FINAL REPORT ON THE DESIGN OF THE ABORIGINAL REPRESENTATIVE BODY 2018

ABORIGINAL TREATY WORKING GROUP

2018 1 The artwork used on the cover and throughout this report is reproduced under a licence granted to the Department of Premier and Cabinet by the artist, Dixon Patten. Dixon created the pattern as an artistic interpretation of the Working Group’s role in consulting with community on the design of the Aboriginal Representative Body.

Artist: Dixon Patten Gunnai, , and Dhudhuroa Director, Bayila Creative [email protected] 0434 868 082 TABLE OF CONTENTS

Part 1: Introduction 4 1.1 Acknowledgement of Country 4 1.2 Co-Chair Foreword 4 1.3 The Aboriginal Treaty Working Group 5

Part 2: Executive summary and recommendations 6 2.1 Executive summary 6 2.2 Establishing the Aboriginal Representative Body 8 2.3 The Working Group’s final recommendations on the design of the Aboriginal Representative Body 8 2.4 Overview of the Community Assembly 10 2.5 The Community Assembly’s recommendations 12

Part 3: Designing the Aboriginal Representative Body 22 3.1 Where we have come from – Community leadership 24 3.2 Where we are now – Strengthening independence 25 3.3 Where we are going – Priorities for the next 18 months 26

Appendices 27

2018 3 1 INTRODUCTION

1.1 ACKNOWLEDGEMENT OF COUNTRY

The Aboriginal Treaty Working Group lands and waters, and pays tribute to their (the Working Group) acknowledges the Elders, past, present, and future. sovereign traditional owners of ’s

1.2 CO-CHAIRS FOREWORD

This report represents the culmination of the Hon Natalie Hutchins MP, for their two years of work towards treaty. To date, support, encouragement, and commitment our efforts have focused on reaching a final to self-determination. recommended design for the Aboriginal Representative Body, which will work in Finally, we would like to thank the Aboriginal partnership with government to lay the Victorian community for making their voices groundwork for treaty. This report outlines heard at forums, gatherings and treaty that design. It is the product of many hands circles across Victoria. We would like to thank whose contribution should be acknowledged. all Elders of our community, for leading us with their wisdom. And we would like to thank Firstly, we would like to thank the members and acknowledge our ancestors, who fought of the Aboriginal Community Assembly and struggled since the earliest days of for committing their time, knowledge colonisation to make this possible. and experience to producing the recommendations responded to in this report. Treaty belongs to all of us; it is part of the legacy we will leave for our children. There is We would like to thank our fellow Aboriginal a long way yet to go, but with the release of Treaty Working Group members, both current this report, at last we know the journey is well and former, for the enormous amount of and truly underway. work they have put into consultations and reaching a final design for the Aboriginal Mick Harding Representative Body. Co-Chair

We would like to thank the Government Jill Gallagher AO and the Minister for Aboriginal Affairs, Co-Chair

4 Final Report on the Design of the Aboriginal Representative Body 1.3 THE ABORIGINAL TREATY WORKING GROUP

The Aboriginal Treaty Working Group was • Janine Coombs and Jeremy Clark, established in July 2016 to consult with nominated by the Federation of Victorian Aboriginal communities on the development Traditional Owner Corporations of a representative body and to provide advice to community and Government on • Indi Clarke and Nikayla Bamblett, the next steps in a treaty making process. nominated by the Koorie Youth Council

The Working Group has collaborated with • Muriel Bamblett and Wayne Muir, Government to drive the treaty process, nominated by the Aboriginal Controlled engaging with Victorian Aboriginal Community Organisations representatives. communities on the design of the Aboriginal They are joined by four people appointed Representative Body. The Working Group by the Minister based on their personal has led 16 community consultations across experience and expertise, following an open Victoria. Community members have also Expression of Interest process: held treaty circles across Melbourne and the regions to seek the community’s guidance • Paul Briggs on how the Aboriginal Representative Body • Vicki Clark should operate and how it should represent community. The Aboriginal Representative • Aunty Di Kerr Body will work in partnership with the State to lay a foundation for treaty negotiations. • Geraldine Atkinson.

The Working Group has also worked in The Working Group will continue to guide sub-groups focusing on particular issues the treaty process in 2018 by acting in in the treaty process, including legislation, an advisory role to the Victorian Treaty the design of a Bridging Entity (now the Advancement Commission (VTAC) as it works Victorian Treaty Advancement Commission), to establish the Aboriginal Representative and the Community Assembly. These sub- Body. Jill Gallagher AO was Co-Chair of groups have volunteered their expertise the Working Group prior to her appointment to Government through regular as the Victorian Treaty Advancement additional meetings. Commissioner.

The Working Group currently includes: See section 3.2 for further discussion of VTAC.

