Treaty- and Voice-Ready Regulation: A Solution for Strengthening Indigenous Rights in Government Decision-Making

This article has been written for the ANZSOG-auspiced National Regulators Community of Practice (NRCoP) by Northern Territory Deputy Treaty Commissioner Ursula Raymond, a woman with Aboriginal and Torres Strait Islander cultural heritage and 30 years’ experience as a broadcaster, journalist, policy adviser, and community organizer; and Dr Guzyal Hill, NRCoP Academic Adviser and Senior Lecturer at Charles Darwin University and author of the book ‘National Uniform Legislation’. 

With an upcoming national referendum on the Aboriginal and Torres Strait Islander Voice to Parliament, there has been a growing recognition of the importance of upholding Indigenous rights in government decision-making.  

On Sunday 26 March, the Parliament of South Australia held a historic meeting and became the first Australian State to pass an Indigenous Voice to Parliament. In preparation, governments can implement a “treaty or Voice ready regulation” that ensures Indigenous rights and interests are adequately considered in all government decision-making processes. This approach would require governments to engage with Indigenous communities in a meaningful and respectful way and to take into account the principles of proper consultation and consent when making decisions that affect Indigenous people and their country.  

There are several benefits to implementing a treaty-ready regulation. First, it would help to address the historical and ongoing marginalisation of Indigenous peoples in government decision-making processes. By ensuring that Indigenous rights and interests are adequately considered, governments can promote greater equality and respect for diversity in their decision-making. Second, it would help to build trust and strengthen relationships between Indigenous communities and governments. By engaging in a respectful and meaningful way, governments can demonstrate their commitment to reconciliation and to upholding the rights of Indigenous peoples. Third, it would help to promote more sustainable and equitable development. By taking into account the perspectives and knowledge of Indigenous peoples, governments can make more informed and responsible decisions that are better aligned with the long-term interests of all Australians. 

Engaging Indigenous communities to create a Treaty-ready regulation

The first step in implementing a treaty-ready regulation would be to establish clear guidelines and principles for engagement and including Indigenous communities in this process. This would include defining the scope of the regulation and identifying the types of decisions that would be subject to it, as well as outlining the specific processes and timelines for engagement with Indigenous communities. This would require governments to provide Indigenous communities with a clear understanding of the potential impacts of the decision and to ensure that they have the opportunity to provide their consent or withhold it. If Indigenous communities do not provide their consent, governments would be required to take steps to address their concerns and seek alternative solutions that are mutually acceptable. 

Governments could also establish a dedicated unit or department responsible for overseeing the implementation of the regulation, including employing more First Nations staff at senior levels and providing resources and training to all staff on Indigenous rights and protocols. 

To ensure that the treaty-ready regulation is effective, governments would need to establish mechanisms for monitoring and enforcing compliance with the regulation. This could include establishing an independent oversight body or tribunal with the authority to review government decisions and ensure that they comply with the principles of the regulation. Governments could also establish a complaints mechanism to allow Indigenous communities to raise concerns about government decisions that they believe have not adequately considered their rights and interests. 

Drawing on the insights and recommendations from the Productivity Commission’s report on Indigenous Evaluation Strategy, the implementation of a treaty-ready regulation could be informed by several key considerations. These include: 

1. The importance of co-design and co-delivery with Indigenous communities: To ensure that the treaty-ready regulation is effective and responsive to the needs and perspectives of Indigenous communities, it will be important to engage in a co-design and co-delivery process with Indigenous communities. This would involve working collaboratively with Indigenous communities to develop the guidelines and principles for engagement, and to establish the mechanisms for monitoring and enforcing compliance with the regulation. 

2. The need for cultural competence and capacity-building: To ensure that staff in government agencies are equipped to engage with Indigenous communities in a respectful and culturally appropriate way, it will be important to invest in capacity-building and training on Indigenous rights, protocols, and cultures. This could include providing training on the history and ongoing impacts of colonisation on Indigenous peoples. 

3. The importance of data and evidence: To ensure that the treaty-ready regulation is effective and evidence-based, it will be important to invest in data collection and evaluation processes that are inclusive of Indigenous perspectives and knowledge. This could involve developing new data collection methods that are culturally appropriate and respectful of Indigenous knowledge systems, as well as establishing mechanisms for Indigenous communities to provide feedback on the impacts of government decisions. 

4. The need for ongoing evaluation and improvement: To ensure that the treaty-ready regulation is effective and responsive to the changing needs and perspectives of Indigenous communities, it will be important to establish ongoing evaluation and review processes. This could involve regular reporting on the regulation’s implementation and independent evaluations of its effectiveness and impact. 

By taking these considerations into account, governments can ensure that the treaty-ready regulation is effective, responsive, and respectful of Indigenous rights and interests. Through a commitment to co-design and co-delivery, cultural competence and capacity-building, evidence-based decision-making, and ongoing evaluation and improvement, governments can promote greater respect for Indigenous rights and reconciliation in government decision-making processes.