2005 International Conference on Engaging Communities
Engaging Australian Indigenous Peoples: New arrangements for the administration of Indigenous affairs, economic and social development, and native title in Australia
UN Workshop on Engaging the Marginalised: Partnerships between Indigenous Peoples, government and civil society
Background Paper prepared by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights & Equal Opportunity Commission, Australia
Brisbane, Australia 15 August 2005
Introduction
This background paper is a compilation of work conducted by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, within the Human Rights and Equal Opportunity Commission1 (HREOC), which examines engagement between Indigenous peoples and governments in the areas of social policy development and native title.
The first extract, Summary Sheet Two: Implementing new arrangements for the administration of Indigenous affairs2, summarises the federal government's reforms to Indigenous affairs, the possible challenges to these reforms, and potential impacts on Indigenous people. These policy reforms set the context for engagement between the Australian government and Indigenous peoples.
The extract explores the cornerstone of the reforms to Indigenous affairs, which is, the greater focus on direct engagement between government and Indigenous communities. This is evidenced by: an absence of a national Indigenous representative body to inform government policy; the provision of Indigenous-specific services by mainstream government departments; and increased emphasis on agreement-making between government and Indigenous communities, organisations and individuals.
The second extract, Principles for Economic and Social Development3, summarises the consultations held by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner on Indigenous engagement with government in the context of native title and economic and social development. This extract provides an overview of the principles that governments should adhere to when making agreement's about Indigenous land use with traditional ownerfile:///X:/HreocWeb/social_justice/conference/engaging_communities/s.
The third extract, Development and Indigenous Land: A Human Rights Approach4, details the various human rights principles that developers, including mining companies, must adhere to when undertaking projects and developments on Indigenous land. While not specifically directed towards government, these principles incorporate basic human rights principles which can act as a guide for governments' and the private sector's engagement with Indigenous peoples.
Extract 1 – Summary Sheet Two: Implementing new arrangements for the administration of Indigenous affairs
In early 2004, the federal Government announced that it was introducing significant changes to the way that it delivers services to Indigenous communities and engages with Indigenous peoples. The changes have become known as 'the new arrangements for the administration of Indigenous affairs'.
What are the new arrangements for the administration of Indigenous affairs?
On 15 April 2004, the Prime Minister and the Minister for Indigenous Affairs announced that the government intended to abolish ATSIC5 and ATSIS6 and embark upon new arrangements for the administration of Indigenous affairs at the federal level. Details about the new arrangements have progressively been released in the months since this announcement.
There are three main, inter-related developments that have influenced the introduction of the new arrangements:
- the focus and scrutiny on the role and performance of ATSIC;
- progress in implementing the commitments of COAG7, particularly through the whole-of-government community trials (COAG trials); and
- an emphasis on change in the Australian Public Service to reinvigorate public administration and improve service delivery.
The new arrangements involve:
- the transfer of Indigenous specific programs to mainstream government departments and agencies;
- improved accountability for mainstream programs and services;
- the establishment of the Ministerial Taskforce on Indigenous Affairs;
- the establishment of the Secretaries Group on Indigenous Affairs;
- the establishment of a National Indigenous Council8;
- the creation of an Office of Indigenous Policy Coordination9;
- movement to a single budget submission for Indigenous affairs;
- the creation of regional Indigenous Coordination Centres10;
- the negotiation of agreements with Indigenous peoples at the regional and community level11;
- support for regional Indigenous representative structures; and
- a focus on implementing the commitments of the Council of Australian Governments.
The new arrangements are underpinned by five principles:
- Collaboration – all Australian Government agencies are required to work together in a coordinated way.
- Regional needs – the new mainstreaming will focus on regional needs.
- Flexibility – program guidelines will no longer be treated as rigid rules, inhibiting innovation, although flexibility will not be introduced at the expense of due process.
- Accountability – improved accountability, performance monitoring and reporting will be built into the new arrangements.