• Eleanor Bourke and Mick Harding, nominated by the Victorian Aboriginal Heritage Council

2018 5 EXECUTIVE SUMMARY & RECOMMENDATIONS

2.1 EXECUTIVE SUMMARY

This report outlines the Aboriginal Treaty to the broader community through various Working Group’s final recommendations interactive channels. The Community to the Minister for Aboriginal Affairs on the Assembly deliberated over six days before design of the Aboriginal Representative presenting its final recommendations to the Body. These recommendations have been Working Group for consideration. 2 informed by community consultations and the Aboriginal Community Assembly to ensure Part 3 of this report contains a detailed they reflect the desires and priorities of the overview of consultations. See Appendix 1 Victorian Aboriginal community. for the full Community Assembly Report, including recommendations to the Consultation and the Working Group. Community Assembly From its deliberations, the Community Community consultations were held in Assembly produced detailed November 2016 and March 2017. The recommendations on the design of the November 2016 community consultations Aboriginal Representative Body for the asked participants at 10 locations around Working Group. Of the Community Victoria how they think the Aboriginal Assembly’s twelve recommendations, Representative Body should be designed and the Working Group has accepted seven, what its purpose, roles and functions should including both overarching recommendations, be. The March 2017 community consultations accepted in principle four, and marked one asked participants about the Aboriginal as requiring further consideration by VTAC. Representative Body’s entity structure and VTAC, which began operations in January how it will represent the community. 2018, will be responsible for establishing The Community Assembly was convened the Aboriginal Representative Body. Once in November and December 2017 to resolve established, the Aboriginal Representative outstanding questions relating to the Body will work with the State to develop the representation, governance and structure treaty negotiation framework, which will of the Aboriginal Representative Body. The guide subsequent treaty negotiations. Community Assembly was comprised of 31 Overleaf is a timeline showing the treaty Aboriginal Victorians, and was accessible process up to this point.

6 Final Report on the Design of the Aboriginal Representative Body THE PATHWAY TO TREATY

Since February 2016, the Victorian FEBRUARY 2016 Aboriginal Community has been on the Self Determination Forum held. journey towards treaty by working to design Victorian Government commits to a Representative Body. discussing treaty.

APRIL 2016 Self Determination Forum held across the state MAY 2016 Aboriginal Victoria Forum 1 JULY 2016 Creation of the Aboriginal Treaty Working Group NOVEMBER 2016 Phase 1 Community Consultations begin

DECEMBER 2016 Aboriginal Victoria Forum 2 Report back to Community on Phase 1 Consults MARCH 2017 Phase 2 Community Consultations begin and Treaty Circle Facilitator Training held APRIL 2017 Aboriginal Victoria Forum 3 Report back to Community on Phase 2 Consults SEPTEMBER 2017 Applications to be on the Community Assembly open NOVEMBER 2017 Community Assembly held

EARLY 2018 Report back to Community from Community Assembly Victorian Treaty Advancement Commission established 2018/2019 Representative Body to be formed TREATY 2018 7 2.2 ESTABLISHING THE ABORIGINAL REPRESENTATIVE BODY

Since it was established in July 2016, the This includes determining a treaty negotiation Working Group has guided community framework to guide negotiations. consultation and engagement to ensure the Aboriginal Representative Body is designed The Aboriginal Representative Body will not through a process of collaboration with negotiate treaty or treaties for Country. the Aboriginal Victorian community. The Negotiations may be carried out by those consultation and engagement process, as Aboriginal parties designated as eligible well as the role of the Community Assembly, under the treaty negotiation framework. Once are discussed in further detail at section 3.1. the treaty negotiation framework has been developed, the Aboriginal Representative What will the Aboriginal Body’s ongoing functions will be determined 2 Representative Body do? by the Aboriginal Representative Body itself. The Aboriginal Representative Body will Treaty negotiations cannot begin until function as a democratic body representing the treaty negotiation framework has all Aboriginal people in Victoria. The Working been developed. Giving the Aboriginal Group’s final recommendations on the design Representative Body partnership status with of the Aboriginal Representative Body are the State in developing the treaty negotiation contained in section 2.3. framework and other elements supporting The primary responsibility of the Aboriginal future negotiations will ensure that Aboriginal Representative Body will be to establish, in self-determination underpins all aspects of partnership with the State, the elements to the negotiation process. The Framework is support future negotiations. discussed in more detail at section 3.3.

2.3 THE WORKING GROUP’S FINAL RECOMMENDATIONS ON THE DESIGN OF THE ABORIGINAL REPRESENTATIVE BODY

The Aboriginal Representative Body The Aboriginal Representative Body should should support self-determination for be based in Aboriginal skills and culture. all Aboriginal people in Victoria. The Aboriginal Representative Body The Aboriginal Representative Body should should develop a framework to provide a democratic, representative voice underpin treaty negotiations. from Aboriginal Victorians to the State and the non-Aboriginal community at large. The Aboriginal Representative Body’s This representative voice has been a long primary responsibility should be to develop, time coming. in partnership with the State, a treaty negotiation framework and other elements to The Aboriginal Representative Body support treaty negotiations. This framework should embody design principles will outline fundamental matters such as who chosen by the community. can negotiate, what can be negotiated for, These principles include unity, inclusivity, and how negotiations will be carried out. practicality, independence, transparency and accountability.

