NORTHERN TERRITORY OF AUSTRALIA
TREATY COMMISSIONER ACT 2020
As in force at 11 July 2020
Table of provisions
Part 1 Preliminary matters
1 Short title ......................................................................................... 1
2 Commencement .............................................................................. 1
3 Definitions ........................................................................................ 1
4 Purpose of Act ................................................................................. 2
Part 2 Office of the Treaty Commissioner
5 Establishment of Office of the Treaty Commissioner ....................... 2
6 Impartiality and independence ......................................................... 2
7 Appointment of Treaty Commissioner ............................................. 2
8 Eligibility for appointment ................................................................. 3
9 Term of appointment ....................................................................... 4
10 Conditions of appointment ............................................................... 4
11 Functions and powers ..................................................................... 4
12 Reporting ......................................................................................... 6
Part 3 Administrative matters
13 Vacancy in office ............................................................................. 6
14 Resignation...................................................................................... 7
15 Suspension and termination of appointment.................................... 7
16 Leave of absence ............................................................................ 7
17 Acting Treaty Commissioner............................................................ 8
18 Treaty Commissioner's staff ............................................................ 8
19 Oath before taking office ................................................................. 9
20 Confidentiality of information ........................................................... 9
21 Protection from liability .................................................................... 9
Part 4 Transitional and savings matters
22 Definition.......................................................................................... 9
23 Prior Treaty Commissioner .............................................................. 9
24 Validation ....................................................................................... 10
Appendix Barunga Agreement – Memorandum of
Understanding
ENDNOTES
NORTHERN TERRITORY OF AUSTRALIA
As in force at 11 July 2020
TREATY COMMISSIONER ACT 2020
An Act to establish the Office of the Treaty Commissioner
Part 1 Preliminary matters
1 Short title
This Act may be cited as the Treaty Commissioner Act 2020.
2 Commencement
This Act commences on the day after the day on which the
Administrator's assent to this Act is declared.
3 Definitions
In this Act:
Acting Treaty Commissioner, means the person appointed under
section 17.
Office of the Treaty Commissioner means the Office established
by section 5.
Territory Aboriginal Land Council means any of the following:
(a) the Anindilyakwa Land Council;
(b) the Central Land Council;
(c) the Northern Land Council;
(d) the Tiwi Land Council.
Treaty Commissioner means the Treaty Commissioner appointed
under section 7.
Part 2 Office of the Treaty Commissioner
Treaty Commissioner Act 2020 2
Treaty Commissioner's staff means the staff engaged or
employed under section 18.
Note for section 3
The Interpretation Act 1978 contains definitions and other provisions that may be
relevant to this Act.
4 Purpose of Act
The purpose of this Act is to implement the Barunga Agreement –
Memorandum of Understanding, which is set out in the Appendix to
this Act.
Part 2 Office of the Treaty Commissioner
5 Establishment of Office of the Treaty Commissioner
(1) The Office of the Treaty Commissioner is established, consisting of
the Treaty Commissioner and the Treaty Commissioner's staff.
(2) The Office of the Treaty Commissioner may be known as the
"Treaty Commission".
6 Impartiality and independence
(1) The Treaty Commissioner and the Treaty Commissioner's staff
must perform their functions and exercise their powers impartially
and independently.
(2) The Treaty Commissioner is not subject to direction by any person
about the way in which the Treaty Commissioner performs the
functions or exercises the powers of office.
(3) In performing functions or exercising powers under this Act, a
member of the Treaty Commissioner's staff is subject only to the
direction of:
(a) the Treaty Commissioner; or
(b) another member of the Treaty Commissioner's staff acting
with the authority of the Treaty Commissioner.
7 Appointment of Treaty Commissioner
(1) The Administrator may, by Gazette notice, appoint an Aboriginal
person to be the Treaty Commissioner.
