‘Domestic dependent nations’: Treaty report proposes self-governing and law making for Territory Indigenous groups

by | Jun 29, 2022 | News | 0 comments

The establishment of First Nation Governments that would allow individual Indigenous groups to be self-governing and law making as ‘domestic dependent nations’, as well as a Treaty and Truth Commission, and an Aboriginal Ombudsman, are key recommendations made in the Northern Territory Treaty Commission final report released today.

The document, which Treaty and Local Decision Making Minister Selena Uibo said would not be officially responded to until the end of the year, said the government would need to develop a Treaty and Truth Commission Act 2022 to act as the legislative basis for negotiating the Territory-wide agreement, along with setting up the Treaty and Truth Commission  to “progress truth-telling work across the NT” and practically support First Nations prior to and during the Treaty negotiation process.

Ms Uibo said the government would provide an interim response when the report was tabled to Parliament during the July sittings.

In his report Acting Treaty Commissioner Tony McAvoy stated that by the end of this financial year the Commission must have been established with all positions filled, and the inaugural First Nations forum been held and a First Nations representative body begun to be established.

“Treaty-making will take a long time. Usually, implementation will occur at least a decade after the start date of negotiations,” the report said.

It is therefore important to consider how to make negotiations as fast as possible – without compromising their effectiveness – while ensuring that First Nations find the process itself rewarding.”

The report proposed representative First Nation Governments be established to assume powers of self-government and represent local Indigenous groups or coalitions of groups, in Treaty negotiations. The report said the Treaty process must allow for the negotiation of many Treaties in the NT, overseen by a broader Territory-wide agreement.

And that parties to the treaties must be First Nations – or coalitions of First Nations – with the NT Government, and the Federal Government where possible and appropriate.

“We see a time when three orders of government will be in place, with Aboriginal governments exercising sovereign powers in their own sphere,” the report said.

How it would be established and work

The report said the Treaty and Truth Commission Act 2022 would provide the overarching legislative basis for the Treaty-making framework.

And it proposed the NT Government set up an Office of Treaty Making to represent the government in Treaty negotiations. And through a First Nations Forum, all NT First Nations
would set the treaty direction and representative model. The forum would endorse a NT First Nations representative body, and endorse the treaty making framework, including appointing a TWA negotiating team, representing First Nations in Treaty negotiations.

The Treaty model would decide how First Nations should be represented politically, including the negotiation of a Territory-wide agreement. Membership of the forum could
comprise, but would not limited to, members of the land councils, Aboriginal peak organisations, and suitable First Nations local representative bodies, such as Larrakia Nation Aboriginal Corporation, Lhere Artepe Aboriginal Corporation, and other First Nations representative bodies from across the NT.

The First Nations TWA negotiating committee and the Office of Treaty Making would negotiate a Territory-wide agreement, which would set out minimum standards, mandatory
obligations and key principles that will guide all subsequent Treaty making negotiations.

Each First Nation would seek official recognition from the Treaty and Truth Commission, which would then make that group ready to negotiate a Treaty with the NT Government.

The First Nation Self Government Act 2022 would enable the transition to First Nation self-government in non-municipal areas. And amendments to the Local Government
Act 2019 would support the FNSG Act, and provide greater opportunity for First Nations decision making in municipal areas.

The Treaty and Truth Commission would be set up to support the Treaty negotiation process with two functions. The truth telling aspect would record the stories of historical and current injustices to ensure the Treaty process is informed by mistakes of the past.

And the Treaty support function would oversee: see the establishment of the First Nations forum; the First Nations move towards self-government; the Territory-wide agreement
process; treaty negotiation processes; dispute resolution; and capacity-building.

The First Nations or First Nation coalitions would negotiate individual Treaties with the NT Government. The report said the First Nations choose to follow the six step negotiation process recommended by the Treaty Commission to guide this process. This would then result in the finalised treaty and the implementation.

During Treaty implementation, dispute resolution would be managed by an Aboriginal Ombudsman and a NT Treaty Tribunal.

An amendment to the Ombudsman Act was suggested in the report, to create an Aboriginal Ombudsman position.