8 Final Report on the Design of the Aboriginal Representative Body The Aboriginal Representative • a Traditional Owner Corporation Body should represent all Aboriginal people in Victoria. • an Aboriginal Community-Controlled Organisation The Aboriginal Representative Body should not speak for a specific family, nation, or • 20 eligible voters. Country, but for the Aboriginal Victorian community as a whole. It should complement A person should be able to stand without existing Aboriginal organisations and vehicles Traditional Owner Corporation or Aboriginal for self-determination, and represent the Community-Controlled Organisation diversity of Aboriginal Victorians. endorsement, so long as they have tried to obtain such endorsement and have received The legal structure of the Aboriginal endorsement from 20 eligible voters. This will Representative Body should provide help to ensure candidates stand for election independence and accountability. on the basis of community support. The Aboriginal Representative Body should The membership of the Aboriginal take the form of a Company Limited by Representative Body should be Guarantee. This will maximise its flexibility, regularly refreshed. its independence from Government, and its accountability to the Aboriginal Representatives should be able to serve a Victorian community. maximum of two consecutive three-year terms. Representatives should then need to The Aboriginal Representative Body sit out for one term before they can stand for should be a democratic institution. election again. All positions in the Aboriginal The Aboriginal Representative Body should Representative Body should be open for comprise thirty representatives elected from election at the end of each three-year cycle. six voting areas—five in regional Victoria, and Special mechanisms should hold one in metropolitan Melbourne. Each voting the Aboriginal Representative area should be designed, wherever possible: Body directly accountable to the • to not cut across Traditional Aboriginal Victorian community. Owner boundaries An accountability body or “Ethics Council” • to ensure equal representation. should exist, but it should focus on cultural accountability, rather than legal or corporate Voting areas and the number of governance, which should be managed representatives should be updated over by other regulators. The role, composition, time to reflect the growing Aboriginal and procedures of an accountability body Victorian community. should be determined by the Victorian Treaty Any Aboriginal person living in Victoria Advancement Commission in establishing should be eligible to vote in elections for the Aboriginal Representative Body. the Aboriginal Representative Body.

Victorian Aboriginal Traditional Owners should be eligible to stand for election. To stand, a candidate should require endorsement from two of the following:

2018 9 2.4 OVERVIEW OF THE COMMUNITY ASSEMBLY

The Community Assembly’s task was to The Community Assembly was representative answer five overarching questions relating of the broad diversity of the Aboriginal to the representation, governance and entity Victorian community. The selection criteria structure of the Aboriginal Representative were inclusive and ensured successful Body. Figure 1 overleaf is a diagram candidates had appropriate skills, knowledge breaking out the questions put to the and experience. Community Assembly. The Community Assembly was able to receive How was the Community input from the broader Aboriginal Victorian Assembly formed? community, including through a dedicated Strategic guidance on the purpose and online portal and email address, social media 2 structure of the Community Assembly was channels, a telephone hotline, and community provided by the Working Group’s Community pulse surveys. Assembly sub-group, as well as by the full More information on the composition and Working Group. Members of the Community processes of the Community Assembly is Assembly were chosen through an Expression contained in the Community Assembly Report of Interest process that was open to all (Appendix 1, Part 4). Aboriginal Victorians. The Expression of Interest process was endorsed by the Working The Community Assembly made Group and managed by EY, with guidance recommendations on all the questions it was from Karen Milward, Uncle Kevin Coombs and asked. These recommendations, and the Uncle Richard Frankland. This was to ensure Working Group’s responses, are contained that the selection process was independent of in section 2.5 of this report. the Working Group and Government.

10 Final Report on the Design of the Aboriginal Representative Body FIGURE 1: QUESTIONS PUT TO THE COMMUNITY ASSEMBLY

ABORIGINAL COMMUNITY ASSEMBLY

1. How would 5. F or confirmation: you like to be What is the represented? best Entity Structure for the Representative Body?

2. H ow should 4. W hat types the candidate of matters eligibility and should the nomination Representative criteria be Body not be finalised? involved in?

3. H ow will the Representative Body be accountable to Community?

2018 11 On 8 December 2017, the Community Assembly provided its recommendations to the Working Group. The Community Assembly’s full report is at Appendix 1. These recommendations and the Working Group’s responses are below.

2.5 COMMUNITY ASSEMBLY’S RECOMMENDATIONS

This section sets out: Assembly Report (Appendix 1, Part 5).

• the Community Assembly’s The Community Assembly’s recommendations recommendations are set out word-for-word below.

• the Working Group’s response The Working Group notes that all of 2 and comments. VTAC’s work in establishing the Aboriginal Representative Body will be carried out in For the Community Assembly’s discussion of partnership with the Working Group. each recommendation, see the Community

OVERARCHING RECOMMENDATIONS

• Our overarching recommendation is that there be continuing engagement with the Aboriginal Community similar to the Community Assembly process to maintain momentum on this journey.

