Tarwirri Presentation – 4 December 2024
Jidah Clark, Chair and Treaty Authority Member
We’re sitting on Wurundjeri Woi Wurrung Country and I wish to pay deep respects to their elders, ancestors and ancestral creation beings, and Wurundjeri peoples continued connection to country and culture.
My name is Jidah Clark. I’m a Djab Wurrung man. I grew up on the Framlingham Aboriginal Settlement in Western Victoria, and I’m now the chair of the Victorian Treaty Authority. I want to speak a little bit about my history at Framlingham.
As a young Aboriginal man immersed in the lifestyle and culture of my community, it was a privilege to learn from my old people about Aboriginal ways of knowing, being and doing.
One of the things that fascinated me growing up at Framlingham was learning about the history of my community, and the operation of oppressive Western laws that subjugated our people, and that really incensed me.
What I learnt was that despite the operation of oppressive laws such as the Aboriginal Protection Acts, the intent of those acts did not achieve the outcomes desired.
While those Acts restricted our civil liberties, our people resisted that law. Aboriginal ways of knowing, being and doing, and our system of law continued to operate and persist despite the operation of those pieces of Western legislation. While it impacted our ability to practice our law as Aboriginal people, those acts didn’t prevent our law systems from operating.
Particularly, I want to talk a bit about our kinship law. Our people related to each other and cared for each other as we always have.
I want to tell a quick story. On the weekend, there was an unveiling of Uncle Archie Roach and his wife Aunty Ruby Hunter’s statue down on Gertrude Street in recognition of their contribution to the cultural fabric of Australia.
Those protectionist Acts caused Uncle Archie to be removed from Framlingham. And in his later years, his kin, brought him from Gertrude St back to Country and welcomed him with open arms. And he learned from his old people, his ways, and became a deeply cultural man, and touched many hearts across the nation. So, where Western law took him away, Aboriginal law brought him back.
As for another example at Framlingham. Up until the 1970s, the government administered the Framlingham Aboriginal Settlement or the ‘reserve’. In 1971, the Aboriginal Lands Act imposed a Western governance structure on our community, in the form of a sui-generis trust structure.
Despite the operation of that legislation, it was quite devoid from how our community operated on the ground, with elders and heads of family sitting there as decision makers and guiding our community. Their cultural authority was very salient in the operation of our community’s affairs.
Now, having become a lawyer in the Western sense, I have gained a little understanding of the Western legal system. What I’ve learned is that Aboriginal law persists and exists despite colonial forces rejecting its operation.
- In Victoria, Aboriginal legal systems are very alive but not always intact or explicitly in use. The Treaty process presents to us an opportunity to make implicit Aboriginal law more explicit.
- If we take law and look at it semantically, law stands as a linguistic gateway to describe our structures, principles, and actions that give meaning to Indigenous worldviews. These worldviews map out across our country, through songlines, across our ancestrally created territories, and throughout our kinship systems.
Aboriginal law is embedded in country. It’s to do with the knowledge that’s expressed through story, song and ceremony.
It dictates the rules of land and sea ownership, our ancestral origins, and our obligations and responsibilities to each other.
Our laws are practical and harmonious, setting the rhythm of life. Treaty making may be seen as a recognition space for Aboriginal law. As sovereign peoples, treaties serve also to recognise the Western legal system and the government.
It’s a space where the two systems may speak and relate on just terms.
About the Treaty Authority
So, about the Treaty Authority, we’re an independent and impartial body tasked with facilitating the formation of Treaties between the State of Victoria and First Peoples.
We’re also tasked with providing for the resolution of disputes. Our work is grounded in Aboriginal law and cultural authority. It’s led collectively by a panel of five members, of which I’m one. We’re committed to Aboriginal self-determination and empowerment.
An important feature of the Treaty Authority’s creation is that we were established by agreement between the State and the First Peoples’ Assembly. Legislation was later passed that provides our legal personality and powers. It’s important to remember that this legislation is facilitative of that agreement, it’s not enabling the creation of this body.
It is a novel legal entity that is independent from the State. It sits in a unique position at the intersection between Aboriginal and Western legal systems. The Treaty Authority administers the Treaty Negotiation Framework, which is the rulebook for the process under which treaties will be negotiated.
Being grounded in culture and having active engagement with Aboriginal law, is an important expression of the distinct cultural rights we have as Aboriginal people under the Victorian Charter, and also reflects the various rights of Indigenous peoples under the UN Declaration on the Rights of Indigenous Peoples, including the right to self-determination, the right to maintain our political, legal and cultural institutions, and the right to practice our cultural traditions and customs.