- Leadership – strong leadership is required to make the new arrangements work, both within government and from the networks of representative Indigenous organisations, at regional and local levels.
The implications of the new arrangements
The new arrangements announced by the government are complicated and wide-ranging. Since commencing my term as Social Justice Commissioner, I have indicated to governments and to Indigenous peoples that I will closely monitor the new arrangements on an ongoing basis, given the scope of change being introduced and the potentially wide ramifications for Indigenous peoples.
The theory underpinning the new arrangements
- The new arrangements contain a number of significant innovations for the delivery of federal programs and services. These include compelling engagement on Indigenous issues at the most senior levels of the government and public service; and raising the potential for improving government coordination, addressing the longstanding problem of under-performance and inaccessibility of mainstream programs for Indigenous peoples, and providing workable solutions to the problem of delivering services in a federal system.
- The new arrangements involve the making of significant commitments by the government to address Indigenous disadvantage. Time will tell if these words can be turned into action and results.
- The new arrangements are based on lessons learned from the COAG trials. However, these lessons are preliminary and require ongoing consideration. There remains a need for thorough and ongoing evaluation of the outcomes of the COAG trials.
- The new arrangements have been introduced solely through administrative mechanisms. This makes the new arrangements less transparent and more difficult to scrutinise. It has the potential to make it more difficult for the government to be held accountable for its performance over time if monitoring and evaluation processes are not sufficiently rigorous.
- The new arrangements do not depend on the abolition of ATSIC. The continuation of ATSIC's Regional Councils for at least a further 12 months than is currently envisaged may facilitate better frameworks for the implementation of the new arrangements.
Practical matters relating to the introduction of the new arrangements
- There is a lack of information about the new arrangements in Indigenous communities. This contributes to an ongoing sense of uncertainty and upheaval. There remains a need for a comprehensive information campaign about the new arrangements directed towards Indigenous people and communities.
- The transition to the new arrangements may have created financial difficulties for some communities.
- The new arrangements have consequences for existing planning processes which involve Indigenous representation through ATSIC, particularly in relation to Indigenous Housing Agreements and the planning forums established under the Framework Agreements for Aboriginal and Torres Strait Islander Health in each State and Territory.
Challenges in implementing the new arrangements
- Ensuring the effective participation of Indigenous peoples in decision making – this needs to take place at the national level, in order to influence the setting of priorities, as well as at the state, regional and local levels. Some options for creating these linkages between these levels are discussed in the report.
- Effective participation of Torres Strait Islanders on the mainland – it remains important that a voice representing the needs of Torres Strait Islanders to government is maintained.
- Engaging with Indigenous people and communities at the regional level – there are concerns that the government has not engaged fully with ATSIC Regional Councils in introducing the new arrangements and that alternative regional structures have not been advanced sufficiently to date.
- Engaging with Indigenous people and communities at the local level - the new arrangements are based on direct engagement and negotiation with Indigenous people and communities at the local level through Shared Responsibility Agreements which poses a range of challenges.
- 'Mutual obligation' as the basis of Shared Responsibility Agreements – while the focus of SRAs is on the responsibilities of Indigenous people in meeting mutual obligation principles, it will not be until mid-2005 at the earliest that there will be sufficient information to express a view about the actual approach being adopted by the Government. In light of the potentially serious consequences of this issue, my office will scrutinise SRAs over the coming 18 months for compliance with human rights standards.
- Ensuring appropriate recruitment and retention practices are maintained within the Australian Public Service.
- Coordinating programs across government departments and with the States and Territories – the coordination of mainstream and Indigenous specific programs in regional Indigenous Coordination Centres is a significant opportunity to improve the accessibility of mainstream programs for Indigenous peoples and communities so as to better meet their needs, however it also poses many challenges.
- Ensuring adequate monitoring and evaluation processes - while a coordinated whole-of-government approach is intended to simplify and streamline service delivery, it also has the potential to blur the responsibilities and performance of individual agencies and programs. As such, monitoring and evaluation processes for the new arrangements need to be put in place.
