Mediating Centuries Old Aboriginal Claims in Australia-Seeking Justice & Healing

I had the pleasure of attending the UIA 34th Conference of Mediation Centres in Sydney, Australia last month.  It was a great conference and one of the highlights for me was hearing about the Australian State of Victoria’s efforts to reach treaties with the indigenous peoples of the region — the Aboriginal and Torres Strait Islander peoples. I thought it was fascinating to learn about this development because it uses mediation to resolve a dispute that is centuries old and even the structure of the body handling the mediation was designed by the participants.

By way of background, when people immigrated to the Australian continent in the latter half of the 18th century and claimed it for Britain, they took over land and resources that had previously been used by indigenous people. Indigenous people were left with little and only in recent years has there been an effort to address their damage through negotiation of treaties. In the State of Victoria, a Treaty Authority has been established as the independent body that oversees such treaty-making in Victoria.

As quoted on its website, http://www.treatyauthority.au/, the Treaty Authority will support parties – aboriginal people and the state -- to “find common ground in a safe, inclusive and flexible way, which aims to maintain ongoing and respectful relationships and promote healing.”  This is Victoria’s way to address a long-standing wrong, while also trying not to create more harm in the process.

Because treaties weren’t negotiated when settlers first arrived in Australia, there are no claims for aborigines to assert based on prior agreements, as has been the common practice in the U.S.  Instead, a law was adopted in Victoria, Australia to allow a Treaty Authority to consider the possibility of such treaties now.  It functions in accordance with four basic legal instruments (see below).

The Treaty Authority is to mediate the negotiation of treaties based on claims asserted by Aboriginal and Torres Strait Islander people in Victoria, essentially of any topic, as long as such claims can be shown to have historical underpinnings for the people asserting the claims.  Examples given included reclaiming land where clans resided for generations and hunting/fishing/harvesting rights. The use of mediation in the context seems much better than litigation to address such claims, since it allows the parties involved to find a solution that is workable for all parties concerned and reach all needed agreements about how to implement it, without years of protracted and expensive litigation.  It also reduces the risk of new conflict arising from the process itself. 

The Treaty Authority representatives we heard speak also anticipate that the Treaty Authority will mediate any disputes that might arise about the treaties that are finalized. I hope such disputes are rare, but undoubtedly issues can develop that were not anticipated at the time of initial treaty-making, especially over time.

 I look forward to learning how this process proceeds and found it to be another creative and practical example of the diverse types of conflicts that may benefit from mediation.

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For those interested the four legal instruments mentioned above are:

1.         Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic), entered into force August 1, 2018, as amended August 24, 2022 -- the law that required the First Peoples’ Assembly of Victoria - as the democratic voice for Aboriginal and Torres Strait Islander people in Victoria - and the State of Victoria to work together to establish the Treaty Authority.  It also sets out the Authority’s functions.

2.         Treaty Authority and other Treaty Elements Act 2022 (Vic), entered into force August 24, 2022 (as superceded, August 24, 2023) – the law that sets out the Treaty Authority’s legal capacity, additional functions and powers, and how it is funded.

3.         Treaty Negotiation Framework, entered into October 20, 2022 -- the instrument agreed upon between the First Peoples’ Assembly of Victoria and the State of Victoria, designed to enable “Traditional Owners of Country” to negotiate Treaties across the state, and for the Assembly to negotiate a state-wide Treaty to deliver structural reform.  It establishes what criteria groups need to meet if they want to enter treaty negotiations and how they can be supported.

4.         Treaty Authority Agreement 2022, entered into force October 26, 2022 -- a broad agreement between the First Peoples’ Assembly of Victoria and the State of Victoria, establishing the Treaty Authority and governing how the Authority works.