaty Body, which is working towards these goals, says even if the current government survives, “it will take four or five, six years before we see the first treaty”.

Gooda’s assessment of the conservative position is blunt. “I think the [federal] Liberals were really shitty with this mob up here for voting for the legislation. So they’ve put pressure on them to withdraw their support.”

He also sees the malign influence of the Murdoch media, which has a virtual monopoly in the state, and which has been running a long campaign highlighting crime involving Indigenous young people.

The result, Gooda says, has been a “law and order auction” in Queensland, in which both sides of politics have competed to be tougher on crime.

“If locking people up made people safe, Queensland would be the safest place in Australia,” he says.

“A housing crisis takes a fair bit of work to solve. The education crisis takes a fair bit of work to solve. The underlying issues around crime take a fair bit of work to solve. But to convince people that they’re unsafe is easy. That’s what Murdoch’s been doing.”

In contrast, devolving power and responsibility for those “practical things like fixing education, like fixing youth crime, all this stuff … that’s the sort of things you’d put in a treaty”.

Queensland has made significant progress towards a treaty, but it could all come to nought after the election.

The story in New South Wales is much easier to tell: nothing significant is happening. The conservative government, in office from 2011 to last year, “consistently refused to countenance treaty”, says Hobbs.

While the new Minns Labor government pledged $5 million in its first budget to a consultation process, Hobbs believes it has been “spooked” by the referendum.

“And they’ve said … ‘we will think about this and then we will decide what to do and we’ll take that proposal to the next election.’ ”

Tasmania, currently the only non-Labor government in the nation, is also slow-walking the process. Starting in 2021, it initiated a consultative process, and the subsequent “Pathway to Truth-Telling and Treaty” report recommended the establishment of a truth-telling commission and commitment to a treaty process.

A major hurdle, however, has been determining exactly with whom a treaty might be negotiated.

“Tasmania … has had challenges over Aboriginal identity, schisms within the community about whether someone is an Aboriginal person or not, has maintained some connection with Country or not,” Hobbs says.

“An Aboriginal advisory group has been appointed by the government, rather than elected by any sort of members of the community; there is another group who are refusing to take part.”

There have been similar problems in the ACT, the nation’s most progressive jurisdiction. In 2018, the government began consultations towards a treaty and in 2022 it established a $20 million Healing and Reconciliation Fund to support this process.

It also received a report advising that the Ngunnawal people, as the Traditional Owners of the ACT region, should be financially compensated.

The advocacy group ANTAR – formerly the Australians for Native Title and Reconciliation – describes what happened subsequently:

“The ACT government’s consultation and recognition of only Ngunnawal peoples was followed by considerable controversy due to their failure to acknowledge the Ngambri peoples as traditional owners of the ACT regions.

“Under the Human Rights Act, Ngambri community members litigated against the Territory government at the ACT Supreme Court. This resulted in a settlement with the Ngambri (Kamberri) people and a revision of the ACT Government’s Indigenous Protocol.”

Suffice to say, the process has been messy and arcane, and the ACT has some way to go yet along its “truth-telling pathways through advising culturally appropriate governance, mechanisms, and co-design of Voice, Treaty and Truth”.

South Australia’s progress towards treaty has been stop-start. It began under Labor in 2016, with a series of broad consultations with Indigenous groups, which led to a report and a “framework” and an agreement to “promote a legislative structure that enables the parties to enter in the Treaty negotiated between them”.

The process was abandoned after the Liberals won government in 2018, then restarted after Labor came back in 2022. SA Labor’s approach was similar to that of the federal Labor government, starting with a Voice to Parliament, with treaty and truth to follow. The first elections for members of the consultative group will be in March. The Malinauskas government appears to be both committed and secure in office, so further progress seems likely.

The Northern Territory started its process two years after South Australia, beginning with the signing of an agreement between the government and Aboriginal land councils in 2018, but then things went off the rails.

A Treaty Commission was set up and commenced operation in 2019 under Mick Dodson. Consultations followed, an interim report was submitted, and nothing happened.

Dodson stepped down in June 2021 and there was a six-month hiatus before a new acting commissioner, eminent Indigenous barrister Tony McAvoy, was appointed. A final report was delivered to government in June 2022 and six months later, just after Christmas, the government responded by abolishing the commission and declaring the process would start again.

Says one of those who worked with Dodson: “There have been suggestions over the past couple of weeks that the NT government is working to ‘re-enliven it’, but I’ve seen no details of how they plan to do it.”

Moving west, we come to the only jurisdiction with no treaty process in train: Western Australia.

Hobbs says that in place of this “they signed a number of very comprehensive Native Title agreements prior to the referendum”.

He describes these as “small ‘t’ treaties” because while they were not conducted through a formal treaty process, they resulted in “a lot of the outcomes that a treaty would contain”.

The 2021 agreement with the Noongar people, for example, covers 200,000 square kilometres of land and included a $1.3 billion package relating to land, resources, governance, finance and cultural heritage in exchange for surrendering Native Title rights and interests.

Back to Victoria, though, and the opposition’s bold move to oppose the process it had supported for so long. If there’s one place in Australia where such a strategy will likely backfire, it is there.

Kos Samaras, director of the political consultancy firm RedBridge Group, who has done work for the Victorian treaty council, suggests it will cost the conservatives votes.

“If you look at where the ‘Yes’ vote was strongest in the referendum, it was in all the seats which the Libs have been losing ground on over the last 10 or 15 years,” he says.

“If you look at marginal seats, the seats that will determine the next Victorian government, well, more than 50 per cent voted ‘Yes’.”

One of those seats is held by the opposition leader, John Pesutto. His efforts to protect his leadership from the party’s hard right might well prove disastrous for his party in general and him in particular.

Which would be a fitting irony, but not much comfort to Australia’s First Peoples, who have suffered so long the cynical politics of race.

This article was first published in the print edition of The Saturday Paper on January 27, 2024 as "The stalling treaties".

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