The symbol of a treaty has value, but the content of the treaty must be carefully crafted to build justice and equity. To have real and enduring impact, this treaty would include confirming and acting on those statements in the preamble of the Constitution that acknowledges the Palawa people as Tasmania’s first people and the traditional and original owners of Tasmanian lands and waters. Including recognition and acceptance of the enduring spiritual, social, cultural, and economic importance of traditional lands and waters to Palawa people.

Further areas that should be discussed for a treaty would include sovereignty, power sharing, ownership of Aboriginal heritage and culture, meaningful land returns, and reparation.

Sovereignty is the foundation stone for the implementation of Treaty and that sovereignty would be expressed through sharing land, power, and wealth in Tasmania. It would also confirm the sovereignty of Palawa as a people resulting in empowerment and self-determination for the Palawa community.

The treaty would of course support meaningful land returns. This could include all crown Lands being returned under Aboriginal title. It may also include land brought on the open market for cultural protection or economic development. There would also need to be agreed financial means to protect, repair and develop returned land.

Any treaty would include Palawa ownership of Aboriginal Heritage and Culture in this state. This would incorporate cultural authority over all returned lands, including over national parks and other public lands not yet returned. This would also include the right to undertake cultural practices such as fishing, hunting and other social practices on lands and waters in this state.

Reparations would include a guaranteed permanent financial resource, as a starting point, let’s say 3 per cent of GDP. This would partly compensate for loss of land and destruction of a vibrant society.

Sharing of power should also be up for discussion. One suggestion is to have several designated Aboriginal parliamentary seats at the commonwealth and State governments level.

Certainly, a treaty between the state of Tasmania and the Palawa is supported by Palawa people, and the broader Tasmanian community. We would expect that the content of a treaty would dignify, honour, and do justice to the Palawa.

The process for a treaty should also be collaborative and respectful. State-wide engagement with the Palawa community is vital – and should be fully resourced to be undertaken by tuylupa tunapri the Palawa community representatives.

To support the development of a treaty tuylupa tunapri has developed a draft Lutruwita Treaty Bill 2023, outlined below.

What the Bill does?

• The Lutruwita Treaty Bill will develop a partnership between the Tasmanian Aboriginal Community and the State of Tasmania to develop a Treaty.
• The Bill will become law, and this will officially enable a Treaty Commission to be set up.
• The Treaty Commission, which Aboriginal people will be elected to, will consult with the Tasmanian Aboriginal Community, general public and key stakeholders to develop a Draft Treaty.
• The draft Bill also includes the key points that should be included in a Treaty, which were developed by the Tasmanian Aboriginal Community at community meetings.

What will the Commission look like?

• The Bill recommends that three Aboriginal people be elected to the Commission for three years. These people must have strong connections with the Tasmanian Aboriginal Community, and the skills to carry out the research and consultations needed.
• The three positions include a full-time Commissioner, with two assistant Commissioners.
• All costs, including salaries and expenses, would be paid for by the State Government.
• What would the Commissioners do?

The main function of the Commission would be to:

• Develop a list of issues and propose solutions through community consultation.
• Explain what the terms of a Treaty would be, such as land return, financial compensation and self-determination.
• Produce a Treaty Bill to parliament, including a final report to the Premier of Tasmania by 30 June 2024.
• The Commissioners would also take charge of a Truth-Telling process but that would need to be developed in further discussions with the Government.

What could be in a draft Treaty?

Following the Community meetings held over the past two years, the following points have been agreed as the main elements that should be in a Treaty.

• Land
• Seas and Waters
• Aboriginal culture and language
• Aboriginal identity
• Empowerment
• Guaranteed revenue.

While truth-telling and treaty are linked, the commissions for each should be totally separate.

Truth-telling is long overdue.

The need for truth-telling has been a consistent and strongly expressed view of the Palawa community in Tasmania. It will provide a better understanding of the injustice and intergenerational trauma suffered by the Palawa. This is not the ‘black armband of history’. It is truth we wish to speak and that all Tasmanians must hear. As a society we must demonstrate the courage to speak and the humility to listen.

The truth-telling commission, appropriately led, structured, and resourced – will create a permanent and official historical record of the past. It will clarify and amend the current historical record, firmly rejecting the myth that with the death of Truganini on 8 May 1876, that 65,000-plus years of Palawa society and culture was removed from the face of the earth.

It will shine a light on the genocide and rape of our people, but also on the extraordinary acts of Palawa resistance, resilience, and survival.

It will reveal the true actions of successive Tasmanian governments and the complicity, silence, or ignorance of the broader community. As a result, it will help form our collective story from invasion/colonisation and dispossession to, a future that is characterised by mutual understanding and healing.

