OBLIGATIONS OF CONDUCT: PUBLIC LAW - TREATY ADVICE.

• Date: 01 December 2020
• Author: McMillan, Mark

CONTENTS I Introduction II Preamble: Office of Indigenous Jurisprudent and Legal Scholar III Advice IV Welcoming the Obligation A What Might Be Meant by 'Public Law'? B The Obligation Is Not New V The Conduct of the State VI Treaty: Relationship A Australia B International Practice of Treaty Relations 1 Institutional Conduct 2 British Columbia 3 New Zealand 4 Public Law and Public Institutions VII Concluding Responses A What Are the Options for the Legal Form a Treaty (or Treaties) Could Take? What Is the Most Appropriate and Effective Option? B What Matters Should a Treaty (or Treaties) Cover? In Answering This You Should Consider Any Potential Constitutional Limitations for a State-Based Treaty C How Should a Treaty Authority Be Established as the Independent Body Responsible for Overseeing and Facilitating Treaty Negotiations? Regard Should Be Had to International Best Practice VIII Closing Comment I INTRODUCTION

How might a state take up its public obligations and conduct itself well in relation to Indigenous laws and peoples? Treaty has been a long held requirement of Aboriginal peoples in Australia.

The Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) ('Treaty Process Act') makes explicit that as a sovereign entity, the State of Victoria has taken up the obligation to understand the relationship that a treaty might offer. (1) As a consequence, in collaboration with Aboriginal people in Victoria, from 2018, the State of Victoria began to develop a contemporary account of its own responsibilities. This included serious consideration of how to listen to, and act on, what Aboriginal people declare to be of critical importance to them. Following the Treaty Process Act, the Department of Premier and Cabinet sought advice on matters of constitutional law, State public law, and Indigenous community and nation. For the first time, it sought this advice from senior Indigenous legal scholars in Australian universities, and on the topic of its own obligations to law. By virtue of who was invited to give the advice, the State of Victoria has recognised that its own public obligations could be acknowledged according to more than one law and more than one jurisprudence. At the centre of such advice giving is an awareness of the quality of the formal and substantive relationships of law that might be established through entering treaty relations. In this respect the advice belongs to a long tradition of transnational engagement with the conduct of lawful (as opposed to lawless) relations. (2)

As a Wiradjuri man, scholar and jurisprudent, Mark McMillan was one of those invited to present the State with advice. The advice was written in July 2018, and with the obligations that attach to the office of Indigenous jurisprudent and legal scholar (as opposed to an advocate or bureaucrat). In undertaking this task, Mark worked with long-term collaborators (non-Indigenous lawyers, jurisprudents and historians) to exemplify the practices of the conduct of lawful relations. This advice is written in collaboration with David Foster, Ann Genovese, Shaun McVeigh and Maureen Tehan, who have brought to the task their own experiences of law, and of the conduct of lawful relations, within Victoria and elsewhere.

Advising the State of Victoria on its public law obligations necessarily meant bringing concerns with Aboriginal sovereignty to bear on the understanding of lawful and legal responsibilities. Our framing and source for these responsibilities draws on plural sources of authority and practices of law. Many of these responsibilities that relate to the practices of scholarship, diplomacy and civic life are shared by the advice writers; we note, however, that they are addressed differently by Indigenous and non-Indigenous scholars.

The text that follows begins with a preamble explaining the office of Indigenous jurisprudent written by Mark McMillan. The text then turns to present the advice that we have given to the Department of Premier and Cabinet of the State of Victoria. The writing of an advice to government is an established legal genre. It has its own conventions and style of presentation. These establish a range of questions which join law to conduct and, perhaps, policy. The advice presented here has stayed within the limits of this genre. However, because it is an advice to government written from the office of Indigenous jurisprudent, based within a university, it is necessary to make visible how such an office carries responsibilities for more than one law and more than one form of knowledge. It also takes as its starting point the fact that the State of Victoria is already bound to the authority of both non-Indigenous and Indigenous law and jurisprudence. (3) The current treaty engagements represent a deepening and, perhaps, a transformation of relations. The preamble addresses these questions and positions the advice. Further, although this article was written as a legal advice addressed to government, we acknowledge that its re-production here, to the readers of a law journal, required some small changes. We have added several footnotes and slightly altered the form of the advice by removing some of the summaries and changing some of the headings to sustain narrative continuity. We have also added a short note at the end to emphasise and draw out the sense of collaboration involved in the conduct of lawful relations. This is of course an aspect of the legal conclusions, but also a reflection of the experience of its writers, working together to produce the advice.