And performing our role, the Treaty Authority has a duty to uphold, observe and embed Aboriginal law across our work and across the Treaty process. It’s mandated by the Treaty Authority Agreement and the Negotiation Framework.
To understand what this duty entails, the Treaty Authority must engage with the meaning of those terms, Aboriginal law, lore and cultural authority. The terms are described in the Framework and the Agreement, but not quite defined.
Those documents mention that:
- Aboriginal law forms an ongoing legal system on equal footing with the Western legal system.
- It stems from Country and is intertwined with culture and the First Peoples’ way of life.
- It’s relevant to agreement making, decision making and governance structures.
- It is embedded within the dreaming, art song, ceremony and dance and stories of First Peoples’.
- The meaning of Aboriginal law varies between First Peoples’ communities and each Community must self-determine how it’s defined for them.
Turning to that term ‘cultural authority’, it’s about who has authority to speak for country and on behalf of people. It’s held with humility and respect and carries a responsibility to country and community. It is relational, intergenerational, matriarchal and patriarchal.
What is Aboriginal Law
I now would like to spend some time talking about Aboriginal law.
Which is First Peoples’ systems that prescribe indigenous knowledge and behaviours in relation to each other and to our country. It’s the basis for our governance and spirituality and also how we manage and look after the land.
It’s applicable to our communities and it helps solve everyday problems. The refusal by colonial authorities to recognise Aboriginal law and cultural authority is a hangover from the legal fiction of terra nullius – the idea that there were no people, no governance, and that the land was lawless before British invasion.
The reality is that we have legal plurality in this country, whether it is recognised or not – it exists and persists.
What I contend is that the practice of Western law is somewhat ‘loreless’ – increasingly devoid of its own story and morals.
At the Treaty Authority we’re finding it helpful to frame the distinction between law and lore. I note these terms are used interchangeably, but there’s been a tendency throughout history to have considered Aboriginal law as subordinate to Western law. Which I think explains that tendency to use the word lore, that it is somewhat ‘less than’.
Given both those terms ‘law’ and ‘lore’ are in our foundational documents, the Treaty Authority is considering lore to be about the stories that we hold, the source of our morality, and guidance on our behaviours, which directly relates to country. The stories that are embedded in country, and our song lines in our oral histories and in creation.
It might be helpful to frame Aboriginal law as the rules, the positive law that flows from the lore stories posited by ancestors and interpreted by knowledge holders such as elders. It includes things like kinship, relationships and conventions.
In the Western tradition, legal positivists say that laws are or should be separate from morality. That tradition says that natural and positivist law are separate independent spheres. For others in the Western tradition, natural law is a source of ethics or morality from which positive law should comply.
Aboriginal law doesn’t engage with those differences. The source of our law is the land itself. One difference between the two systems is that Aboriginal law is relational. Western law tends to be transactional, an example being the primary form of redress in civil cases is monetary. In the Aboriginal world, it’s about fostering harmonious relationships.
I note the work of Aunty Dr Mary Graham, (a legal scholar and Kombumerri and Wakka Wakka woman). She refers to relationalism as a key concept in Aboriginal philosophy and as a way of describing our ways of knowing, being and doing.
Aunty Mary says that relationalism is laterally expressed, it’s not hierarchical and draws interview relationships with country people and our non-human kin.
Aunty Mary uses the term autonomous regard, that is, autonomy with regard to the relationship to others.
- Autonomous regard suggests that any attempt to deny or bypass the other is impractical and unhelpful.
- ‘We can attend to regard and behold and weigh each other, while still retaining autonomy and dignity’.1
- Autonomous regard is ‘not only to keep relations flowing when relations are good, but also when relations are tense or difficult’.2
- For First Peoples’ and the State to be in right relationship, we need to be in a lawful relationship. Treaty presents an opportunity to create a lawful relationship. It’s a mutual recognition process, one that can recast the relationship between our peoples and the government.
- It is about giving power to, and not power over. It is about win/win diplomacy.
Law, Lore and Cultural Authority in the Treaty process
I want to now talk a bit about law and cultural authority in the Treaty process. It requires active engagement of cultural protocols and values.
Under Aboriginal law, we have a responsibility to learn, respect and understand the law and our ways of knowing, being and doing. Aboriginal jurisprudence is about strengthening relationships.
Western law isn’t based in the tradition of this land. Treaty is an invitation for Western law to work on itself, to understand itself, for lawyers to sink themselves into their own tradition. Through understanding the Western system, we’ll be able to better forge a relationship with the Aboriginal system.
Western lawyers must understand that Aboriginal jurisprudence is about strengthening relationships. In the Western tradition, lawyers are often taught to be adversarial.
