Treaty Vs. Surrender: Comparing Victoria'S First Peoples' Assembly, Yoorrook Justice Commission, And Treaty Authority With The 2015 South West Settlement

Treaty vs. Surrender: Comparing Victoria's First Peoples' Assembly, Yoorrook Justice Commission, and Treaty Authority with the 2015 South West Settlement

1. Executive Comparison: The Divergent Statutory Paths of Victoria and Western Australia

Within the Australian federation, two jurisdictions have advanced statutory mechanisms purporting to fundamentally restructure the legal and political relationship between First Nations peoples and the Crown: the State of Victoria and the State of Western Australia.^[1] However, a rigorous structural and comparative legal analysis reveals that these two frameworks represent diametrically opposed paradigms of Indigenous jurisprudence.^[2] Victoria has established an independent, democratic treaty-making process grounded in the foundational principle that underlying Aboriginal sovereignty and land title are inherent, unceded, and non-negotiable preconditions for treaty negotiations.^[3] Conversely, Western Australia's 2015 South West Native Title Settlement (enacted through the Noongar (Koorah, Nitja, Boordahwan) (Recognition) Act 2016 (WA) and six regional Indigenous Land Use Agreements) demanded the permanent, statutory extinguishment and surrender of all native title rights across 200,000 square kilometres of ancestral Boodjar as an absolute prerequisite for state funding.^[4]

2. Statutory Foundations: The Advancing the Treaty Process Act 2018 (Vic) vs. Noongar Recognition Act 2016 (WA)

The Victorian Parliament enacted the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic), creating Australia's first statutory framework for negotiating treaties between the Crown and Traditional Owner groups.^[5] Crucially, the Victorian legislation does not define terms of settlement or impose corporate trust templates from above; instead, it established a legislative mandate for the democratic election of the First Peoples' Assembly of Victoria—a representative body elected directly by Aboriginal Victorians and traditional owner clans.^[6]

In stark contrast, Western Australia's Noongar (Koorah, Nitja, Boordahwan) (Recognition) Act 2016 (WA) operates not as a treaty architecture, but as a legislative ratification of title surrender.^[7] Rather than empowering an independent representative assembly, the WA statute imposed a monolithic statutory schedule that symbolically "recognized" Traditional Owners while simultaneously ratifying the execution of six ILUAs under Subdivision C of the Native Title Act 1993 (Cth) that extinguished all legal property rights to country.^[8]

3. The Principle of Non-Extinguishment: Inherent Sovereign Title vs. Coerced Surrender

The most fundamental legal divergence between the two jurisdictions concerns the treatment of radical and underlying title.^[9] Under the Victorian Treaty Negotiation Framework agreed in October 2022, treaties may encompass land transfers, commercial revenue sharing, and self-government powers without requiring any clan or Traditional Owner group to extinguish or compromise their underlying rights under common law or customary law.^[10]

In Western Australia, title extinguishment was the explicit centerpiece of the state's negotiating posture.^[11] Clause 4 of each South West ILUA contains an explicit "surrender and extinguishment" clause, stipulating that upon registration, all native title rights and interests across the entire South-West region are permanently extinguished.^[12] This surrender was forced upon the Bibbullmun people under the coercive pressure that if the settlement was rejected, the state would litigate native title claims to extinction in the Federal Court under the restrictive continuity doctrines of Bodney v Bennell.^[13]

4. Truth-Telling and Subpoena Powers: The Yoorrook Justice Commission vs. Western Australian Denialism

A vital prerequisite to genuine treaty negotiation is independent, evidence-based truth-telling.^[14] In 2021, Victoria established the Yoorrook Justice Commission by letters patent, vesting it with the full statutory powers of a Royal Commission—including the power to compel witness testimony, subpoena internal government records, and issue legally binding evidentiary findings on colonial massacres, systemic land dispossession, child removal, and economic deprivation.^[15] The findings of Yoorrook directly inform the substantive terms of treaty reparations and legislative reforms.^[16]

Western Australia has enacted no equivalent truth-telling mechanism.^[17] The colonial massacres across Bibbullmun territory—most notoriously the 1834 Pinjarra Massacre led by Governor James Stirling, and the violent pacification campaigns along the Murray and Vasse rivers—have received no official state inquiry with subpoena powers.^[18] Furthermore, the state continues to actively suppress public scrutiny of its historic liabilities, particularly the unlawful repeal of Section 70 of the Western Australia Constitution Act 1889 (WA), which obligated the colonial treasury to pay 1% of gross revenues in perpetuity to First Nations welfare.^[19]

5. Institutional Machinery: The Independent Treaty Authority and the Self-Determination Fund

To guarantee absolute neutrality during negotiations, Victoria passed the Treaty Authority and Other Treaty Elements Act 2022 (Vic), establishing the Treaty Authority as a novel statutory entity completely independent of ministerial direction, political interference, and public service bureaucracy.^[20] The Treaty Authority is governed entirely by First Nations members and funded through a permanent statutory appropriation outside annual budget cycles.^[21] Furthermore, Victoria established the Self-Determination Fund, an independent financial trust capitalized with hundreds of millions of dollars administered by the First Peoples' Assembly, enabling Traditional Owners to build autonomous wealth and fund independent legal, historical, and economic research prior to negotiating substantive treaties.^[22]

In Western Australia, no independent statutory arbiter exists.^[23] The administration of the South West Settlement is tightly governed by the state-controlled "Noongar Boodja Trust", overseen by a state-appointed corporate trustee and constrained by restrictive perpetual trust deeds.^[24] Instead of an independent wealth fund, annual funding instalments are capped at ~$1.3 billion spread across 12 to 20 years, subject to strict ministerial oversight and statutory forfeiture triggers.^[25]

6. Forensic Comparison Matrix: Victoria vs. South West Settlement