This month in Paris, UNESCO began to assess Australia’s bid to have the Budj Bim cultural landscape added to the World Heritage List. If successful, it will be the first Australian heritage site to be nominated exclusively for its Aboriginal cultural values, says Michael Bell, a Gunditjmara descendant. And it would be momentous for traditional owners to have their continual connection to country recognised on the world stage. “It’s an old story about Australian history; it’s longer than 200 years old,” says Bell. The long history of Victoria’s first people, and how to acknowledge and redress the damage wrought on them by colonisation, also lies at the heart of the state’s treaty process, now under way. False dawn?: Noel Pearson signs a canvas on which the Uluru Statement from the Heart was later painted in May. Credit:Alex Ellinghausen

Victoria could become the first Australian state to sign a treaty, or treaties, with its Aboriginal residents, and nationally many eyes are on the process. There are hopes it could complement - or offer a potent alternative to - stalled attempts to recognise Indigenous Australians in the Constitution. The Uluru Statement from the Heart - the substance of which was swiftly rejected by Prime Minister Malcolm Turnbull - demanded a commission to supervise a process of “agreement-making” between governments, widely understood as a reference to treaties. Put simply, a treaty is a formal agreement between Indigenous peoples and those who have colonised their land. It’s not a new concept; since colonisation, Aboriginal and Torres Strait Islander Australians have asserted their sovereignty and demanded self-determination. And they’ve been promised action before. During the Bicentennial in 1988, prime minister Bob Hawke visited the Northern Territory and was presented with the Barunga statement of Aboriginal political objectives by elders Galarrwuy Yunupingu and Wenten Rubuntja.

June 1988: Then prime minister Bob Hawke receives the Barunga statement from Galarrwuy Yunupingu in Arnhem Land. Hawke said a treaty would be made within two years. But nothing eventuated, prompting Indigenous band Yothu Yindi to release the hit Treaty, propelling the term into the public consciousness: “Well I heard it on the radio/ And I saw it on the television/ Back in 1988 all those talking politicians/ Words are easy, words are cheap/ Much cheaper than our priceless land/ But promises can disappear/ Just like writing in the sand/ Treaty yeh, treaty now.” Thirty years on, and two states are now in treaty negotiations, with the Northern Territory also considering the concept. In South Australia about $4 million was pledged by the former Labor government to develop a treaty, but with the incoming Liberal government this process is expected to falter.

Newly-elected Premier Steven Marshall described treaties as “a cruel hoax” during his election campaign, and said symbolism would be “scrapped” in favour of practical outcomes. Incoming South Australian Premier Steven Marshall has called treaties "a cruel hoax". Credit:Alex Ellinghausen In Victoria, $28.5 million was set aside in last year’s budget to develop a treaty - or treaties - over the next five years. On Wednesday, legislation will be tabled in parliament that will commit to advancing the treaty process between Aboriginal Victorians and the state, and traditional owners will speak on the floor of parliament. One of these is Mick Harding, a Taungurung elder and chair of the Treaty working group, who’ll acknowledge the traditional owners, their ancestors and everyone in the chamber in his language: woiwurrung gi, boonwurring gi, liwik nugal-dhan gaaguk yumaagu gi.

“We are nearly 200 years into this state and no one has been honest enough or bold enough to strike a treaty with us as first people,” says Harding. “It would go a long way to our maturity as a country.” When the Native Title Act was passed, a reactionary media howled about backyards and houses being up for grabs, says Harding. Mick Harding has been integral to getting the Victorian treaty process started, and will speak in parliament when the first piece of legislation is tabled. Credit:Justin McManus And he remembers when the Aboriginal and Torres Strait Islander flags flew over Parliament House in Canberra and some said the sky would fall in. But it hasn’t. “The most important thing is to be calm, and lay the facts on the table when the naysayers get started."

Treaty: The great Australian absence In 1835, on the banks of a “a lovely stream of water” (most likely the Merri Creek in Northcote), English colonists and graziers John Batman and Joseph Gellibrand made an agreement, later called “Batman’s Treaty”, with a group of Wurundjeri elders. About 240,000 hectares of the area later known as Melbourne was exchanged for blankets, tomahawks, knives and other domestic items. This “treaty” was quickly ruled void by the colonial administration, and its validity has since been widely disputed, given the European approach to property ownership was antithetical to Indigenous relationships to land. There’s also a growing momentum for Batman’s legacy in Melbourne to be recontextualised, to recognise his brutal role in killing Aboriginal Tasmanians and abducting Indigenous children. A non-contemporary engraving of John Batman meeting Aborigines on the banks of the Merri Creek.