Conclusions
The new arrangements have the potential to impact significantly on the enjoyment of Indigenous Peoples' rights. They can either lead to improved performance and outcomes by the government and improved engagement with Indigenous peoples, or undermine the enjoyment of human rights by Indigenous peoples.
These rights will be undermined if Indigenous peoples are not able to effectively participate in the new arrangements by having a voice at the national level, the ability to influence developments on a regional basis through the operation of culturally legitimate representative structures, or if local level engagement is selective or based on coercive measures.
Rights will also be undermined if the new arrangements are not transparent in their operation and rigorously monitored. Also if there is a systemic problem with government not placing enough emphasis on the skills necessary to engage effectively with Indigenous communities (through the establishment of appropriate recruitment, retention and training approaches across the public service and provision of adequate support for Indigenous people and communities to have in place appropriate governance arrangements).
Throughout the Social Justice Report 2004, I have identified a range of issues that my office will continue to monitor over the next 18 months to ensure that a breach of Indigenous peoples' human rights does not result in the long term. The report also outlines some preliminary recommendations about the new arrangements.
My intention is to closely focus on the implementation of these new arrangements to ensure that essential components of the new arrangements are not forgotten or cast aside due to the complexity and scope of the changes being implemented.
Download Summary Sheet Two from:
Download Social Justice Report 2004 from:
Extract 2 - Principles for Economic and Social Development
The Native Title Report 2004 outlines a number of principles that can assist in directing the native title system towards the economic and social development goals of traditional owner groups, as follows:
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Respond to the traditional owner group's goals for economic and social development
Native title12 agreement making provides an opportunity for the traditional owner group to bring its agenda for economic and social development to the negotiation table. Consultations identified the following issues in relation to the first principle as it applies to the native title system:
- Government and companies must provide adequate time for traditional owners to establish decision making processes and identify their goals – In addition to government or a company's policy or commercial goals, the economic and social goals of the native title party should be taken into account. This requires that adequate time is given to establish stable decision making processes so that the goals of traditional owners can be properly identified.
- Indigenous rights in land and resources must be developed to provide greater opportunity for Indigenous economic and social development – The property rights of traditional owners, as for other Australian citizens, should assist their economic development where this is desired.
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Provide for the group's capacity to set, implement and achieve the group's development goals
Capacity development requires not that sustainable development be 'delivered' to traditional owners but that those who seek to achieve development goals within their communities are actively involved in setting the agenda and determining outcomes. Important factors to consider here include:
- Identifying the group's goals – More support and research is needed to assist traditional owners develop techniques to identify their goals. It is also important that traditional owners can identify their goals prior to, or in the early stages of, negotiations.
- Capacity development – The process of negotiations and agreements should provide for the capacity development and empowerment of traditional owners.
- Governance – Strong governance structures are essential to achieve economic and social development. Developing good governance structures takes time.
- Implementation, monitoring and evaluation – Traditional owners need to develop, evaluate and monitor their own skills, knowledge and capacities.
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Utilise the existing assets and capacity of the group
Development driven by the group emphasises building the skills of people within the group rather than using external skills to identify and drive the achievement of objectives. It also seeks to tailor development to the group's skills and values. This can be achieved by:
- Utilising and building on the existing capacities of the group
- Utilising and building on the assets of the group
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Build relationships between stakeholders
The most important relationship for Indigenous people pursuing development goals is with government. A partnership with government is essential. However, it is critical that the group retains control of the development process, with the government adopting a facilitative role to help the group achieve its development goals. This role should be carried out through processes and institutions that reflect the group's cultural values and are respected by the community.
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Integrate the activities of native title institutions to achieve the development goals of the group
If progress is to be made towards the economic development goals of traditional owner groups, the various parties in the native title system cannot work at cross-purposes.