• We recommend that common or contested words and phrases are defined to reflect their meaning and intent in the context of establishing the Aboriginal Representative Body. These should be defined by the Victorian Treaty Advancement Commissioner.

Working Group’s will be implemented by VTAC with the response: Accept strategic guidance and support of the Working Group. The Working Group accepts the Community Assembly’s overarching The Working Group is strongly committed recommendations. The Working to ongoing engagement with the Victorian Group notes that the Community Aboriginal Community. Assembly’s overarching recommendations

12 Final Report on the Design of the Aboriginal Representative Body QUESTION 1: HOW WOULD YOU LIKE TO BE REPRESENTED?

Recommendation 1: How should • You must be 16 years old to vote. representatives be elected? • You must be 18 years old to stand for • You vote where you live and you stand election. in a region that you nominate—either where you live, or where you have • An independent Aboriginal Electoral ancestral connections. Roll should be created for the Aboriginal Representative Body. Those • You can only vote once and only on the electoral roll will be the electors stand in one voting region. This voting of the representatives. structure means a proportional voting system to elect representatives is the most appropriate voting method.

Working Group’s response: where they have ancestral connections, Accept in principle including the possibility of particular nations achieving disproportionate The Working Group accepts representation. recommendation 1 in principle. However, the following issues require further • VTAC should consider how an consideration by VTAC. independent Aboriginal Electoral Roll will be implemented taking into • VTAC should consider the suitability account cultural and privacy concerns. and implications of allowing young The independent Aboriginal Electoral Aboriginal Victorians who are 16 or 17 Roll should be held by the Aboriginal years of age to vote in elections for the Representative Body as a Company Aboriginal Representative Body. Limited by Guarantee once established, rather than VTAC (subject to legislation). • VTAC should consider the implications The Working Group notes that VTAC will of allowing candidates to stand in either cease to operate once the Aboriginal the region where they live or the region Representative Body is established.

2018 13 QUESTION 1: HOW WOULD YOU LIKE TO BE REPRESENTED?

Recommendation 2: How should • Using 2011 ABS Census and the 2014- voting regions be designed? 16 National Aboriginal and Torres • There will be six voting regions— Strait Islander Social Survey data, five regional and one metro the number of representatives was modelled on a proportional basis of • There will be multiple representatives one representative per 1,700 people per voting region resulting in 30 representatives in total*

• The number of representatives per • You vote where you live and stand voting region will be based on the total where you nominate Aboriginal population in that voting region and balance of representation • Wherever possible voting regions 2 across regions where possible should be designed so they do not divide existing traditional boundaries.

Recommendation 3: How many living in Victoria (approximately 50,000) elected representatives should as indicated by the 2014-15 NATSISS. This there be? meant that the population concentrations There will be multiple representatives per from the 2011 Census data were used as voting region. Using 2011 ABS Census a guide when looking at where the total and the 2014-15 National Aboriginal and population outlined in the 2014-15 NATSISS Torres Strait Islander Social Survey data, were spread across the State. More up to the number of representatives will be date data is now available based on the modelled on a proportional basis of one 2016 Census. Current data will need to representative per 1,700 people. Based on be used to ensure that the final number the data used, this results in 30 elected of representatives reflects the current representatives. number of Aboriginal people in Victoria.

*The Community Assembly used the NOTE: The number of representatives will following data to determine representative be reviewed periodically to reflect the numbers: the 2011 Census data, and the growing Aboriginal population. 2014-15 National Aboriginal and Torres The gender composition of the Aboriginal Strait Islander Social Survey (NATSISS). Representative Body must promote gender These were the only data sets available equality and reflect the gender diversity in at the time the Community Assembly the Victorian Aboriginal Community. VTAC discussed representation. The Community must explore this matter further prior to Assembly used the 2011 Census data establishing the Aboriginal Representative to show population concentrations Body to understand how Community across Victoria (this was mapped across wishes to create the most inclusive municipal areas based on population Aboriginal Representative Body possible. density) and then cross referenced with the total number of Aboriginal people

14 Final Report on the Design of the Aboriginal Representative Body Working Group’s response: Accept The Working Group accepts recommendations 2 and 3.

The Working Group agrees that VTAC should ensure that the final voting regions reflect the distribution of eligible Aboriginal Victorian voters, as ascertained through the latest available population data, and that regions should align with Traditional Owner boundaries wherever possible. The Working Group notes that VTAC’s ultimate decision on voting age will significantly affect the design of the voting regions.

The Working Group reiterates that the Aboriginal Representative Body will represent all Aboriginal Victorians in the development of the treaty negotiation framework. The Aboriginal Representative Body will not negotiate treaty or treaties for Country. Therefore, the voting regions recommended by the Community Assembly are simply for the purpose of electing the Aboriginal Representative Body. They are not treaty regions.

The Working Group notes that VTAC and the Aboriginal Representative Body should promote nominations which reflect the diversity of the Aboriginal Victorian community. This should be achieved through outreach and engagement programs. This will ensure the members of the Aboriginal Representative Body are self-determined by the votes of Aboriginal Victorian electors.

