Lost opportunities

Prospects for a treaty

GRIFFITH REVIEW IS not, according to its ‘Writers’ Guidelines’, an ‘academic journal’. This leads me to pause and consider how I can establish what I want to be the starting point for this essay, which is that Australia cannot ‘make peace and firmer ground for laws, policies and outcomes that improve Indigenous and non-Indigenous life’ unless it accepts the need for Indigenous peoples to exercise a high degree of autonomy and govern their own affairs.

As an academic, my normal approach would be to provide numerous citations to the growing body of long-term economic research from the United States, Canada and Australia that provides definitive evidence for the link between political autonomy and Indigenous economic development. I would cite an equally impressive body of evidence from these countries and from New Zealand which demonstrates that health, education, housing and other public services are much more effective in ‘improving Indigenous life’ when they are designed and delivered by Indigenous people themselves. Finally, to complete the trifecta, I would refer to the large body of evidence which shows that unilateral policy interventions by non-Indigenous governments rarely improve Indigenous lives, and that where they do, the impact is short-term, and is followed by debilitating effects on Indigenous capacity and confidence.

These findings should not come as a surprise. In relation to public services, Indigenous and non-Indigenous cultures, values, priorities and ‘ways of working’ differ markedly, and non-Indigenous politicians and bureaucrats in Australia have limited understanding of the Indigenous sphere. This latter point is documented in relation to the Australian Public Service, for example, by the Aboriginal scholar Steven Larkin in his doctoral thesis, Race Matters: Indigenous Employment in the Australian Public Service. Drawing on interviews with non-Indigenous senior executive service officers working in Indigenous policy, Larkin shows that their cultural competence is seriously deficient and, underlying this, that they regard white knowledge, organisation and modes of operating as inherently superior to Indigenous ones. This is hardly a promising basis for the design and delivery of effective Indigenous policy.

The link between Indigenous autonomy and economic achievement is also unsurprising. Economic success requires the ability to grasp economic opportunity when it arises, and to take the risks that are inherent in all economic ventures capable of generating a substantial return. Both require autonomy from stultifying bureaucracies of the type that have historically governed Indigenous affairs in settler societies. For Indigenous peoples, economic success also requires a capacity to reconcile the demands of the market with those of culture, requiring an intimate understanding of the latter and the constraints and opportunities it creates. Finally, the existence of economic opportunity gives rise to conflicts between Indigenous and non-Indigenous interests. If Indigenous peoples cannot exercise the autonomy to pursue their own interests, non-Indigenous interests will inevitably prevail. All of these circumstances help to explain why Native American tribes that remained outside the jurisdiction of the Federal Bureau of Indian Affairs after 1934 enjoyed, over a period of seventy-five years, growth in per capita incomes half as great again as tribes that remained under the Federal Bureau’s influence.

The importance of autonomy – and demands to give it a central role in government policy – has consistently been articulated by Indigenous Australians since, at least, the 1920s. Of the hundreds of references that could be cited in this regard, let me mention just two, nearly a hundred years apart. In 1925 when the Australian Aboriginal Progressive Association was launched in New South Wales, its demands included: ‘Aborigines should control any administrative body affecting their lives.’ In May 2017, when Indigenous delegates gathered at Uluru to discuss constitutional change, their Statement from the Heart said: ‘When we have power over our destiny our children will flourish.’

The combined force of empirical evidence on economic and social outcomes, policy logic and accumulated Indigenous calls for autonomy expressed over ninety years has not proved sufficient to persuade Australian governments to recognise the importance of supporting Indigenous autonomy. In fact, over the last two decades, state, territory and federal governments of both political hues have enacted policies and institutional changes that have undermined Indigenous autonomy. At the same time, they have failed to capitalise on the potential for establishing systems of self-government presented by one of the most important opportunities of the last century: the High Court’s 1992 recognition of native title.

The refusal of Australian governments to recognise the critical importance of Indigenous autonomy and to support its development constitutes one of the biggest barriers to ‘making peace’ and to achieving ‘laws, policies and outcomes’ that improve Indigenous life in Australia. For reasons discussed in concluding this essay, unless that refusal can be reversed it is unlikely that a treaty can be negotiated with Indigenous Australians – or, if it were, that it could improve their lives.


