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ANU Public Policy and Societal Impact Hub ANU TREATY FORUM PROGRAMME 13-14 NOVEMBER 2019 ANU National Centre for ANU Public Policy and Indigenous Studies Societal Impact Hub CONTENTS INFORMATION 2 WELCOME 3 ULURU STATEMENT FROM THE HEART 5 PROGRAMME 6 BARUNGA STATEMENT 11 SPEAKERS 12 INFORMATION Registration desk Forum app Hedley Bull Atrium iPhone - download from iTunes Android - download from Google Play Event support Greta Piazzoli Forum website 0429911575 http://treaty.anu.edu.au E [email protected] Venues Forum Director Hedley Bull Building Professor Asmi Wood 130 Garran Road, Acton ACT 2601 Interim Director, National Centre for Indigenous Studies, ANU T 02 6125 6708 University House E [email protected] 1 Balmain Crescent, Acton ACT 2601 Twitter Kambri Cultural Centre #ANUtreatyforum 153 University Avenue, Acton ACT 2601 Wifi internet access Network: ANU-Secure Username: ANUTreaty2019 Password: Treaty2019! ANU Security T (02) 6125 2249 Emergency services Dial 000 WELCOME We are fortunate to meet on beautiful Ngunnawal/Ngambri Country to discuss an issue, treaties, that is significant to contemporary Indigenous communities. I would like to welcome you all to the Australian National University and hope that we can share our collective experiences and thoughts that will, in the not too distant future, lead to beneficial treaty outcomes for our communities. This forum follows on from and was foreshadowed by the First Nations Governance Forum facilitated by the ANU in 2018. The reversal of Indigenous invisibility and the subsequent process of Indigenous recognition in the nation’s psyche has been inching along. The absence so far of fair treatment of Indigenous Peoples on this continent has been tragic in practice. The current State and Territory processes of treaty making have been slow, limited and tedious. Further, the federal nature and the powers vested in the Federation through the Australian Constitution, including the limited jurisdiction of the States and Territories, along with the Federal Parliament’s power to ‘cover the field’ makes the Commonwealth a key and necessary partner, in concluding fair and useful nationwide treaties that will endure. Yet in the absence of treaty so far, this means we start from scratch and can ensure that we will benefit from the experience of other similar colonised Indigenous groups who have concluded treaties. International experience has shown that benefits so far of these treaties have been mixed or marginal. An important legal starting point however is that absence of treaty reinforces the fact that this land was never ceded. The denial in Anglo-Australian law of conflict means that the land was never conquered. The rejection of the notion of a terra nullius continent by the High Court and Federal Parliament confirms the historical fact that this land was continuously inhabited before, at and since the arrival of the British or others. The treaties we conclude in the future therefore can begin de novo, based on historical fact rather than on legal fictions. This forum will broadly examine three areas of treaty making. First, and importantly, we will seek the views of Elders, Indigenous youth, Indigenous scholars and others on what are the key strategic factors that our communities would like to see as the ‘content’ of treaty. Secondly, the forum will explore a range of treaty options, from a single treaty to multi-lateral treaties between Indigenous nations, including with the Federation, the states and territories as important stakeholders. Thirdly, and as is custom for treaty negotiations, we will explore a range of legal frameworks that will help to conclude treaties, to resolve issues of interpretation and disputes when necessary and to provide for amendments as required in the future. Let me close with some thoughts for our forum. The issues of constitutional recognition and treaty are not ends in themselves but a means to an end only. As I have argued elsewhere that constitutional recognition is mainly a matter for Anglo-Australian law, not least because it would help synchronise the common law and the Constitution. And yes, we want a voice or voices, but not voices that are or can be muzzled by Parliament! Further, as Michael Mansell reminds us in his seminal book Treaty and Statehood: Aboriginal Self-determination, an important element of treaty is that it must allow us to regain control of our lives, our lands and our aspirations. We should achieve these outcomes as sovereign independent peoples who have never ceded sovereignty, self-determined and free of coercion. The substantive content of treaty must be concluded with the free, prior, informed consent of Indigenous peoples, within international norms on treaty making. Finally, I would like to extend my thanks to ANU for supporting our Peoples, to the forum participants, to our Elders for their guidance, to our youth for their energy, and to our well- wishers. I remember the Spirits of our Ancestors, those who have always Cared for Country and look to the coming generations who will continue to protect and Care for Country. I hope therefore that a key element of our final treaties will be for all parties to commit to Care for Country and thus honour and carry on this legacy of the past and into the distant future. Professor Asmi Wood Director, ANU Treaty Forum Interim Director, National Centre for Indigenous Studies, Australian National University WELCOME It is with great pleasure that I welcome you to the 2019 Indigenous Treaty Forum, hosted at The Australian National University (ANU). As the national university, it is both a responsibility and a privilege to contribute to the advancement of Australia’s First peoples; through education, research and providing a platform for meaningful debate that shapes the national conversation. Our commitment to partnering with Indigenous communities is central to our ambition to help address the issues that are most important for Aboriginal and Torres Strait Islander Peoples. We cannot, and will not, make lasting change if we continue to address these issues in isolation, or without developing meaningful relationships with Australia’s First Peoples. The Barunga Statement and Uluru Statement from the Heart were significant steps of Australia’s First Peoples, making clear a path towards reconciliation, and we must continue to embrace the principles established by these defining declarations. We must positively and actively continue to contribute to the broader discussion of national Indigenous policy reform, and reignite a conversation of pivotal importance to our nation. As the national university we not only have the responsibility to convene this conversation and sharing of ideas, but possess the capacity and expertise of those who can bring academic rigour to these challenging issues in a spirit of cooperation and collaboration. The Indigenous Treaty Forum is a conduit for Indigenous community leaders and researchers to discuss, debate and share activities openly. Developing a legal framework in Australia which facilitates autonomy and self-determination is an ongoing process that is of national significance. For several decades, various political commitments have been made to develop a legal apparatus in Australia which recognises the agency of Indigenous people. Treaty development is an organic process, one that is multidisciplinary; and ANU is proud to be able to invest our resources in an issue of such national significance. I am looking forward to what is to take place in the upcoming days and have no doubt that the conversations and ideas that arise from the Forum will align with our pursuit of meaningful and impactful research in partnership with our Indigenous Communities. Professor Brian P. Schmidt AC Vice-Chancellor and President The Australian National University ULURU STATEMENT FROM THE HEART We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart: Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years? With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood. Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness. We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country. We call for the establishment of a First Nations Voice enshrined in the Constitution. Makarrata is the culmination of our agenda: the coming together after a struggle.

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