2018 15 QUESTION 2: HOW SHOULD THE CANDIDATE ELIGIBILITY AND NOMINATION CRITERIA BE FINALISED?

Recommendation 4: Confirm the • A Sovereign Aboriginal existing candidate eligibility and person of Victoria nomination criteria. • Accepted in their relevant Victorian The following eligibility and nomination criteria Aboriginal Community. is recommended, in addition to the criteria The information should be held confidentially already confirmed. Please see section 5.2 for and in compliance with all data and privacy a proposed candidate nomination form. laws and no information will be shared without the express permission of the individual • Candidates have the opportunity to add filling out the form. All candidate data held a statement discussing why they wish to by VTAC will be transferred to the Aboriginal nominate and/or outline their relevant skills Representative Body in its entirety once it is (Note: this is optional). established, and will be destroyed by VTAC • Two points of support for nomination once it has been transferred. None of this data must be presented by a candidate. should be shared with or held by the Victorian If no support is received from an or Governments at any time. Aboriginal Community Controlled 2 Organisation (ACCO) or a Traditional All of the candidate eligibility and nomination Owner (TO) Group then this does not forms will have a supporting document disqualify a candidate, if they have that will provide explanation of the terms or tried to seek this support and have requirements on the form. also gathered 20 signatures from VTAC will need to work with Community to eligible voters. define how to determine Aboriginality for • Candidates must list their nominated the purposes of establishing an Aboriginal voting region to stand in. electoral roll. This can be re-visited by the • Candidates must declare that they are: Aboriginal Representative Body once it • 18 years or older in age is established.

commitments for representatives Working Group’s response: prior to elections being held. Accept in principle This will ensure candidates stand for election with full awareness of the nature The Working Group accepts and requirements of the role. recommendation 4 in principle. The Working Group recommends that The Working Group notes that clear VTAC consider how the nomination guidelines must be developed and process can accommodate members communicated to the Aboriginal of the community who are known under community about nomination and multiple names. eligibility requirements and the nomination process. The Working Group notes that VTAC will need to comply with relevant data and The Working Group recommends that the privacy laws in relation to the way it proposed candidate statement should be collects, uses, stores and transfers data. mandatory, not optional, to ensure the Ultimately, the Aboriginal Representative integrity of the nomination process. Body, which the Working Group recommends take the form of a Company The Working Group recommends Limited by Guarantee, should hold that VTAC publicly announce both relevant data rather than VTAC. remuneration and expected time

16 Final Report on the Design of the Aboriginal Representative Body QUESTION 2: HOW SHOULD THE CANDIDATE ELIGIBILITY AND NOMINATION CRITERIA BE FINALISED?

Recommendation 5: • Two renewable terms How many terms can (e.g. six years maximum)—41% of votes representatives serve? • Three renewable terms We ask that the Working Group and VTAC (e.g. nine years maximum)—23% of votes. take our vote on how many renewable We do however, recommend that if a limit terms a representative can serve and is placed on the number of renewable make a decision, which was as follow: terms, then candidates can sit out for one term and then stand again for candidacy. • Unlimited terms—36% of votes

Working Group’s After serving two terms, representatives response: Accept should be required to sit out for one term before standing for election again. This will The Working Group accepts the option maximise opportunities for participation set out in recommendation 5 that and ensure new skills and perspectives are representatives should be eligible to serve regularly introduced into the Aboriginal two consecutive renewable terms (subject Representative Body. to re-election).

QUESTION 2: HOW SHOULD THE CANDIDATE ELIGIBILITY AND NOMINATION CRITERIA BE FINALISED?

Recommendation 6: Will each cycle of elections open all positions for election or only a portion? We recommend an election of all positions at the end of each term (e.g. every three years).

Working Group’s response: Accept The Working Group accepts recommendation 6.

2018 17 QUESTION 2: HOW SHOULD THE CANDIDATE ELIGIBILITY AND NOMINATION CRITERIA BE FINALISED?

Recommendation 7: Should there the Aboriginal Representative Body, if they be an Ethics Council to monitor choose to stand for election. applicants? What could this look like? The Ethics Council can support the Representative Body in reviewing applications Yes, an Ethics Council should be established of candidates for election. Only Elders in the to provide oversight of the Aboriginal Ethics Council will audit applications, the Representative Body to keep it accountable young people will be there to learn from the to Community. The Ethics council has the Elders only. responsibility to ensure the Representative Body operates to the highest standards, and The Ethics Council could also take on a adheres to the required standards of cultural dispute resolution role within the Aboriginal accountability. Representative Body.

An Ethics Council should be comprised of Note: The Community Assembly had limited both Elders and young people, in order time to discuss an Ethics Council, so these to support our youth to learn and build recommendations provide a starting point 2 leadership skills in preparation for being on for further development.

Working Group’s response: implemented in practice by the Aboriginal Requires further consideration Representative Body.