“It is envisaged the Aboriginal Ombudsman would be expressly responsible for responding to complaints regarding government participation in the Treaty process, but also have a role in receiving and considering any other complaints particularly relating to First Nations people and the government,” the report said.

“First Nations will not be required to raise a matter with the Aboriginal Ombudsman prior to progressing it to the First Nations Treaty Tribunal.”

The report proposed the TTC would have five Aboriginal commissioners. Three commissioners would be nominated by land councils, one would be nominated by the NT Government, and one would be nominated by Aboriginal peak organisations. The five commissioners would elect a full-time chair, with the remaining four being engaged on a part-time basis.

To preserve the integrity of the Treaty-making framework and to retain the trust of First Nations, it is important that the independence of the TTC from the NT Government is legislated, preserved, and respected,” the report said.

“The TTC will be an independent body and represent First Nations interests to the NT Government minister responsible for progressing Treaties.

“To avoid actual, or perceived, conflicts of interest, the minister responsible for the TTC must not be the same as the minister responsible for the OTM.

The TTC will not have a role in implementing Treaties, nor will it be involved in dispute resolution beyond the point at which a Treaty is signed, the report said. But the. First Nations representative body would be a body tasked with engagement with the Legislative Assembly in relation to laws and policies affecting the rights of Aboriginal Territorians. The report proposed the body could be established or endorsed by NT legislation which could confer upon it delegated functions and powers.

A First Nations Treaty Tribunal would deal with disputes at any time in relation to First Nation membership and boundary; and after treaties are executed, in relation to Treaty
performance.

The Tribunal will have powers to: conciliate and arbitrate disputes between parties during Treaty implementation or post-Treaty implementation; make findings of fact; make recommendations for dispute resolution; and make determinations.

The costs

The report proposed the Territory Government create a Treaty making fund to pay for various components of the Treaty-making framework. It would pay for: pre-Treaty calls for funding; anticipated to commence from 2024; provide grants to First Nations to navigate the self-government process and support their official formation; and provide funding to mediate disputes between First Nations; during Treaty negotiation, calls for funding anticipated to commence from 2027; provide grants to First Nations to negotiate Treaties; Post-Treaty, calls for funding anticipated to commence from 2035, provide grants to support ongoing First Nation Government operational costs; and administer the delivery of cash compensation.

The report proposed that to finance the NT TMF and a compensation fund, the Commonwealth and NT Governments will either have to redirect money from consolidated revenue
accounts or another existing source.

“They could also raise an additional amount as a new tax or levy for the purpose of meeting its obligations to the Treaty-making fund. Consolidated revenue is the
typical source of comparable funds in Australia such as the Aboriginal and Torres Strait Islander Land and Sea Future Fund, Queensland Treaty Fund, and Noongar Boodja Trust,” the report said.

It said it could also be funded by a development levy, the establishment of a land bank, or formal resource sharing agreements.

The report gave no estimates of the costs for the treaty process or the cost of compensation.

The sort of powers would First Nations have

The report said there would be a gradual transition to self-governing to allow capacity and confidence to grow but law-making would be subject to agreed legal limitations.

First Nation Governments will, in-line with the United Nations Declaration on the Rights of Indigenous Peoples minimum standards, have both shared and exclusive jurisdiction over matters within the boundaries of their traditional land estates,” the report states.

“The extent of those powers will, ultimately be determined through Treaties.

“They will have the power to make their own laws, within an agreed jurisdiction, and subject to agreed legal limitations – some of which may be re-negotiated and changed as part of the treaty-making process.

“Under the proposed Treaty-making framework, First Nations, or where appropriate coalitions of First Nations, will take on self-governing authority gradually, allowing them to build confidence and capacity.”

The report said that at first the governments should first have the full range of powers currently available to local government but over time take on a wider range of responsibilities according to any agreements reached between them, the NT Government and, hopefully, the federal government.

“Ultimately, First Nation Governments will have a broad range of powers and responsibilities and will be able to exercise their own law-making power, and the Treaties should
accommodate the ongoing progression towards greater degrees of self-government over time,” the report said.

The transfer of power must accord with the capacity, community aspirations, and priorities of the relevant First Nation.”

You can read the Treaty Commission Final Report here.

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