In the context of this truth, the commission should be empowered to make recommendations on redress and reforms between Palawa, government and the broader Tasmanian community. It should make recommendations for healing, including legislative, education, and systemic reform, and on other specific matters that may be included in treaty negotiations. Importantly, the story laid bare by the commission should compel the state of Tasmania to offer its deepest apologies to the Palawa for past and ongoing injustices, abuse, and discrimination.

However, the success of the commission will depend on how it is structured, resourced, and empowered. The commission should have the leadership of Palawa people who have the respect and recognition of our community. It should be resourced to engage with the community fully, provide a safe place for those speaking out, providing appropriate support for those experiencing trauma, and acquiring the expertise it needs. It must be able to compel government bodies and officials including politicians to give evidence – and to provide documentation – on the 200-plus years of oppression of the Palawa in Tasmania.

Five years ago, the Uluru Statement from the Heart was proclaimed by representatives of Aboriginal peoples from across the nation. The statement asserts the sovereignty of Aboriginal people over the Australian continent and its adjacent lands. It affirms that this sovereignty has never been ceded or extinguished and that it co-exists with the sovereignty of the Crown.

The statement seeks three reforms to empower Aboriginal people to take our rightful place in our own Country and to have power over our own destiny.

First, the statement calls for a First Nations Voice enshrined in the Australian constitution.

Second, it calls for a Makarrata Commission to supervise the process of agreement-making between governments and First Nations.

And third, the statement endorses processes to ensure truth-telling about our history.

Truth Telling and Treaty

A positive outcome from the Uluru Statement is its entreaty to states and territories to take steps of their own to develop policies on treaty and truth-telling. Here in Tasmania, we must progress both matters, led by Palawa and fully and appropriately resourced by government.

In November 2021, the Gutwein government published the report Pathway to Truth-telling and Treaty. The report has had a mixed reception. It lacked a strong positive outlook and failed to suggest ways forward that can truly ignite discussion and engagement with the Palawa and the broader Tasmanian community. Despite these objections, the report raised the possibility that has never been possible in Tasmania before – the truth and a treaty.

Some of the report’s recommendations that could deliver positive next steps found acceptance in the Palawa community. These are:

A working group of leading Palawa representatives to begin negotiations for the establishment of truth-telling and treaty commissions, leading to:
a truth-telling commission whose makeup should be all Palawa, and framework legislation establishing a treaty commission comprised predominantly of Palawa.
In his last State of the State report Premier Gutwein provided an update following the release of the Pathway to Truth-telling and Treaty report.

He advised the parliament that, while there were a variety of views, the feedback he had received indicated broad support to develop processes to establish truth-telling and treaty.

He said the feedback was clear that both must be Aboriginal-led and have Aboriginal ownership. He explained that these would not be easy tasks and it would require goodwill from all sides to take these matters forward.

Consequently, he decided that the next step would be to establish an Aboriginal advisory body, which would work with the government through a co-design approach to establish both processes.

Premier Gutwein also stated that the government was firm in its view that the truth-telling commission, when established, would not be tasked with determining Aboriginality or eligibility, and that the government remained committed to its current (and what it calls) inclusive eligibility policy.

Taking Aboriginal identity off the table is to again deny Palawa leadership and to impose a white government agenda on our people. It denies the Palawa the right to take part in decision-making in all matters affecting them. Importantly, our identity, who we are, is a crucial part of truth-telling. It goes to the heart of our history, before and after the arrival of the invader, and is key to how we direct our own future.

So, where do things now stand in relation to truth-telling and treaty?

The Minister for Aboriginal Affairs, Roger Jaensch, arranged a meeting on Friday 29 July 2022 for organisations registered with the Office of the Registrar of Indigenous Corporations (ORIC) and invited them to send two members from each organisation to attend this meeting. The minister then invited attending organisations to nominate two people each from whom the Minister would choose to sit on his Aboriginal advisory body to develop a government sponsored and organised treaty and truth-telling processes.

The Minister selected an organisational based committee of six people under a set of criteria only known to him in December 2022. This committee does not have the support of the general Palawa community, it was organised and chosen by government and was not community selected. This announced committee does not have the authority, or cultural license to speak on behalf of the Palawa people. This group can be considered as nothing more than a government prop, manipulated to undermine or bypass the Palawa people’s voice.

How then does this government led process fulfill the governments ‘strong’ commitment to a community led and community informed process, where is the Palawa ownership of this process.

From the outset, this state government’s processes from Will Hodgman’s irresponsible ‘re-set’ agenda to Gutwein’s pathway to treaty and truth telling onto the current government’s approach, the Palawa community has not been properly informed, consulted, or provided the opportunity to participate in these processes.