The above principles recognise the distinctiveness of traditional owner identity, but also show how native title can be used to contribute to the economic and social development of traditional owner groups. They are based on strategies for sustainable development and capacity development drawn from Australia and overseas.
Download Native Title Report 2004 from:
Extract 3 - Development and Indigenous Land: A Human Rights Approach
The development of resources on Indigenous land raises issues that concern the human rights of Indigenous peoples. The principles outlined in this document are directed at addressing these issues.
These Principles were developed by a forum of Indigenous people from Australia's major mineral resource regions, held in Alice Springs in May 2002. Participants had a depth of experience and expertise in areas across the country, but the process did not make any claim to represent a national Indigenous view. The forum was co-hosted by the Aboriginal and Torres Strait Islander Social Justice Commissioner (Dr Bill Jonas) and Professor Ciaran O'Faircheallaigh on behalf of Griffith University and facilitated by Indigenous lawyer, Robynne Quiggin. The aim of the forum was to initiate a process by which Indigenous people may develop principles, based on human rights, addressing resource development on Indigenous land.
The Principles are informed by the forum participants' experience of the impact of mining on their communities. The process was not intended to produce rules to be applied uniformly by all Indigenous communities. Rather the Principles, based on the human rights of equality, protection of culture, and self-determination, provide a foundation on which Indigenous people may build their own positions regarding the relationship between their communities and Developers. The participants welcome the extension and adaptation of these Principles to other forms of development and impact on Country.
Principles
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Recognition
The Developer must recognise:
- traditional owners' and custodians' cultural practices, traditional and ongoing spiritual and religious connection to Country;
- traditional owners and custodians as owners of Country, regardless of Western law;
- traditional owners' and custodians' values in relation to their culture;
- the cultural responsibilities of traditional owners and custodians in employment conditions;
- the impairment and disruption of enjoyment, use and access to Country due to impact of Development, and provide appropriate compensation in all cases of such impairment;
- the right of traditional owners and custodians to work with consultants of their choice;
- that traditional owners and custodians are responsible for Indigenous heritage on Country and are owners of their cultural and intellectual property;
- the right of traditional owners and custodians to enjoy economic benefit arising from Development on Country;
- that traditional owners and custodians are the ultimate decision makers on Country and therefore must be involved in all decisions made; and
- the cultural diversity of Indigenous people throughout Australia.
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Respect
The Developer must respect:
- traditional owners' and custodians' decisions, decision-making, and dispute resolution processes;
- traditional owners' and custodians' time frames to ensure inclusiveness for decisions that are subject to cultural ceremonies and law, climatic and geographical conditions;
- the collective and communal nature of Indigenous rights;
- the status of traditional owners and custodians - the Developer must provide its representatives with the authority to negotiate and make decisions;
- the traditional owners and custodians by providing notice of future projects as early as possible in the life of that project, and well in advance of any relevant statutory periods;
- all relevant persons and groups in a community (including traditional elders, custodians of sites, traditional owners and custodians of stories/songs, men's and women's businesses) in traditional decision making about Indigenous heritage and what happens on Country; and
- the information and knowledge of traditional owners and custodians, and the Developer must apply mutually agreed principles in protecting that information and knowledge.
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Prior Informed Consent
Traditional owners and custodians have a right to make informed decisions, which may include decisions that Development will not proceed. The Developer must:
- ensure that traditional owners and custodians have all the information in relation to proposed projects in a timely and comprehensive manner and in an understandable form;
- fully disclose to traditional owners and custodians, information on the Developer's projects, practices and policies (including Indigenous policies); and
- provide resources and funding for traditional owners and custodians to undertake impact assessment as an integral part of project approval processes and of project operations.
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Internal Decision Making Processes
The Developer must
- respect traditional owners' and custodians' decisions and decision making processes in relation to representation; and
- refrain from participating in traditional owners' and custodians' decision making structures, unless by traditional owners' and custodians' invitation and without inducement.