The Working Group supports the The Working Group notes that further establishment of a body (such as an Ethics in-depth consideration by VTAC is Council) to ensure cultural accountability required to determine: in the Aboriginal Representative Body. • how an accountability body The Working Group notes that, if the would be established Aboriginal Representative Body takes the form of a Company Limited by • how people would be appointed Guarantee as recommended, its corporate to the body governance will be regulated through the Australian Securities and Investment • the roles and functions of the body Commission and the Australian Charities and Not-For-Profits Commission. As a • how the body would work procedurally result, any accountability mechanism in and practically. the Aboriginal Representative Body should focus on cultural rather than corporate or The Working Group notes that it may not legal accountability. The Working Group be appropriate for an accountability body will be able to provide guidance to VTAC to have a dispute resolution function. on how cultural accountability can be

18 Final Report on the Design of the Aboriginal Representative Body QUESTION 3: HOW WILL THE ABORIGINAL REPRESENTATIVE BODY BE ACCOUNTABLE TO COMMUNITY?

Recommendation 8: What • A formal education program be mechanisms and process established for young people between will be needed to ensure the the ages of 16 to 20 focused on Aboriginal Representative Body leadership development and education, is accountable to Community? for the purpose of being involved with We recommend that: the Representative Body and Treaty • The Representative Body should utilise • There is an annual general meeting existing programs and processes to (AGM) which provides transparency support communication and reach the and financial accountability grassroots of Community, for example • An annual report should be readily utilising the Koorie Youth Council as an available online to Community, advisory group to the Representative and on request Council • Representatives meet four times a • The Representative Body should have year as a group a code of conduct and a dispute • The Representative Body establish a resolution process to manage breaches vision and strategic plan of the code of conduct • There must be regular feedback, • There should be an ethics council, consultations, meetings and forums which is comprised of both Elders (for with the Community across all of the cultural accountability) and youth voting regions, including quarterly (for exposure and hearing the voice of (four) State-wide open meetings young people) • Consultation should occur at a state- • The Representative Body uses surveys wide level and also through place- as a form of communication, quality based meetings where longer periods evaluation and feedback of time can be spent with Community • There is a regular newsletter and a • Individual representatives are able dedicated online Treaty portal for to be approached about issues, and information sharing and advertising have a platform on which to raise • Cultural integrity will be maintained these to the Representative Body level. through a strong code of conduct and These discussions must be able to be robust governance practices recorded and reported publically. This • Communication, education and may be in the form of a local office for awareness of Community is critical and each voting region where Community there must be the resources to support can feel safe to have a chat this properly.

Working Group’s response: Representative Body to properly inform Accept in principle the design of effective accountability mechanisms. The Working Group accepts recommendation 8 in principle. The Working Group notes that the Aboriginal Representative Body will require The Working Group notes that it will be adequate and secure funding to perform critical for VTAC to clearly define the role its role properly and engage with the and responsibilities of representatives Aboriginal Victorian community. and the functions of the Aboriginal

2018 19 QUESTION 4: WHAT TYPES OF MATTERS SHOULD THE REPRESENTATIVE BODY NOT BE INVOLVED IN?

Recommendation 9: What is the • It does not determine Native Title Act, Aboriginal Representative Body Aboriginal Heritage Act or Traditional not accountable for? Owner Settlement Act matters The following list reflects the areas for which • It does not undermine current existing the Representative Body should not be organisations or provide service delivery, accountable: but it does promote communication between, and is supported by, existing • As the Representative Body represents all organisations Aboriginal people in Victoria, it does not • It will not get involved in any current or negotiate for Country future disputes between service providers • The Representative Body’s primary focus • It will not be involved in boundary will be on Treaty Negotiation Framework 2 disputes. development • It is not involved in family or community business and politics

Working Group’s response: negotiation framework and other elements Accept in principle to support treaty negotiations. However, The Working Group accepts the Working Group also notes that the recommendation 9 in principle. Aboriginal Representative Body will have a unique capacity to work towards furthering The Working Group agrees that the Aboriginal self-determination more Aboriginal Representative Body’s initial generally, and this should form part of its focus will be on developing a treaty ongoing role.

20 Final Report on the Design of the Aboriginal Representative Body QUESTION 5: WHAT IS THE BEST ENTITY STRUCTURE FOR THE REPRESENTATIVE BODY?

Recommendation 10: What is • It must be fluid and flexible so it can evolve the best entity structure for the with the needs of Community Representative Body? • Allow for funding from multiple sources We recommend: and not be totally dependent on Government for funding • The Representative Body be a Company • It must be independent of Government Limited by Guarantee and controlled by Community • Our own Aboriginal framework to govern • The Representative body must have the Representative Body and mobilise our transparent accountability through the cultural authority and Sovereignty oversight of an Ethics Council as well its • The Representative Body must be inclusive policies and procedures and accessible to Community • A mechanism must be established • It must be established to allow for its to review relevancy, practicality, longevity and sustainable function in functionality and cultural appropriateness perpetuity outside of influence and of the Representative Body. protection from Government

Working Group’s The Working Group notes that, subject to response: Accept further consideration by VTAC, the Ethics The Working Group accepts Council may also form a key part of the recommendation 10. Aboriginal Representative Body’s entity structure.