SINCE THE ABOLITION of the Aboriginal and Torres Strait Islander Commission in 2005, there have been no concerted initiatives to move towards recognition of the value of autonomy or self-government in dealing with Indigenous issues – indeed, the trend has been in the opposite direction. There are, for example, conflicting views, including among Aboriginal Australians, on the need for the so-called Northern Territory Intervention by the Howard and then Rudd and Gillard governments. There is, however, near unanimous agreement, including among its supporters, that it was designed and carried out with virtually no consultation with Aboriginal people in the Northern Territory, in a way that undermined their autonomy and adversely impacted on its effectiveness. This was despite the fact that the 2007 Little Children are Sacred report, which provided the trigger for the Intervention, repeatedly stressed, including in its first recommendation, that it was ‘critical that both [territory and federal] governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities’. The commissioners cited a former Liberal federal Minister for Aboriginal Affairs, Fred Chaney, in support of
their call:

…I think governments persist in thinking you can direct from Canberra…that you can have programs that run out into communities that aren’t owned by those communities, that aren’t locally controlled and managed, and I think surely that is a thing we should know doesn’t work. So I am very much in favour of a model which…builds local control in communities…

But the advice of former ministers of Aboriginal affairs, even from the same side of politics, apparently carries little weight, because the key recommendation about working with Aboriginal communities was ignored.

Another example is provided by the creation of so-called ‘super shires’ by the Northern Territory Labor Government in 2008. This involved a top-down decision to disestablish fifty-seven small, remote elected councils, the vast majority of them Aboriginal community councils, and incorporate them into nine shires, each based in a large town. Significantly, the only four councils that were not disestablished had a majority of non-Indigenous residents. This process had a destructive effect on the autonomy of many Aboriginal communities, on the quality of services they receive, and on their interest in being involved in governance. According to long-term analyst of Northern Territory politics Dr Will Sanders, the councils ‘were Aboriginal people’s own creations over the previous thirty years…Labor, in a grand visionary plan, took these community councils away from Aboriginal people’. The example of the super shires illustrates that the denial of Aboriginal autonomy is not restricted to the federal level or to the conservative side of politics. The latter point is further reinforced by the fact that the NT Intervention was, with only minor adjustments, continued by the Rudd and Gillard governments.

A further and very recent example involves the so-called Indigenous Advancement Strategy (IAS) initiated by the Abbott government after its election in 2013. This strategy constituted one of the most radical overhauls of federal Indigenous affairs policy and programs in recent decades. It involved rationalising all programs, grants and activities for Indigenous Australians under the strategy, to be administered by the Department of the Prime Minister and Cabinet (PM&C). It cut $534.4 million from annual federal funding to Indigenous programs, which led to the effective abandonment of the Closing the Gap strategy, according to its steering committee, and made major changes to the way in which the Commonwealth procures services for Indigenous peoples. There was a shift to a single competitive tendering process that, at least initially, attached no value to involving Indigenous organisations in designing and delivering services, and which led to a large increase in the involvement of non-Indigenous non-government organisations. A new structure was created within PM&C, involving a national director based in Canberra; regional managers based in twelve regions across Australia; and thirty-seven offices in capital cities, regional and remote locations. PM&C would be responsible for administering all grants and for the oversight of programs. In effect, the IAS constituted a substantial centralisation of control over the administration of Indigenous affairs policy.

These highly significant changes were undertaken with no consultation with Indigenous people or organisations. They resulted in major gaps and shortcomings in delivery of services and infrastructure and, critically, undermined Indigenous autonomy and organisational capacity. These points are documented extensively in a Senate Finance and Public Administration Committee report into the introduction of the IAS, published in 2016. And although government members of the committee argued in additional comments to the report that the government’s actions were driven by a desire to ensure that public funding ‘is serving ATSI communities best’, they did not resile from the committee’s substantive and critical findings.