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Economic Development and Benefits
Traditional owners and custodians have the right to guaranteed effective participation in all economic development and benefits, which are sustainable and durable benefits, including:
- permanent and meaningful employment;
- training, education, and capacity building;
- business opportunities;
- royalties;
- equity in the operation; and
- generation of spin-off (secondary) economic opportunities;
- with the Developer and any of its contractors or joint venturers.
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Independent Monitoring and Performance Benchmarks
The Developer must:
- negotiate outcome-focused benchmarks with full participation of traditional owners and custodians;
- agree to independent monitoring of performance based on the agreed benchmarks;
- ensure timely reviews of agreements and other relevant development activities; and
- negotiate, with the full participation of traditional owners and custodians, a code of conduct to apply to all employees and contractors, and covering areas such as cross cultural relations, responsible use of alcohol, and fraternising with local people - the code must be supplemented by staff training including localised delivery of cross-cultural training.
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Indigenous Involvement in Environmental Management
The Developer must:
- comply with environmental laws and industry codes of practice;
- ensure that traditional owners and custodians are able to practice their traditional laws and customs and exercise the full range of connection to Country
- integrate Indigenous knowledge and land management practices into rehabilitation plans and works;
- provide financial guarantees including, secured funds to manage closure issues, in the immediate and long term; and
- set environmental management standards with the full participation and agreement of traditional owners and custodians.
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Cultural Heritage Protection
The Developer must:
- establish appropriate cultural heritage protection to the standards required by traditional owners and custodians;
- provide resources and funding on a basis agreed with traditional owners and custodian to undertake heritage assessments and develop management plans on the basis of the agreed standards; and
- provide resources and funding for cultural awareness training by traditional owners and custodians at all levels of the Developer's organisation.
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Resourcing
The Developer must provide resources and funding to:
- allow fair and equitable negotiations; and
- ensure effective implementation of all stages of agreements with traditional owners and custodians.
Download full version of Development and Indigenous Land: A Human Rights Approach from:
Endnotes
- HREOC is Australia's national human rights institution. HREOC is empowered by the Human Rights and Equal Opportunity Commission Act 1986. Section 11 of this Act prescribes HREOC's functions.
- For the complete version see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2004, Human Rights and Equal Opportunity Commission, Sydney, 2004, Chapter 3.
- For the complete version see Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2004, Human Rights and Equal Opportunity Commission, Sydney, 2004, Chapter 2.
- For the complete version see Development and Indigenous Land: A Human Rights Approach, Human Rights and Equal Opportunity Commission and Griffith University, http://www.humanrights.gov.au/social_justice/corporateresponsibility/index.html
- ATSIC is the Aboriginal and Torres Strait Islander Commission.
- ATSIS is Aboriginal and Torres Strait Islander Services. ATSIS was created on 1 July 2003 to be the administrative arm of ATSIC.
- COAG is the Council of Australian Governments. COAG is the peak intergovernmental forum in Australia, comprising the Prime Minister, State Premiers, Territory Chief Ministers and the President of the Australian Local Government Association.
- The National Indigenous Council is a government appointed, non-statutory body comprised of 14 Indigenous Advisers.
- The Office of Indigenous Policy Coordination is located with the federal Department of Immigration and Multicultural and Indigenous Affairs. It will provide policy advice to the Minister, coordinate Indigenous policy development and service delivery across the Government, oversee relations with state and territory governments on Indigenous issues, and monitor the performance of government programmes and services for Indigenous people.
- Indigenous Coordination Centres coordinate whole-of-Australian-government activity on a community and regional level. The Office of Indigenous Policy Coordination oversees Indigenous Coordination Centres.
- Agreements made at the regional level are called Regional Partnership Agreements. Agreements made at the local level are Shared Responsibility Agreements.
- Native title is the legal mechanism which recognises Aboriginal and Torres Strait Islander peoples' rights and interests in land in Australia. The Native Title Act 1993 is the main piece of legislation that governs native title in Australia.