(2) To be appointed as the Treaty Commissioner, a person must be:
(a) eligible under section 8; and
Part 2 Office of the Treaty Commissioner
Treaty Commissioner Act 2020 3
(b) endorsed by the Chairperson of each Territory Aboriginal Land
Council.
Note for section 7
Section 23 provides that the person acting in the position of Treaty Commissioner
before the commencement of this Act is taken to be appointed under section 7.
8 Eligibility for appointment
(1) A person is eligible for appointment as the Treaty Commissioner
under section 7 if:
(a) the person has suitable qualifications or experience relating to
the Treaty Commissioner's functions; and
(b) the person is committed to the purposes of this Act and its
underlying principles; and
(c) the person is not any of the following:
(i) a judicial officer;
(ii) a member of an Australian parliament;
(iii) a member of a local government council or of an
equivalent body in a State or another Territory;
(iv) a member of a political party;
(v) an officer of a Territory controlled entity; and
(d) the person does not have a recent political affiliation.
(2) For subsection (1)(d), a person has a recent political affiliation if, at
any time during the previous 5 years, the person:
(a) was a member of the Legislative Assembly or a local
government council; or
(b) was an office holder or elected representative of a political
party in the Territory or elsewhere in Australia; or
(c) was a member of staff of a minister; or
(d) made a reportable donation to a political party, or an
associated entity of a political party, in the Territory or
elsewhere in Australia.
Part 2 Office of the Treaty Commissioner
Treaty Commissioner Act 2020 4
(3) For subsection (2)(d), a person made a reportable donation if it was
made by the person or by a body corporate of which the person
was an office holder or majority shareholder at the time the
donation was made.
(4) In this section:
associated entity, see section 176 of the Electoral Act 2004.
reportable donation means a gift or loan that is required to be
disclosed or reported under Part 10 of the Electoral Act 2004 or
under a similar law in force in the Commonwealth or in a State or
another Territory.
Territory controlled entity, see section 3(1) of the Audit Act 1995.
9 Term of appointment
(1) The appointment of a person as the Treaty Commissioner is for a
period of 3 years.
(2) A person who is the Treaty Commissioner may be reappointed if
the person is:
(a) still eligible under section 8; and
(b) endorsed by the Chairperson of each Territory Aboriginal Land
Council.
10 Conditions of appointment
(1) The Treaty Commissioner holds office on the conditions, including
conditions about remuneration, expenses and allowances,
determined by the Administrator.
(2) The Treaty Commissioner's conditions of office:
(a) cannot provide any conditions that are contingent on the
Treaty Commissioner's performance in office; and
(b) cannot be varied during the Treaty Commissioner's term in
office.
11 Functions and powers
(1) The Treaty Commissioner has the following functions:
(a) to gauge support in the Territory for a treaty between the
Territory and Aboriginal peoples of the Territory;
Part 2 Office of the Treaty Commissioner
Treaty Commissioner Act 2020 5
(b) to consider what a treaty in the Territory should seek to
achieve;
(c) to consider whether there should be one or multiple treaties in
the Territory;
(d) to consider what form a treaty should take;
(e) to consider what outcomes are possible for Aboriginal peoples
of the Territory under a treaty;
(f) to research best practice processes to treaty negotiations and
consider which process should be used;
(g) to provide advice on matters related to a treaty between the
Territory and Aboriginal peoples of the Territory;
(h) to promote awareness of the Treaty Commission's activities
among Territorians;
(i) to perform other functions conferred on the Treaty
Commissioner by the Minister.
(2) The Treaty Commissioner has the following powers:
(a) to consult with the Territory Aboriginal Land Councils, the
Aboriginal peoples of the Territory and areas adjacent to the
Territory and Territorians in general;
(b) to establish procedures and protocols, including reporting
systems, to ensure information gathered by the Treaty
Commissioner is shared with the Territory, Territory Aboriginal
Land Councils and the Aboriginal peoples of the Territory;
(c) to facilitate communications between the Territory, Territory
Aboriginal Land Councils and the Aboriginal peoples of the
Territory in relation to the development of a framework for
future treaty negotiations;
(d) to engage consultants as the Treaty Commissioner considers
necessary to assist the Treaty Commissioner in performing
functions under this Act;
(e) to do anything necessary or convenient to be done for, or in
relation to, the performance of the Treaty Commissioner's
functions.