Aside from this problematic example, Australia has no history of treaty-making. In fact we’re the only postcolonial Commonwealth country that doesn’t have a treaty with its Indigenous peoples. In Canada, the United States and New Zealand, colonial governments made historic treaties, and have also negotiated contemporary "nation-to-nation" agreements with Indigenous tribes and clans. Each treaty is particular to its location, but there are common themes. Symbolic recognition might include acknowledgement of historic wrongs, official apologies, recognising Indigenous sovereignty and introducing Indigenous place names. It can also clarify how the relationship between government and Indigenous peoples should proceed. Marcia Brown Martel sings outside Canada's parliament in October following the announcement of compensation for victims of the "Sixties Scoop", during which Indigenous Canadians were taken from their homes and adopted into non-Indigenous families. Credit:AP

Practically, treaties may include the right to self-government, land rights, language and resource rights, lawmaking powers and financial compensation. A treaty doesn’t have to be singular. It’s not unusual for an overarching treaty to be negotiated with Indigenous people and then smaller, regional treaties to be reached with clans or family groups. But it’s not a quick process: a successful treaty needs long-term political commitment over a period of years, sometimes decades. The Victorian process began in earnest in 2016, after a long grassroots campaign. In Melbourne, more than 500 Indigenous leaders from across the state met to discuss the national push for recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. Gunditjmara elder Richard Frankland addresses a forum on self-determination and treaties at the Melbourne Convention Centre in May 2016. Credit:Justin McManus

It was the first major consultation with Aboriginal Victorians for many years, and after two days of vocal and passionate discussion the meeting unanimously opposed Constitutional recognition. Instead, they called for treaty. Richard Frankland - musician, filmmaker and associate professor of the Wilin Centre at Melbourne University - found himself jumping on stage to make an impromptu speech, rousing the audience to show support. “Thirty-eight nations are here and it’s up to them to decide if they want a treaty … let’s take it to the people,” Mr Frankland implored the crowd. “I want my children to have a voice." “The first thing a treaty can do is instigate hope in a people who have been battered about in a nation where there is a lot of confusion about the place of Indigenous Australians,” he says now. A treaty can hold powerful symbolic and substantive force, says Professor Kirsty Glover of Melbourne’s University’s Law School.

In New Zealand the principles contained in the Treaty of Waitangi, a three-paragraph document signed in 1840, must be referred to when a new policy or laws are developed. The Waitangi Sheet of the Treaty of Waitangi, signed between the British Crown and various Maori chiefs in 1840. The treaty guarantees Maori chiefs their powers of chieftainship (rangatiratanga) and protects their rights to their lands, fisheries, forests and treasures (taonga). Each time a minister presents new legislation in the New Zealand parliament they are obliged to describe how it interacts with the Treaty of Waitangi. A treaty could establish a good working relationship between Aboriginal Victorians and the state, says Glover.

“These groups have been governing their traditional territories for thousands of years, they just haven’t been able to have proper government-to-government relationships.” With the Victorian government on board, a treaty working group formed to seek guidance from Aboriginal people about how they wanted to be represented. There are about 52,000 Aboriginal people living in Victoria, equally spread between the regional and metropolitan areas. This consultation took place in community meetings and through online feedback, and the working group estimates about 7500 people have engaged in the process so far. To date, much of the focus has been on establishing a structure for the treaty process. Only once the groundwork is prepared can the negotiations begin.

Creating this structure, and establishing an elected Aboriginal representative body, is the job of Jill Gallagher, the newly appointed Victorian Treaty Advancement Commissioner. This representative body will design the framework that outlines who can negotiate a treaty, or treaties, what can be negotiated and how these negotiations will be carried out. A Gunditjmara woman, Gallagher has witnessed the legacy of colonisation throughout her life. Jill Gallagher, Victoria's Aboriginal treaty advancement commissioner. Credit:Jason South She has worked at Museums Victoria on the return of skeletal remains and cultural property, she lived in Fitzroy when it was a crucible for Aboriginal activism rather than real estate gentrification, and for almost two decades she was head of the Aboriginal health organisation VACCHO.