The committee found ‘there had been a lack of consultation and engagement by government with Indigenous communities in the program design and implementation of the IAS’, and cited a submission from Mick Gooda, then the Human Rights Commission’s Aboriginal and Torres Strait Islander Social Justice Commissioner, that ‘it was a bureaucratic process of officers of the Department [of the Prime Minister and Cabinet] out there deciding what was need[ed] by communities, when in fact that is the opposite of what you should be doing’. Numerous submissions from Indigenous organisations attest to the lack of consultation. Another major concern was that a single, open, competitive process pitted small, community-controlled organisations against well-resourced and experienced applicants, including large not-for-profit associations and the university sector, an outcome that had seriously negative effects on Indigenous organisational capacity, service delivery and autonomy.

A further finding of the Senate committee was that confusion regarding the application process for grants, contradictory information provided by PM&C, and the limited experience of some PM&C staff in Indigenous affairs all resulted in delays in providing funding and in gaps in services, including legal services, to some communities. The result, according to the committee, was that ‘government was forced to introduce multiple rounds of emergency funding, to address gaps in frontline services’. This finding highlights the negative impact of unilateral government interventions undertaken in the absence of Indigenous participation.


RECOGNITION OF NATIVE TITLE provided a unique opportunity to advance Indigenous autonomy. In 1992, the High Court found that, at the time of first European settlement in 1788, the Australian continent belonged to its Indigenous habitants. Australia was not in an anarchic state in 1788. Indeed, as Bill Gammage has documented in great detail in his book The Biggest Estate on Earth (Allen & Unwin, 2012), Australia’s land and resources were closely and carefully managed. Relations within and between Aboriginal groups were similarly managed, to such an extent that over thousands of years there were, as far as can be established, no wars motivated by the drive to conquer other peoples’ lands. In other words, not only did Indigenous people own Australia, they governed Australia.

Native title is an inherent right that exists because of the situation that prevailed at the time of European settlement. It is not, as the High Court made clear, a right derived from Australian common law, but rather one recognised by Australian law. As Indigenous people were self-governing as well as in possession of Australia’s land and sea in 1788, it follows that native title must involve an inherent right to self-government as well as inherent rights to land. Acceptance of this point would have allowed Australian governments to enshrine recognition of Indigenous autonomy, including through negotiation of a nation-to-nation treaty or treaties.

In reality, what has occurred is that Australia’s courts and governments have treated native title as solely involving property rights, denying its ‘inherent right to self-government’ component. The Native Title Act defines native title as ‘the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters…’ [emphasis added]. It makes no reference to rights to self-government. Subsequent court decisions, including Yorta Yorta, have specifically rejected the possibility that native title could include a right of internal self-government.

Australia’s approach can be highlighted by contrasting it to Canada, whose legal system, like Australia’s, derives from English common law. Recognition of autonomy and right to self-government is at the centre of the way in which Canada’s federal and provincial governments deal with policy and service delivery. So land-claim settlements in Canada involve recognition of interests in land, water and resources, but they also involve recognition of a right to self-government, within the Canadian political system.

Typically, negotiations on land-claim settlements occur along two parallel tracks. One deals with identification of sub-surface and surface lands that will be owned by Aboriginal claimants. The other deals with devolution of responsibility for political and administrative functions (including land management) and public service delivery, and access to revenue streams to allow Aboriginal governments to deliver these. Self-government is not only a component of land-claim settlements; it is also negotiated separately by First Nations who occupy reserve land as a result of historical treaties, and in relation to particular areas of service delivery across multiple First Nations.

Self-government agreements confer extensive law-making and policy and administrative functions on Aboriginal governments. In a typical agreement, these include the power, in relation to the members of the First Nation, to enact laws in relation to: taxation; programs and services in relation to spiritual and cultural beliefs and to Aboriginal languages; the provision of health, education, housing and social and welfare services; the custody and care of children; marriage; education; inheritance and wills; determination of mental competency; law enforcement and corrections; and dispute resolution.