Part 3 Administrative matters
Treaty Commissioner Act 2020 6
12 Reporting
(1) The Treaty Commissioner must give the Minister an interim report
on the performance of the Treaty Commissioner's functions.
(2) The Treaty Commissioner must give the Minister a final report on
the performance of the Treaty Commissioner's functions within:
(a) 18 months after the Minister tables the interim report referred
to in subsection (1) in the Legislative Assembly; or
(b) a longer period determined by the Minister with the
endorsement of the Chairperson of each Territory Aboriginal
Land Council.
(3) The Minister must publicly release a copy of a report under
subsection (1) or (2) within 21 days after receiving it.
(4) The Minister must table in the Legislative Assembly a copy of a
report under subsection (1) or (2) within 21 days after receiving it or
at the next earliest opportunity.
Part 3 Administrative matters
13 Vacancy in office
(1) The office of Treaty Commissioner becomes vacant if:
(a) the Treaty Commissioner resigns under section 14; or
(b) the Treaty Commissioner's appointment is terminated under
section 15(5); or
(c) the Treaty Commissioner is found guilty of an indictable
offence, whether in the Territory or elsewhere, for which the
maximum penalty is imprisonment for a term of at least
12 months, with or without a fine; or
(d) the Treaty Commissioner becomes bankrupt, applies to take
the benefit of the law for the relief of bankrupt or insolvent
debtors, compounds with creditors or makes an assignment of
remuneration for their benefit.
(2) The office of Treaty Commissioner must not remain vacant for more
than 6 months.
Part 3 Administrative matters
Treaty Commissioner Act 2020 7
14 Resignation
The Treaty Commissioner may resign office by written notice given
to the Administrator.
15 Suspension and termination of appointment
(1) The Administrator may suspend the Treaty Commissioner from duty
if:
(a) the Treaty Commissioner becomes physically or mentally
incapable of satisfactorily performing official duties; or
(b) the Treaty Commissioner engages in corrupt conduct as
defined in section 10 of the Independent Commissioner
Against Corruption Act 2017.
(2) The Minister must immediately give the Treaty Commissioner a
statement of reasons for the suspension.
(3) The Minister must table in the Legislative Assembly the written
statement within 6 sitting days after the suspension was imposed.
(4) The Minister must table in the Legislative Assembly any written
response by the Treaty Commissioner within 6 sitting days after the
response is made.
(5) The Administrator must terminate the Treaty Commissioner's
appointment if a resolution requiring the termination is passed by a
two-thirds majority of the members of the Legislative Assembly.
(6) The suspension of the Treaty Commissioner is lifted if:
(a) the Minister does not table the statement in accordance with
subsection (3); or
(b) the Legislative Assembly does not pass a resolution in
accordance with subsection (5) within 6 sitting days after the
statement is tabled.
(7) The Treaty Commissioner is entitled to be paid remuneration and
allowances during the period of suspension.
16 Leave of absence
The Minister may grant the Treaty Commissioner leave of absence
on the conditions decided by the Minister.
Part 3 Administrative matters
Treaty Commissioner Act 2020 8
17 Acting Treaty Commissioner
(1) The Administrator may appoint a person to act as the Treaty
Commissioner during a vacancy in the office.
(2) A person may be appointed as an Acting Treaty Commissioner if
the person is:
(a) eligible under section 8; and
(b) endorsed by the Chairperson of each Territory Aboriginal Land
Council.
(3) An appointment of an Acting Treaty Commissioner during a
vacancy in the office may only be for a period or periods not
exceeding in aggregate 6 months in any 12 month period.