I talked about relationality. Treaty isn’t something that should be just transactional. Many of you know that Western lawyers tend to conduct negotiations in a transactional way. It could be said that in negotiations, Western lawyers are trying to remove law from the negotiation table. In the negotiation space in Treaty, we’re bringing in Aboriginal law, bringing our law to the table. There’s benefit to bringing it into the negotiation space.
So over the course of the last 12 months at the Treaty Authority, we’re building the foundations to understand how we may uphold and observe Aboriginal law. One way is by creating those spaces to practice Aboriginal law. And I’ll talk a bit about key activities where we proactively uphold law.
It’s in the areas of delegation forming and dispute resolution. Delegation forming is a process required in order to commence treaty negotiations at the local Traditional Owner level, as opposed to the Statewide process.
Before negotiations can begin, all Traditional Owner groups that have interests over the same country must form what’s called a delegation. There can only be one delegation over a particular territory. A delegation is a flexible and inclusive and unified mechanism to enable Traditional Owner groups to collectively negotiate over a defined territory.
Relevant groups must reach ‘collective agreement’ about certain matters in order to form their delegation. Those matters might include leadership arrangements, subject matters to be negotiated, governance and decision-making arrangements, and how their membership is kept informed.
Once formed, that delegation is ready to sit at the negotiation table with the State. While the negotiation framework sets out what must be agreed, it’s largely silent as to how that agreement occurs. And this process, at its heart, is a self-determined one.
The Treaty Authority has a two-step process to support delegation formation:
- First, we will be at gathering information from Traditional Owner groups about their vision, goals and expectations for agreement making and any aspects of Aboriginal law or cultural authority that the group wishes to uphold.
- Secondly, seek to bring the groups together in a cultural, safe, respectful and nonjudgmental way. In a way that brings Aboriginal law into the space. And yarning circles are an important cultural tool that could be used to bring groups together in this way.
With the consent of the groups, we may also:
- Invite elders into the space.
- We may engage external facilitators or experts to provide advice about specific issues.
I want to just briefly touch on some of the principles that will help embed Aboriginal law in the process:
- Embedding deep and active listening.
- Grounding Agreement making in ceremony, ritual and cultural protocols.
- Ensuring genuine willingness to participate from all groups.
- Supporting self-determination through processes that are flexible and designed with participants.
- Developing processes in a way that recognise power imbalances and the potential for future abuses of power.
- Focus on culturally strong outcomes where participants benefit, acknowledging the interconnected connectedness of Traditional Owner groups and the need for sustainable agreement making.
- Processes will seek to heal, develop trust, and enduring respectful relationships.
Beyond these principles, we have what we’re calling a Dilly Bag of tools and protocols that we’ve developed to enhance agreement making and dispute resolution processes. Some of those tools include:
- Using culture, place, ceremony, song, dance and food to bring participants together in a way that celebrates the unique strengths of our Traditional Owners and encourages the sharing of wisdom and story.
- Practising inclusion and encouraging non-adversarial, win/win approaches.
- Opening Yarns to think about, dream of and visualise what living in cultural abundance could look like.
- Focusing on mending, building and sustaining relationships and trust between participants.
So, the Treaty Authority also intends to iteratively build upon strong cultural practices. This means learning from our mobs, adopting their practices and processes where appropriate, and learning as treaties are negotiated and parties come to the table.
By centering Aboriginal law and cultural authority with a focus on Aboriginal peace building principles, processes like delegation forming and dispute resolution will be culturally strong and empower groups to reach sustainable agreements.
Conclusion
I wish to reiterate the concept of legal plurality in this country. Whether it’s recognised or not, it exists. Treaty law is novel for Australia and for Victoria. The opportunity for us is incredibly exciting. It’s an exciting meeting place where the two systems of law may speak to build stronger relationships.
To all the Aboriginal and Torres Strait Islander lawyers in the room. I encourage you to get involved, to seek to be a part of and understand this process. We need people who can understand and respect both sides, who can be fluent in both ways of the law. You have the gift of walking into worlds. Aboriginal law exists through continual practice and regeneration. It’s active and not static. Remember that engaging in cultural practices is how our law is practiced, learned and re-learned and transmitted.
To non-Aboriginal lawyers in the room. I invite you to enter a dialog with Aboriginal law. The best way to start is by engaging more deeply with your own legal tradition, to give more depth, understanding and reasoning as to why that law exists. Western lawyers, having a deeper relationship with your own law will help Western law become more adequate and more mature. Bring an open mind and open heart when entering the Treaty space. One that respects Aboriginal law. One that doesn’t take an adversarial approach to Treaty making. Be open to respecting Aboriginal spaces.