These powers are available under self-government agreements, but there is no compulsion on Aboriginal governments in Canada to draw all of them down or act within a specified time frame. This recognises the necessity for some governments to build their organisational capacity and to effectively exercise powers over time. It is also worth noting that if Aboriginal peoples take the option of negotiating their self-government arrangements in the form of a treaty, they then enjoy protection as ‘existing Aboriginal rights’ under Canada’s constitution, rights which cannot be unilaterally altered.

Negotiation of self-government does not mean either a withdrawal of Canada from its commitments to fund services for Aboriginal communities, nor relegate them to a lower level of service provision, as a number of Australian analysts fear has occurred or might occur in Australia. Self-government agreements explicitly require that First Nation citizens should have access to opportunities and essential public services comparable to those enjoyed by all Canadian citizens. Long-term funding arrangements (typically five-yearly, but in some cases longer) are negotiated with Canada and the relevant province or territory to support provision of services in the Aboriginal government’s areas of responsibility. In 2011–12, for example, the Government of Canada provided the Nunatsiavut Government in Labrador C$32.5 million to help fund program delivery to some of its approximately five thousand citizens. In comprehensive land-claim settlements, funding includes substantial capital grants to help establish the operations of the Aboriginal government. In the case of the Labrador Inuit, the capital grant amounted to C$190 million over fourteen years.

Professor Megan Davis has correctly pointed out that it is important to recognise the different common law histories of Australia and other settler countries in comparing their approaches to recognition of Indigenous rights, including the inherent right to self-government. It is certainly the case that the approach to Aboriginal self-government taken in Canada reflects, in part, its colonial history, and in particular the conflict between the British and French colonists and all that flows from it in terms of the history of settler–Aboriginal relations, including the signing of treaties.

But it is important to stress that there was no inevitability that Canada would afford a central role to autonomy and self-government. The underlying foundation for current practice is that federal policy – and I stress policy – recognises an inherent right to Aboriginal government based on the fact that at the time of settlement, Aboriginal peoples were self-governing. This policy came about after Canada, initially reluctant to embrace self-government, was persuaded, in part, by political pressure from First Nations to accept that self-government provided the only widely supported alternative to a flawed and unsuccessful system of Aboriginal administration.

By failing to use native title as a basis for creating Indigenous governments, Australia has lost an opportunity to create Indigenous governments that could do much to improve lives and to redefine relations between Indigenous and non-Indigenous Australians. The significance of this lost opportunity is apparent given that, in October 2017, native title rights had been found to exist in 32 per cent of Australia’s land area as a result of 338 positive determinations of native title. Determinations still remained to be made in relation to a further 249 claims.

This failure to recognise an inherent right to self-government as a component of native title has other negative and more specific consequences. One is that legal recognition of even the strongest form of title under the Native Title Act 1993, ‘exclusive possession’, provides native title holders with very little control over what happens on their country. The standard form of words accompanying such legal recognition – that native title holders are entitled ‘as against the whole world to possession, occupation, use and enjoyment’ of their native title land – rings hollow. Court decisions have, for example, made it clear that native title holders cannot act to prevent people from entering their land, even in situations where Indigenous owners fear that trespassers may be about to cause damage to sites of cultural significance. In one such case in the Kimberley, a magistrate found native title holders who had attempted to physically remove a trespasser guilty of assault. One can imagine the outrage that would occur if a magistrate made a similar finding in relation to a non-Indigenous person seeking to prevent trespass on freehold land.

Native title holders, exclusive or otherwise, are also unable to prevent mineral exploitation on their lands. They have only a ‘right to negotiate’ with potential developers under the Native Title Act, which may lead to an agreement under which the native title holders consent to mining. If Indigenous landowners are opposed in principle to mining, or if the developer fails to offer them an agreement they find acceptable, the developer can apply to a government-appointed body, the National Native Title Tribunal, for the grant of a mining lease. In almost every case where this situation has arisen, the tribunal, which currently has no members who identify as Indigenous, has granted the mining lease. Native title holders are well aware of the tribunal’s record in this regard, and are therefore under great pressure to negotiate an agreement.