(4) If the office of the Treaty Commissioner is vacant for a period of
18 months, no further appointment of an Acting Treaty
Commissioner during the vacancy can be made.
(5) An Acting Treaty Commissioner holds office on the conditions,
including conditions about remuneration, expenses and allowances,
determined by the Administrator.
18 Treaty Commissioner's staff
(1) The Treaty Commissioner's staff consists of the following:
(a) a Deputy Treaty Commissioner;
(b) public sector employees employed for the purposes of the
Office of the Treaty Commissioner;
(c) persons employed in an Agency made available by the Chief
Executive Officer of the Agency under an arrangement with
the Treaty Commissioner.
(2) Subject to subsection (3), the Treaty Commissioner may engage
the services of a suitable person to be the Deputy Treaty
Commissioner without the requirement to invite tenders under the
Procurement Act 1995.
(3) The process for engaging the services of a suitable Deputy Treaty
Commissioner must be endorsed by the Chairperson of each
Territory Aboriginal Land Council.
(4) The Treaty Commissioner's staff must assist the Treaty
Commissioner to perform the Treaty Commissioner's functions and
exercise the Treaty Commissioner's powers.
Part 4 Transitional and savings matters
Treaty Commissioner Act 2020 9
19 Oath before taking office
(1) Before performing any functions as Treaty Commissioner, the
Treaty Commissioner must take an oath or make an affirmation that
the Treaty Commissioner will faithfully, impartially and truly perform
the functions of the Treaty Commissioner according to law.
(2) Before performing any functions as Acting Treaty Commissioner, an
Acting Treaty Commissioner must take an oath or make an
affirmation that the Treaty Commissioner will faithfully, impartially
and truly perform the functions of the Acting Treaty Commissioner
according to law.
(3) The oath must be administered by the Administrator.
20 Confidentiality of information
A member of the Treaty Commissioner's staff must not disclose
confidential information, obtained in the course of performing a
function or exercising a power under this Act, without the authority
of the Treaty Commissioner.
21 Protection from liability
(1) A person who is performing functions under this Act is not civilly
liable for an act done or omitted to be done by the person in good
faith in the exercise of a power or performance of a function under
this or any other Act.
(2) Subsection (1) does not affect any liability the Territory would, apart
from that subsection, have for the act or omission.
Part 4 Transitional and savings matters
22 Definition
In this Part:
commencement means the commencement of section 7 of this
Act.
23 Prior Treaty Commissioner
(1) Michael James Dodson, who was performing the functions of the
non-statutory position of Treaty Commissioner immediately before
the commencement, is taken to be the Treaty Commissioner
appointed under this Act on the commencement until 3 March 2022.
Part 4 Transitional and savings matters
Treaty Commissioner Act 2020 10
(2) For subsection (1), Michael James Dodson is taken to hold office
on the same conditions, including conditions about remuneration,
expenses and allowances, on which he performed those functions
immediately before the commencement.
24 Validation
(1) Any act performed or purported to have been performed by
Michael James Dodson while he was performing the functions of
the non-statutory position of Treaty Commissioner immediately
before the commencement is taken to be an act performed or
purported to have been performed under this Act.
(2) To avoid doubt, any interim report given by Michael James Dodson
to the Minister before the commencement is taken to be the interim
report referred to in section 12(1).