The current process has been totally controlled by Minister Jaensch who has removed any sense or practise of self-determination. Which is a fundamental principle of treaty, and these actions are clearly in breach of the UN’s declaration on the rights of indigenous peoples (UNDRIP). The Australian Government announced its support for the Declaration in 2009.

In particular, Part 1: important themes in the declaration and Articles 18, 19, and 33.

Part 1: The main themes are: (i) the right to self-determination; (ii) the right to be recognised as distinct peoples; (iii) the right to free, prior and informed consent; and (iv) the right to be free of discrimination.

Article 18: Participation in decision-making Indigenous peoples have the right to take part in decision-making in all matters affecting them. This includes the rights of indigenous peoples to select who represents them and to have indigenous decision-making processes respected.

Article 19: Free, prior and informed consent for laws and policies Governments must seek indigenous peoples’ views and opinions and work together with them through their chosen representatives in order to gain their free, prior and informed consent before laws are passed or policies or programs are put in place that will affect indigenous peoples.

Article 33: Identity, membership and citizenship Indigenous peoples have the right to decide what their identity or membership is. They also have the right to decide who their members are according to their own customs and traditions.

The government has become a bully with no moral compass, or compassion. The voices and faces of the Palawa community are being bypassed and silenced, sacrificed on the altar of partisan political expedience.

A pathway to treaty and truth telling must clearly define how we’re going to work together to achieve treaty and truth telling and to keep working together into the future. Treaty and truth telling must be LED by the Palawa community. This is about government making decisions WITH the Palawa community NOT for the Palawa community. If the government ‘partners’ properly with the Palawa community, it’s organisations and leadership then you will get real outcomes and positive progress.

Visit the below links for further information about the Uluru Statement of the Heart and the United Nations Declaration on the Rights of Indigenous Peoples.

• Home – Uluru Statement from the Heart (external link)
• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (external link)
• Easy-to-read brochure on the UNDRIP (external link)

The federal Minister for Aboriginal Affairs Linda Burney has stated that the Uluru Statement will be enacted in full by the Albanese government. In June, the government committed to a referendum on the First Nations Voice in this term of federal parliament. In July, Aboriginal Senator Pat Dodson was appointed Special Envoy for Reconciliation and the Implementation of the Uluru Statement to deliver on this promise.

The voice is the element of the Uluru Statement that has gained significant momentum over the last few years. The Makarrata or Treaty commission/development and Truth-telling processes are gaining more traction in the broader community. Particularly, at the State/local levels.

There are critical questions to ask: What is a voice? What is it meant to do? What powers will it have? How will delegates be selected and how do we guarantee community authority over the people who will be representing us?

The ‘voice’ can be viewed as the cart before the horse scenario. There are strong opinions that there should be the development of truth-telling processes that along with the Aboriginal community consultations informs the development of a treaty that would set the operating parameters of a ‘voice’ or whatever process in put in place to implement the treaty agreement.

These are critical questions that need to be answered before any referendum.

Prime Minister Albanese has stated that the referendum to enshrine the voice should be “simple and clear”, that the question put to the Australian people requires a simple ‘yes or no’ answer. He has suggested a question like ‘Do you support an alteration to the constitution that establishes an Aboriginal and Torres Strait Islander voice?’.

It is hard to believe that the Australian people will vote for a voice when they do not know what it is. The people need to know why it should be pursued through constitutional amendment and what it will actually achieve.

The Commonwealth government already has the power to establish a voice. It does not need a referendum to give it a power it already has. Apparently, the thinking, which has not been expressed publicly, is that endorsement of a voice via a referendum approach cements the entity forever after. That is naïve.

Referendum outcomes can circumscribe government actions, but they do not necessarily commit governments to action. They merely give parliament a power to do something IF the parliament wants to. Not unlike the current situation, it will be the parliament that will have the power to pass laws with respect to the composition, functions, powers, and procedures of the voice. So, it would be fair to say this voice will operate and function at the will of government.

On the matter of what a voice will achieve, this is so far unclear. It appears that the current voice model cannot return land, cannot make laws, cannot protect heritage, cannot deliver services, cannot administer revenue.

To date, there have been no nationwide discussions on what a voice will look like, what will be its power to make and enforce decisions.

There does not seem to be any ongoing conversation with the Aboriginal community now that we have settled down and have had time to think about the voice.

Without a transparent nationwide debate and without clear communication and education, the referendum may not succeed – and the outcomes may not meet the aspirations of Aboriginal people.

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. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.

If you are interested in learning more, visit the Uluru Statement of the Heart website.