Unpacking Victoria’s Statewide Treaty Bill

Max Thomas | November 4, 2025

A successful referendum in 1967 amended the Constitution to allow the Australian Parliament to make laws for Aboriginal and Torres Strait Islander peoples. In 2023, the Commonwealth Government referendum to establish a Voice to Parliament was convincingly defeated in all states, including Victoria.

The Prime Minister has confirmed that his government will not legislate for a Voice as an alternative to the constitutional model proposed by the referendum. The Calma-Langton Report was intended as a template for implementing the Voice to Parliament.  It is a vague 300+ page document consisting of unintelligible bureaucratic rigmarole.

Despite the defeat of the referendum, the State Parliament of Victoria has passed the government’s Statewide Treaty Bill 2025. In doing so, the state government has created a costly legal and bureaucratic tangle that is unlikely to improve the lives of Indigenous people.

The National Indigenous Australians Agency (NIAA) has been operating since 2019 with a budget of $2.6 billion. More than 20% of NIAA staff, including the CEO, are Indigenous. The vision and purpose of the Agency are virtually the same as those of the Victorian Treaty. What will the Treaty achieve that NIAA could not in terms of Closing the Gap and Self Determination?

The First Peoples’ Assembly was set up in 2019 as part of Victoria’s Treaty process. It has a Self Determination Fund which has been used to establish numerous corporate bodies (PCB’s) and to support the negotiation of local Traditional Owner Treaties. Altogether, it resembles the Calma-Langton model, described above, which was rejected by the Voice referendum.

These Prescribed Corporate Bodies (PBC) are registered under the Commonwealth Native Title Act. An example of the Treaty in action is the allocation of billions of litres of water to PCB’s under ‘Traditional Owner Settlement Agreements‘.

Water is a form of currency and the quantity of water involved in the agreements is worth $millions per annum. Former Victorian Water Minister Lisa Neville said she wanted to see the water sector and traditional owners working closely together, with water entitlements supporting business, cultural, recreational and environmental outcomes for Aboriginal communities.

 Australia’s legal system treats water as a commodity separate to land. The High Court ruled in 2002 that state water laws extinguish native title rights to water. That potentially brings Victorian water laws into conflict with the Commonwealth. However, in Victoria, the Traditional Owner Settlement Act recognizes the rights of Traditional Owners to access and use water resources, subject to “sustainable” management practices.

For example, water might be diverted from a stream to flood a wetland to support traditional fishing or hunting as well as for other environmental purposes.

Wetlands recharge aquifers, and groundwater is a valuable economic resource, especially in irrigated agriculture. Wetlands are also used as a source of green feed for cattle which are a source of income for some Indigenous communities.

In reality, traditional and non-traditional water uses may be inseparable. It is interesting to speculate on how the High Court would decide a dispute over the sale or use of water, directly or indirectly, for non-traditional purposes by PCB’s on land subject to Native Title.

The Australian Constitution provides that when conflict exists between state and commonwealth laws, the latter prevails.

If the referendum had succeeded in amending the Constitution of Australia, State legislation designed to prevent the establishment of a Voice to Parliament would have been invalidated by the High Court. In other words, the will of the people would prevail.

Imagine the outrage if the Voice Referendum had passed and a State had attempted to frustrate the Voice by refusing access to existing Indigenous facilities and services, thus ignoring the will of the people and causing duplication and chaos.