Appendix Barunga Agreement – Memorandum of Understanding
Treaty Commissioner Act 2020 11
Appendix Barunga Agreement – Memorandum of
Understanding
section 4
THE BARUNGA AGREEMENT
A MEMORANDUM OF UNDERSTANDING TO PROVIDE FOR THE
DEVELOPMENT OF A FRAMEWORK FOR NEGOTIATING A TREATY
WITH THE FIRST NATIONS OF THE NORTHERN TERRITORY OF
AUSTRALIA
BETWEEN
THE NORTHERN LAND COUNCIL (NLC), THE CENTRAL LAND COUNCIL
(CLC), THE ANINDILYAKWA LAND COUNCIL (ALC) AND THE TIWI LAND
COUNCIL (TLC)
(THE ABORIGINAL LAND COUNCILS)
and
THE NORTHERN TERRITORY GOVERNMENT
(THE NTG)
The Aboriginal Land Councils are independent statutory authorities
established under the Aboriginal Land Rights (Northern Territory) Act 1976 to
express the wishes and protect the interests of traditional owners throughout
the Northern Territory. The members of the Land Councils are elected by
Aboriginal people living in their areas. The NLC and CLC are also Native Title
Representative Bodies recognised under the Native Title Act 1993 to promote
the interests of native title holders across the Territory (‘Traditional owners’
include native title holders).
The NTG is the democratic, representative and executive arm of the Northern
Territory. Its functions and powers derive from the Northern Territory Self
Government Act 1978, which established the Northern Territory of Australia as
a body politic under the Crown.
BACKGROUND TO THE MEMORANDUM OF UNDERSTANDING:
This Memorandum of Understanding (MOU) represents the first significant
step in advancing a Treaty in the Northern Territory since the call for a
national treaty in the historic Barunga Statement by the Northern and Central
Land Councils.
The Barunga Statement was presented to former Prime Minister, RJ Hawke
AC, by Mr Galarrwuy Yunupingu AM and Mr Wenten Rubuntja at the annual
Barunga Cultural and Sporting Festival on 12 June 1988.
Appendix Barunga Agreement – Memorandum of Understanding
Treaty Commissioner Act 2020 12
The text of the Barunga Statement is as follows:
We, the Indigenous owners and occupiers of Australia, call on the
Australian Government and people to recognise our rights:
• to self-determination and self-management, including the freedom to
pursue our own economic, social, religious and cultural development;
• to permanent control and enjoyment of our ancestral lands;
• to compensation for the loss of use of our lands, there having been no
extinction of original title;
• to protection of and control of access to our sacred sites, sacred objects,
artefacts, designs, knowledge and works of art;
• to the return of the remains of our ancestors for burial in accordance with
our traditions;
• to respect for and promotion of our Aboriginal identity, including the
cultural, linguistic, religious and historical aspects, and including the right
to be educated in our own languages and in our own culture and history;
• in accordance with the universal declaration of human rights, the
international covenant on economic, social and cultural rights, the
international covenant on civil and political rights, and the international
convention on the elimination of all forms of racial discrimination, rights
to life, liberty, security of person, food, clothing, housing, medical care,
education and employment opportunities, necessary social services and
other basic rights.
We call on the Commonwealth to pass laws providing:
• A national elected Aboriginal and Islander organisation to oversee
Aboriginal and Islander affairs;
• A national system of land rights;
• A police and justice system which recognises our customary laws and
frees us from discrimination and any activity which may threaten our
identity or security, interfere with our freedom of expression or
association, or otherwise prevent our full enjoyment and exercise of
universally recognised human rights and fundamental freedoms.
We call on the Australian Government to support Aborigines in the
development of an international declaration of principles for indigenous
rights, leading to an international covenant.
And we call on the Commonwealth Parliament to negotiate with us a Treaty
recognising our prior ownership, continued occupation and sovereignty
and affirming our human rights and freedom.
Appendix Barunga Agreement – Memorandum of Understanding
Treaty Commissioner Act 2020 13
The call for the Commonwealth Parliament to negotiate a national treaty has
yet to be realised. However, thirty years later, the Aboriginal Land Councils
remain fully committed to the goals and aspirations articulated in the Barunga
Statement.
The NTG, for the first time in its history, is also committed to commencing
discussions on developing a Treaty (or Treaties) in the Northern Territory with
Aboriginal Territorians. It has established an Aboriginal Affairs Sub-
Committee of the Northern Territory Cabinet to advance a number of
Aboriginal Affairs priorities including a Treaty.