2018 21 DESIGNING THE ABORIGINAL REPRESENTATIVE BODY

Part 3.1 of this section sets out where we • representation have been in the treaty process, part 3.2 sets • governance out where we are now, and part 3.3 sets out • roles and functions. where we are going. A sixth model element, funding, was In accordance with Aboriginal self- not subject to consultation. Community determination, the design of the Aboriginal consultation also established seven Representative Body must reflect the design principles for the Aboriginal needs, aspirations and priorities of the Representative Body: Victorian Aboriginal community. To this end, the Working Group guided community • inclusive representation consultations and an Aboriginal Community • transparent/accountable Assembly. The results of these consultations • practical have informed the Working Group’s final • unity recommendations to the Minister for • clan based Aboriginal Affairs. • skills based To date, community consultation, including • culturally based. the Community Assembly, has focused on five Figure 2 overleaf outlines the model elements. key aspects of the Aboriginal Representative Further discussion of the model elements can Body’s design: be found in Appendix 1: Aboriginal Community • purpose Assembly Report and Recommendations. • entity structure

3

22 Final Report on the Design of the Aboriginal Representative Body FIGURE 2: MODEL ELEMENTS

DESIGN PRINCIPLES UNITY - INCLUSIVE REPRESENTATION - CULTURALLY BASED - PRACTICAL - TRANSPARENT & ACCOUNTABLE - SKILLS BASED - INDEPENDENT - CLAN BASED

MODEL ELEMENTS

PURPOSE ENTITY STRUCTURE REPRESENTATION

Articulates the vision and objectives Identifies the entity structure that Establishes the voting, nomination as it relates to role and purpose reflects purpose and agreed and candidate criteria design principles

GOVERNANCE FUNDING ROLES & FUNCTIONS

Describe how an independent Discusses the funding profile Summarises what the organisation and transparent governance required to operate independently will do to deliver on its purpose model can be achieved

ABORIGINAL REPRESENTATIVE BODY

2018 23 3.1 WHERE WE HAVE COME FROM – COMMUNITY LEADERSHIP

a) The call for treaty and Further discussion of the design principles a representative body and roles and functions of the Aboriginal For generations, Aboriginal people in Victoria Representative Body can be found in the have fought, organised, and protested for the Community Assembly Report (Appendix 1, right to self-determination. In the 2015 Closing Part 6) . the Gap address the Premier of Victoria, The Phase 2: Phase 2 of the community Honourable Daniel Andrews, recognised the consultations focused on the Representation community’s struggle by committing to an Model Element. At the 13 December 2016 approach to Aboriginal Affairs founded on forum, the attendees provided clear self-determination. direction on how to structure the next round In February 2016, the Aboriginal Victorian of consultations. Attendees wanted the community called on Government to negotiate Aboriginal Victorian community to lead their a treaty. Government agreed to participate in own consultations with an easily accessible treaty negotiations, but there is no state-wide online consultation platform and further Aboriginal Representative Body with which face to face consultations. This led to six Government can engage to establish a treaty consultations held in March 2017 in regional negotiation framework or enable negotiations. and metropolitan locations, Treaty Circles, As a result, community consultation began on and an online message stick. Treaty Circles the design of such a body. were small, community-run consultation sessions, and the online message stick was an internet portal where community b) Community consultations members could post their views. In total, Phase 1: Phase 1 of the community 16 Treaty Circles were held, and the online consultations focused on design principles message stick received 240 responses. Below and the roles and functions of the Aboriginal is a table showing each of the Aboriginal Representative Body. Ten consultations were Representative Body’s model elements, and held in November 2016 in both regional and the method by which it was determined. metropolitan locations. c) The Community Assembly A state wide forum was then held on 13 The Community Assembly was the third December 2016 in Melbourne, where the and final phase of the Working Group’s outcomes of the consultations were reported consultation on the design of the Aboriginal back to the community. The consultations Representative Body. See section 2.4 3 identified a consistent set of design principles for a detailed explanation of the and roles and functions for the Aboriginal Community Assembly. Representative Body.

Element Method of determination Purpose Considered by the Working Group and then finalised through Phase 2 of community consultations.

Entity Structure Considered by the Working Group and then finalised by the Community Assembly.

Representation Considered during Phase 2 community consultations and then final recommendations made by the Community Assembly.

Governance Considered by the Working Group and then final recommendations made by the Community Assembly.

Funding Not consulted on.

Roles & Function Considered during Phase 1 of community consultations and then finalised during Phase 2.