This pressure is increased by the fact that, if it is left to the tribunal to make a decision, under the Native Title Act it is not permitted to include any payment related to the value of mines or to profits they generate as a condition of a mining lease. In other words, a negotiated agreement can include a royalty-type payment, but if agreement is not reached, there can be no such payment. These arrangements create a bargaining context that greatly favours developers, who, unlike native title holders, are under no pressure to reach an agreement. They can simply apply to the tribunal for a lease, with confidence that it will be granted.

Indigenous negotiating positions are further weakened because native title holders must rely almost entirely on mining companies to fund their negotiation efforts, including the costs of bringing the native title group together and of gaining access to technical expertise. At crucial points in negotiations, companies may threaten to withdraw funding, placing further pressure on Indigenous negotiators to accept whatever deal is ‘on the table’.

These features of the native title system help explain why many agreements negotiated under the Native Title Act fail to deliver substantial economic benefits to the Indigenous signatories, and do little to increase cultural and environmental protection of sites and ancestral lands. The result is the loss of a valuable opportunity to improve the lives of Indigenous Australians whose lands are affected by mining.


FROM THE NON-INDIGENOUS side, current debate regarding a treaty between Australia and its First Peoples appears focused on the issue of recognition and what form this might take. What is abundantly evident from the discussion so far is that, regardless of how this issue might be resolved, any treaty can only make a significant difference to the lives of Indigenous Australians if it provides for the creation of political structures, and allocation of resources, that allow them to exercise a real measure of political autonomy. Reflecting this reality, Megan Davis notes in an article for The Monthly, ‘Seeking a settlement’, that Indigenous Australians ‘would trade all the genteel recognition in the world for the right to freely determine their political affairs and pursue their economic, social and cultural development – decentralised arrangements that put power back into the hands of communities’. In her view, if that right is denied to Indigenous people, they are very unlikely to enter a treaty.

Indigenous Australians are certainly not going to be able to negotiate a treaty that would substantially change their lives and constitute the basis of a lasting settlement unless the negotiation process is itself based on acceptance of Indigenous autonomy. This would require an approach opposite in many respects to the way in which native title is currently administered. It would demand an Indigenous institutional and representative framework independent of government, and a funding base immune from the influence of day-to-day politicking. In this latter regard, it is significant that one of the first steps in Canada’s modern treaty-making process involves the negotiation of an agreed, publicly funded budget covering the expected costs of the entire treaty process – funding that cannot be unilaterally amended by government.

Given the Prime Minister’s dismissal of the Uluru Statement’s request for a constitutional entitlement for Indigenous representatives to be consulted when parliament is considering legislation affecting Indigenous peoples, the prospects that Australian government negotiators might seriously consider a treaty process and treaty provisions offering a substantial degree of Indigenous autonomy do not appear bright. It makes one wonder if there is any hope of a settlement between Indigenous and non-Indigenous Australians that would create a basis for improving both sets of lives.

In my view, the strongest hope arises from the fact that Indigenous Australians are increasingly taking matters into their own hands, exercising autonomy and taking control of their own destiny. They do so in many spheres of life, a reality indicated, for example, in the recent Empowered Communities: Empowered Peoples design report, and in Mark Moran’s 2016 book Serious Whitefella Stuff (Melbourne University Press). Moran presents a number of case studies from different regions of Australia that document the practical exercise of autonomy in areas including housing, ceremonial activity, alcohol management and town planning. Indigenous people successfully exercise autonomy in most cases despite, rather than with the support of, official government policy.

Ultimately, it is when governments and the Australian public see the positive consequences of this exercise of autonomy that attitudes towards Indigenous policy will start to change. This highlights the importance of education, in the broad sense of raising public awareness of the realities of contemporary Indigenous Australia. When Johnathan Thurston was asked recently whether the date of Australia Day should be changed from 26 January, his response was not to express an opinion, but to stress the need to educate non-Indigenous Australians about why so many Aboriginal and Torres Strait Islanders object to the current date. In the same way, if our politicians are determined to ignore the need for Indigenous autonomy, it becomes essential to speak directly to Australians and persuade them of its critical importance in addressing disadvantage, and in making peace between Indigenous and non-Indigenous Australians.

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