The Aboriginal Land Councils wrote to the Chief Minister of the Northern
Territory on 2 March 2018 proposing to reach an MOU with the NTG outlining
a consultation process for a Treaty with Aboriginal people that is led by
Aboriginal people.
At an historic meeting between the Aboriginal Land Councils and the NTG on
23 March 2018 in Alice Springs it was agreed to establish a Treaty Working
Group to develop the MOU.
It is intended that this MOU provides the opportunity, building on the
significance of the 30th anniversary of the Barunga Statement, to facilitate
consultation with all Aboriginal people in the Northern Territory to allow for a
framework to be agreed for negotiating a Treaty.
Subject to the Northern Territory (Self-Government) Act 1978, the Legislative
Assembly has power, with the assent of the Administrator or the
Governor-General to make laws for the peace, order and good government of
the Territory.
It is acknowledged that there is a range of Aboriginal interests in the Northern
Territory and that all Aboriginal people and their representative bodies must
have the opportunity to engage fully in the process agreed to in this MOU.
It is further acknowledged that non-Aboriginal Territorians need to be brought
along with this process.
It is understood that the use of the word Treaty in this MOU also includes the
plural “Treaties” should the proposed framework include provision for
negotiating multiple treaties.
Appendix Barunga Agreement – Memorandum of Understanding
Treaty Commissioner Act 2020 14
IT IS AGREED BY THE NORTHERN LAND COUNCIL, THE CENTRAL LAND
COUNCIL, THE ANINDILYAKWA LAND COUNCIL AND THE TIWI LAND
COUNCIL and THE NORTHERN TERRITORY GOVERNMENT as follows:
PRINCIPLES GUIDING THE TREATY CONSULTATION PROCESS
It is envisaged that should a Treaty ultimately be negotiated, it will be
the foundation of lasting reconciliation between the First Nations of the
Territory and other citizens with the object of achieving a united
Northern Territory.
All Aboriginal people of the Northern Territory need to be heard and the
consultation process agreed to in this MOU needs to be inclusive,
accessible and transparent to all.
Traditional owners, as the original owners and occupiers of the
Northern Territory, and represented by the Aboriginal Land Councils,
are integral to consultation concerning a Treaty.
All Territorians should ultimately benefit from any Treaty that is agreed
in the Northern Territory.
The NTG must not exclude from discussions any legitimate issue
raised by the Parties or other Aboriginal people for inclusion in a Treaty
while the consultation process agreed to in this MOU is underway.
It is agreed that:
a) Aboriginal people, the First Nations, were the prior owners and
occupiers of the land, seas and waters that are now called the
Northern Territory of Australia.
b) The First Nations of the Northern Territory were self-governing
in accordance with their traditional laws and customs; and that
c) First Nations peoples of the Northern Territory never ceded
sovereignty of their lands, seas and waters.
It is also agreed there has been deep injustice done to the Aboriginal
people of the Northern Territory, including violent dispossession, the
repression of their languages and cultures, and the forcible removal of
children from their families, which have left a legacy of trauma, and loss
that needs to be addressed and healed.
The Treaty must provide for substantive outcomes and honour the
Articles of the United Nations Declaration on the Rights of Indigenous
Peoples.
Recognising that a treaty is of much wider significance than a normal
agreement between the State and Indigenous peoples, it is also
recognised that Treaty making involves the acceptance of
responsibilities and obligations by all parties;
The Treaty should aim to achieve successful co-existence between all
Territorians that starts with ‘truth telling’ which involves hearing about,
acknowledging and understanding the consequences of the Northern
Territory’s history.
Appendix Barunga Agreement – Memorandum of Understanding
Treaty Commissioner Act 2020 15
OBJECTIVES OF THE MEMORANDUM OF UNDERSTANDING:
The objective of this MOU is to agree about and to implement a consultation
process to be led by an independent Treaty Commissioner, which will inform
the development of an agreed framework to negotiate a Northern Territory
Treaty.