24 Final Report on the Design of the Aboriginal Representative Body 3.2 WHERE WE ARE NOW – STRENGTHENING INDEPENDENCE

a) The Victorian Treaty Victorians, providing research and advice on Advancement Commission (VTAC) the treaty process, and communicating VTAC commenced operations in January 2018 progress on treaty to Aboriginal and with the appointment of Jill Gallagher AO as non-Aboriginal Victorians. Victorian Treaty Advancement Commissioner. VTAC will build on the work of the Community VTAC will strengthen independence for the Assembly and other community consultations Aboriginal Victorian community on the path to led by the Working Group. treaty and ensure the community remains at the heart of the process. VTAC will operate until the Aboriginal Representative Body has been established. What will VTAC do? At present, it is anticipated this will occur VTAC’s primary role is to operationalise the by July 2019. Establishing the Aboriginal outcomes of the Community Assembly and Representative Body will ensure greater establish the Aboriginal Representative Body. independence for Aboriginal Victorians This includes maintaining the momentum on the path to treaty. of the treaty process, consulting Aboriginal

ROLE OF THE VICTORIAN TREATY ADVANCEMENT COMMISSIONER

NOVEMBER 2017 2018

FEBRUARY 2016

ONGOING COMMUNITY ENGAGEMENT

ABORIGINAL TREATY WORKING GROUP

INITIAL ABORIGINAL VICTORIAN TREATY ABORIGINAL COMMUNITY COMMUNITY ADVANCEMENT REPRESENTATIVE ENGAGEMENT ASSEMBLY COMMISSIONER BODY

2018 25 3.3 WHERE WE ARE GOING – PRIORITIES FOR THE NEXT 18 MONTHS

Part 2.3 outlines the Working Group’s and engagement role. The Aboriginal final recommendations on the design of Representative Body will fundamentally the Aboriginal Representative Body, as alter the relationship between the Aboriginal informed by community consultations Victorian community and Government, and the Aboriginal Community Assembly. transitioning to genuine partnership and The task of putting the agreed design into community leadership. effect and establishing the Aboriginal Representative Body will rest with VTAC. The b) Treaty legislation next steps required to establish the Aboriginal The Victorian Government has publicly Representative Body are outlined at (b) committed to introduce legislation into Parliament in early 2018 to progress its a) Ongoing community commitment to treaty. Members of the engagement Working Group have worked in partnership The Working Group recognises that with Government to develop this legislation. engagement needs to be an ongoing The legislation will embed self-determination process. The voice of the Aboriginal Victorian and partnership in the treaty process community must be heard at every step of by requiring the State to work with the the treaty process. As a result, VTAC will Aboriginal Representative Body to establish carry out further community engagement in elements necessary to support future treaty 2018. The scope of these consultations and negotiations. While the legislation will not the particular form they take is currently itself establish the Aboriginal Representative being considered by the Working Group and Body or the elements necessary to support VTAC. However, possible topics include: future treaty negotiations, it will provide the foundation for a modern treaty process • how elections will be held for the in Victoria. Aboriginal Representative Body, including the period for which polls The Working Group and VTAC will be able to will be open and how votes will be provide its expertise and cultural knowledge cast and collected to support the Parliament of Victoria as it considers upcoming treaty legislation. 3 • how the community wishes to be engaged going forward, and how communications c) Establishing the Aboriginal between the Victorian Government, the Representative Body community and VTAC can be improved It is anticipated that the Aboriginal Representative Body will be established • matters which were not fully resolved by by July 2019. VTAC will be responsible for the Aboriginal Community Assembly, establishing the Aboriginal Representative such as the role and functions of the Body, and for engaging with Aboriginal Ethics Council. Victorian communities throughout Once the Aboriginal Representative Body is this process. established, it will take on VTAC’s consultation

26 Final Report on the Design of the Aboriginal Representative Body d) Developing the treaty with Aboriginal Victorians about the negotiation framework development of the treaty negotiation The treaty negotiation framework will framework. set out the rules for treaty negotiations. e) Treaty Authority The Aboriginal Representative Body will The Treaty Authority (distinct from VTAC) be responsible for developing a treaty will be established following the election negotiation framework in partnership of the Aboriginal Representative Body with the State. The treaty negotiation to act as an independent umpire in the framework will outline important matters treaty negotiation process. International such as: best practice examples, including Canada • the processes for negotiating, and New Zealand, show the need for formalising and enforcing a treaty an independent body such as a Treaty Authority. • what can be negotiated for as part of a treaty, acknowledging the limits of It will facilitate and oversee treaty Victoria’s jurisdiction negotiations to ensure parties negotiate in good faith and abide by the agreed • who is eligible to enter into negotiations. treaty negotiation framework. The Treaty Authority is one of the elements required A similar framework has been developed to support future treaty negotiations that in Canada as part of the British Columbia the Aboriginal Representative Body and Treaty Process. As part of this process, the State will be required to establish parties agree to what can be negotiated, under upcoming treaty legislation. It will procedural requirements, the goals of the also provide impartial support to parties negotiation process, and a time frame for where necessary. negotiations. The parties also engage in public consultations at both regional and The exact role and functions of the Treaty local levels to develop this framework. Authority will be determined and agreed by the Aboriginal Representative Body in The Aboriginal Representative Body will partnership with Government. be best placed to carry out consultation

APPENDICES

• https://www.vic.gov.au/aboriginalvictoria/treaty/treaty-appendices.html

2018 27 28 Final Report on the Design of the Aboriginal Representative Body