She’s known as a no-nonsense, warm and pragmatic negotiator. “My ancestors walked this country when there was a land bridge between Victoria and Tasmania,” says Gallagher. “A treaty will acknowledge we were the first people of this country, and we never ceded sovereignty. That’s fundamental. And there needs to be both symbolic and substantive outcomes.” Gallagher is careful to point out the treaty negotiations have not yet begun and no decisions have been made about what may be ruled in - or out - of any agreement. But from the outset she wants to address the issue that could stalk the treaty process: land ownership. Treaty won’t have any effect on private land ownership or native title, she says. But it’s likely to consider land in the context of Aboriginal dispossession. For example, a fund could be established to buy back land, so that if a block of private land was for sale and a local clan wanted to buy it, there would be money available.

Speaking personally, Gallagher would like to see Victorian Aboriginal languages and culture given greater prominence, and points to language “nests” in New Zealand; an immersion-based approach to language revitalisation. “We sit in this beautiful city and the only way you know Aboriginal people live here is our flag flying at Parliament House. Settlement was rapid, and brutal ... we have to have a cultural renaissance." When Victorian Aboriginal Affairs Minister Natalie Hutchins took on the portfolio in 2014, she launched into the role with a “listening tour” around the state. Aboriginal Affairs Minister Natalie Hutchins. Credit:Justin McManus “I got yelled at constantly,” Hutchins recalls with a wry smile. And when she asked Indigenous Victorians about their aspirations the response at every board meeting, every informal cuppa, was the same: treaty.

The Aboriginal community expects to gain better recognition and rights from the treaty process, Hutchins says. They also want the intergenerational legacy of colonisation acknowledged. “Nothing sharpens my mind more than dealing with people who are Stolen Generations and seeing how all their indicators can be traced back to being removed from their families,” Hutchins says. Talk of a treaty has prompted some interesting questions from non-Aboriginal Victorians, including “will I have to give my art back?”. “Well”, says Hutchins in a droll voice, “I ask them …did you steal the art, or did you pay for it?” Joking aside, the answer is no (unless you stole it). Any detailed arrangements struck in a treaty would ideally be delivered by Aboriginal organisations. Hutchins points to the Budja Budja Neighbourhood House in Halls Gap as an example that could be replicated.

The centre encourages the community in with free cultural workshops and elder and child care groups, and the adjoining medical centre has achieved some of the best diabetes and immunisation outcomes in the state. Victoria's opposition has yet to declare its policy on a treaty, but a few Liberal and Nationals MPs attended this month's launch of the Treaty Advancement Commission, inside the Queen's Hall in Parliament House. Among them was Roma Britnell, Liberal MP for South-West Victoria, who spent 15 years managing a health service at the Framlingham Aboriginal community near Warrnambool. Britnell says she is optimistic that a treaty will help to unite Aboriginal and non-Aboriginal Victorians rather than stir up division like the native title issue did. "I can’t see that it will do anything but help people to go forward and embrace the future," she says.

But the treaty process already has one notable sceptic in parliament: Lidia Thorpe, Greens Aboriginal Affairs spokeswoman and Victoria’s first female Aboriginal MP. Lidia Thorpe speaks to protesters before an "invasion day" march on January 26. Credit:Chris Hopkins Thorpe supports a clan-based treaty, or series of treaties with each clan, but says she fears the process is being rushed to suit the Andrews government’s agenda, leaving many Aboriginal people sidelined. “A clan-based treaty is really about ensuring that every family, clan, grassroots group across this state has a right to participate and understands what a treaty could mean for that family,” Thorpe said. “I don’t think that the process so far has provided that opportunity.”

Thorpe won’t commit to supporting the government’s treaty legislation before she sees it. The most important thing a treaty must do, she says, is draw a line underneath the suffering that has been wrought by European colonisation. A true and equal agreement would bring relief to the symptoms of that dispossession, such as high incarceration rates and continuing removal of Aboriginal children from their families, she says. “There has never been an agreement between the first people of this country and the occupiers,” Thorpe says. “So to have that settled would bring peace to this country between black and white and allow healing.” Gary Murray, a member of the executive of the Victorian Traditional Owner Land Justice Group, also has misgivings about the process, saying members of the working group and community assembly were hand-picked by government.

Murray would like to see a treaty negotiated with individual Victorian clans, but says the community comes to the negotiating table with no resources and little clout: “It’s a process that is absolutely biased and resourced in favour of government.” Gallagher acknowledges the treaty process has its critics but says the Victorian Treaty Advancement Commission has been established at arm’s length from government to give it independence. She hopes in her lifetime to see a completed treaty or treaties, imagining a potent, cultural object with the clout to influence the lives of Aboriginal Victorians for generations. “We should try and get what we can for community - if the appetite is there we should jump at it. The community are my source of strength, they’ve got the power.” Miki Perkins is Social Affairs Editor. Adam Carey is State Political Correspondent.