This framework may focus on, but not be limited to, the following areas:
• Agreement as to what a treaty is and its potential contents;
• What a Northern Territory treaty will seek to achieve;
• Whether there should be one or multiple treaties;
• What outcomes are possible under a Treaty for Aboriginal people that
encompass recognition as First Nations, rights, obligations and
opportunities; and
• What the best process is for negotiating a Treaty.
The key objective of any Treaty in the Northern Territory must be to achieve
real change and substantive, long term, benefits for Aboriginal people. A
Treaty needs to address structural barriers to the wellbeing of Aboriginal
people in the Northern Territory and provide for economic, social and cultural
benefits.
APPOINTMENT OF AN INDEPENDENT TREATY COMMISSIONER
The NTG will appoint an independent Aboriginal person as Treaty
Commissioner. The appointment, role and functions of the Treaty
Commissioner will be enacted in legislation, the contents of which shall be
agreed by the parties.
In the interim the Chief Minister shall appoint the Treaty Commissioner to
consult, inquire, report and make recommendations in accordance with Terms
of Reference agreed by the parties. The Terms of Reference shall outline, in
accordance with this MOU, the role, responsibilities, outputs, reporting
requirements, term of appointment and qualifications of the Treaty
Commissioner.
The role and functions are to include:
Consultation with all Aboriginal people and their representative bodies in
the Northern Territory about their support for a Treaty and on a suitable
framework to further Treaty negotiations with the NTG;
Providing a public report to the Chief Minister on the outcomes of the
consultation process and a proposed framework for Treaty negotiations; and
Facilitating conversations for a possible Treaty framework process between
the NTG, Aboriginal Land Councils and other Aboriginal representative
bodies, and community groups.
Appendix Barunga Agreement – Memorandum of Understanding
Treaty Commissioner Act 2020 16
The Treaty Commissioner will be independent of the NTG and Aboriginal
Land Councils. The reasonable costs of a Treaty Commissioner to perform
the roles and functions and achieve the objectives listed in this agreement, will
be paid for by the NTG.
CONSULTATION PROCESS
The Treaty Commissioner will devise and implement an Aboriginal-led
consultation program after discussions with the Treaty Working Group. That
program will have two stages and include:
• In the first stage (to take no more than 12 months), advising and
sharing information and ideas about different experiences nationally
and internationally and models of what a Treaty could be with
Aboriginal Territorians;
• Explanations of the legal context of a Northern Territory Treaty;
• Initial consultations to determine the level of interest in a Treaty
amongst Aboriginal Territorians and the provision of an interim report
by the Treaty Commissioner to the Chief Minister to be tabled in the
Legislative Assembly;
• At the start of the second stage, release of a public Discussion Paper
to help facilitate informed discussions among Aboriginal people that are
focussed on reaching a consensus on particular positions with respect
to a Treaty;
• Translating the Discussion Paper into the major Aboriginal languages
in the Northern Territory (including audio translations) by the Northern
Territory Aboriginal Interpreter Service;
• Multiple methods for Aboriginal Territorians to give feedback;
• Consultations will follow a structured and principled process utilising an
identical agenda for consistency across locations;
• Land councils will provide advice to the Treaty Commissioner on
locations for regional and remote consultations taking into account
small, medium and large communities and homelands; and
• A final report on outcomes of consultations about a possible Treaty and
proposing a framework for a Treaty to proceed. The report is to be
provided to the Chief Minister within 18 months of the conclusion of the
first stage, tabled in the Northern Territory Legislative Assembly and
shall be publicly released by the Chief Minister within 21 days of its
receipt.
Coordination and Support
The NTG and the Land Councils will cooperate to support the consultation
process to be undertaken by the Treaty Commissioner in regional and remote
locations.