II PREAMBLE: OFFICE OF INDIGENOUS JURISPRUDENT AND LEGAL SCHOLAR

Undertaking the work of giving academic advice to the State of Victoria ('State') requires that I identify my standpoint. I am a Wiradjuri citizen and therefore a person of law. I am also a trained lawyer and legal scholar in the Western tradition. It is the combining of these two existences that provides the proper basis for offering to you a possible praxis that any treaty-making framework offers to us all as Victorians.

At the centre of the existences of two laws and traditions of legal thought is a framework that authorises the rights and responsibilities of people and gives shape to their aspirations. This is true of both Aboriginal and Anglo-Australian law and legal thought. This advice is required to place Treaty within the complex environments where these systems of law are continually operating. In that operation, the systems are both independent of each other and yet dependent on each other for function and efficacy. It is this requirement for the forms of law to work effectively that is the focal point that I address as a Wiradjuri person of law. The questions are: how do these existences of law relate to each other, and be in relation with each other? Put another way: how do the State and Traditional Owners and Aboriginal people of Victoria conduct these law relations?

This advice brings to bear the obligations and possibilities of Traditional Owners and Aboriginal people of Victoria and the State to conduct such lawful relations as a response to, and requirement of, the 1992 decision in Mabo v Queensland [No 2] ('Mabo [No 2]') (4)--as a matter of public law.

As a Wiradjuri jurisprudent, I take up the central responsibility to ensure that there is articulation and evidence of the ongoing encounter in the everyday between multiple systems of law. I take up the responsibility for articulating that Traditional Owners and Aboriginal Victorians have had some 70,000 years of conducting lawful relations between sovereign entities; that such experience and conduct is brought to bear and properly framed within the Treaty environment that the State has recently constructed in the present; that Traditional Owners of Victoria have since time immemorial engaged with their own and distinctive public law.

Bringing into relation concepts, practices and traditions of Aboriginal public law with the concepts, practices and traditions of public law in Anglo-Australian legal discourse will make visible and available the conduct of lawful relationships that is both the hope and obligation of law itself. Such illumination of hope and obligation of treaties between Traditional Owners and Aboriginal peoples of Victoria and the people of Victoria through the State will make visible and available the conduct of relations as an activity of the everyday for all Victorians.

The three questions from the Department of Premier and Cabinet to which this advice was directed are as follows:

1 What are the options for the legal form a treaty (or treaties) could take? What is the most appropriate and effective option?;

2 What matters should a treaty (or treaties) cover? In answering this you should consider any potential constitutional limitations for a state-based treaty; and

3 How should a Treaty Authority be established as the independent body responsible for overseeing and facilitating treaty negotiations? Regard should be had to international best practice.

III ADVICE

This advice is presented from within the office of jurisprudent and the university (and as such differs from a legal advice given from the law office). It has taken as its central concern the deepening of the account of public obligation and relationship found within the public law of Victoria. We have drawn out the following points of orientation to assist in developing the mode, manner and substance of treaty- and agreement-making and to help articulate the quality of lawful relations that might emerge through such activities.

Our advice is shaped by the following commitments to public law and treaty.

1 The Aboriginal peoples of Australia and the Pacific have a long tradition of agreement-making, mutual obligation and the conduct of lawful relations. (5) This tradition was in place before British colonial occupation and settlement and has continued since 1788. (6) By deciding to enter a treaty or treaties with...