Appendix Barunga Agreement – Memorandum of Understanding
Treaty Commissioner Act 2020 17
The Parties will work together with the Treaty Commissioner to establish
consultation protocols for Treaty matters. This will include ensuring the
ongoing cooperation of all Parties in consultations across the Northern
Territory and the provision of consistent information. Respective parties will
also keep the Treaty Commissioner informed of any discussions concerning a
Treaty to enable all Aboriginal voices to be heard by the Commissioner.
TREATY WORKING GROUP
The Northern Territory Treaty Working Group membership will continue to
comprise senior representatives of the NTG and Aboriginal Land Councils.
However, by agreement, after the signing of the MOU, its membership will be
reviewed and opened up to other Aboriginal representative bodies and
community groups in the Northern Territory to also participate.
After the appointment of the Treaty Commissioner the continuation and terms
of reference for the Treaty Working Group will be further reviewed.
RELATED MATTERS
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
At the time this MOU is being signed, the Commonwealth Parliament has
established a Joint Select Committee on Constitutional Recognition Relating
to Aboriginal and Torres Strait Islander Peoples 2018.
This follows a constitutional convention on 23-26 May 2017 that brought
together over 250 Aboriginal and Torres Strait Islander leaders at the foot of
Uluru in the Northern Territory on the lands of the Aṉangu people. The
majority resolved, in the ‘Uluru Statement from the Heart’, to call for the
establishment of a ‘First Nations Voice’ in the Australian Constitution and a
‘Makarrata Commission’ to supervise a process of ‘agreement-making’ and
‘truth-telling’ between governments and Aboriginal and Torres Strait Islander
peoples.
The NTG and Aboriginal Land Councils agree to contribute to the
deliberations of the Joint Select Committee and hope that it will be possible to
achieve constitutional recognition that also includes a Commonwealth treaty
making process.
Negotiating a Northern Territory Treaty does not remove the need for a Treaty
at a national level, accompanied by ‘truth telling’ or a voice to the Parliament.
A Northern Territory Treaty cannot address all the consequences of the British
taking control of the land, seas and waters of the Northern Territory and its
legacy of injustice. A Federal treaty process is a crucial next step in our
journey as a nation.
Appendix Barunga Agreement – Memorandum of Understanding
Treaty Commissioner Act 2020 18
STATUS OF THE MEMORANDUM OF UNDERSTANDING
The Parties do not intend any of the provisions of this Agreement to be legally
enforceable. However, that does not lessen the commitment of the Parties to
fully implementing the Agreement in a transparent, consultative and
accountable manner.
To facilitate this, it is agreed by the Parties that the Agreement will be
published immediately on the websites of the Parties once it is signed and
tabled in the Legislative Assembly as soon as possible and that quarterly
updates will be made publicly available by the Treaty Commissioner.
TIMEFRAME, MODIFICATION AND TERMINATION
The term of this MOU is for a period of three years, starting on 8 June 2018,
unless otherwise extended or terminated.
Any modification or extension of this Memorandum must be in writing and
signed by all parties.
It is not intended that any party will seek to withdraw from this Memorandum.
However, should they contemplate doing so, it is agreed that this should be a
last resort because one or more parties are unable to resolve their concerns
and only after consulting with all other parties and doing their utmost to settle
differences in the interests of all Territorians.
EXECUTED AS A MEMORANDUM on this eighth (8th) day of June 2018 at
Barunga, Northern Territory.
The Honourable Michael Gunner MLA Chief Minister of the Northern Territory
for and on behalf of the Northern Territory of Australia
Chair of Northern Land Council
Chair of Central Land Council
Chair of Anindilyakwa Land Council
Chair of Tiwi Land Council
ENDNOTES
Treaty Commissioner Act 2020 19
ENDNOTES
1 KEY
Key to abbreviations
amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted
nc = not commenced
2 LIST OF LEGISLATION
Treaty Commissioner Act 2020 (Act No. 24, 2020)
Assent date 10 July 2020
Commenced 11 July 2020 (s 2)