National Mediation Conference 2019

Jalangurru lanygu balangarri. Yaningi warangira ngindaji yuwa muwayi ingirranggu, Nambiri, Ngunnawal yani U. Balangarri wadjirragali jarra ningi – gamali ngindaji yau muwayi nyirrami ngarri thangani. Yaningi miya ngindaji Muwayi ingga winyira ngirranggu thangani.  Yathawarra, wilalawarra jalangurru ngarri guda.

Good day everyone. I acknowledge the traditional owners, Nambiri and Ngunnawal peoples, of the land we meet on today, their elder’s past, present and emerging. I welcome my Indigenous brothers and sisters that have travelled from afar and across this country to be here.

The Act of traditional custodians in the ceremonial welcome demonstrates the first step in the mediation space. The cleansing, welcome, protection, care, and communication space.

Good morning, my name is June Oscar and I am the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Australian Human Rights Commission. Today I am going to share my understanding about the big picture of mediation and how it can be applied to all of life. Probably of more interest and relevance to those operating in the Indigenous space. I know there is a wealth of expertise in this room, so I am not going to tell you how to do your work!

Instead, I want us to think about how everything we do in life, which so often involves the skills of mediation, contributes to the type of person we are the relationships we want to have and the society we want to live in.

I always tell people that I am not a lawyer, or a bureaucrat, nor am I a ‘qualified’ mediator or resolver of disputes. What I am is a Bunuba woman – I know my lore, my obligations and cultural practices. I walk in two worlds of governance and decision-making, the Indigenous and the Western. This manoeuvring between worlds has given me, and many others who have journeyed this path a huge range of knowledge and expertise.

Good mediation is a big part of this successful manoeuvring. As Indigenous peoples we are constantly mediating. We mediate at the local and intimate level between family and cultural obligations, around the campfire, in our clans, in our workplaces, governing the business of our many decision-making entities – such as our Prescribed Body Corporates (PBCs), community-controlled organisations and the delivery of essential frontline services. And we mediate at the regional and national level when it comes to considering our place as Indigenous peoples within this nation and our relationship with each other and with the Australian Governments and the broader public.

Ultimately, in contemporary Australia, Indigenous peoples exist within a highly complex governance and decision-making arena living between our worlds, and western rules and regulations, law and policy!

When I took on the role of Social Justice Commissioner, I committed to raising our Indigenous voices, and this lived experience I am describing, from the ground to every space of decision-making. To do this effectively, to unite our lives and work on the ground with the making of policy and legislation, we need strong mechanisms of communication, dialogue and negotiation.

These mechanisms that are the substance of good processes are the stuff of life - it is a whole of life approach to mediation.

I believe that this whole of life mediation needs to be what forms and drives many of our Indigenous decision-making processes and relationship building with the Australian nation. This includes the governance of PBCs in a rapidly emerging era of post-determination; nation-wide co-design processes to Close the Gap on Indigenous health inequality; truth-telling and reconciliation; agreement and treaty-making; and the need to enshrine our voices within the Australian Constitution so we have equal weight and consequence alongside all others.

As Indigenous peoples we need to be at the decision-making table to design these processes. And we need excellent Indigenous and non-Indigenous facilitators – mediators – to deliver and drive these processes.

To do this work successfully we need to develop and train people in sensitive and considered forms of communication, deep listening and accurate observation.

These skills and practices grow from foundational principles that are inherent to Indigenous society. These principles being:

• Inclusivity and the embracing of others and diverse knowledges
• Reciprocity 
• Connectedness and unity
• Communal and familial care
• Collective obligation and responsibility
• Shared leadership and decision-making

These are the foundational principles that brought into being our interconnected and cohesive Indigenous societies. Our society is held together by a complex infrastructure informed by these principles. Our lore, our kinship systems, our song lines and storytelling, gatherings and ceremony have given us social customs, obligations and protocols which govern the way we exist and interact. They keep us connected by determining our roles and responsibilities – what knowledge we learn, protect and share, how we care, heal and teach, and who we can and cannot communicate with, amongst many other things. It is through this intimate and expansive web of connection that we transfer lessons to sustain our societal health and wellbeing and maintain our surrounding ecology across the generations. 

In this system everyone and everything is accounted for – every plant, animal and person. No one is left out. And when our environment changes and we encounter new people and things, we embrace, and it becomes part of this web of being.

This is the whole of life approach to mediation. It is mediation to live by and for, keeping us connected and actively preventing conflict and disputes. It manages the great breadth and depth of our knowledge and diversity while helping us to learn and grow from each other’s skills and expertise.

And when conflict has been extreme, we have drawn on these skills to survive, to be resilient and to recover. Where the colonial onslaught threatened to erase our societal structures, our people have held onto our inherent values, and revitalised our foundational principles to construct decision-making spaces in dynamic contemporary ways.

These spaces are unlike western forms of governance, which is structured around individualism, hierarchy and competition, and prone to stress, and anxiety, tensions and conflict.

In today’s world to function – to mediate – in a way that is founded in Indigenous principles is critical. Clearly, the better we communicate and negotiate, the less conflict and crisis prone we are, the better our decisions and our outcomes.

I do want to impress on you all that I believe the principles I am speaking of are at the heart of all our humanity. But they can be better realised and enhanced by understanding Indigenous ways of being and governing society. When we develop our work based on these Indigenous foundational principles, we can form more compassionate, and passionate, caring and productive work environments, healthy relationships and effective structures for decision-making.   

Of course, I am not the first to encourage that we should work in this way. These principles that I am talking about are set forth in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Declaration is the most comprehensive instrument outlining who we are as Indigenous peoples across this globe and the rights we have that need to be upheld and realised. The Declaration is endorsed by this nation, but not incorporated into our domestic law and policy frameworks.

Because of this as a nation we have not devoted the time and resources required to understanding and implementing the Declaration in relation to our Aboriginal and Torres Strait Islander social structures, interests and aspirations in Australia.  

The Indigenous societal principles and practices I’ve described are not easily incorporated into Western societal structures and often, are counter to Western values of governance, decision-making and authority. This is one reason for why The Declaration has not been implemented.

There are many steps needed, and a long way to go to realising the Declaration in full. I do know that the more purposeful and committed we are to developing practices based on the principles I have spoken of, particularly in the space of mediation and dispute resolution, the closer we come to realising the rights contained within the Declaration.

The Articles which speak directly to what we are discussing at this conference are our foundational rights of self-determination, and participation in all decisions that affect our lives.

In exercising these foundational rights, the Declaration outlines that we have a right to pursue our economic, social and cultural development and decision-making through our own forms of governance, distinct institutions and chosen representatives.

And within and outside of our own institutions, consultation and decision-making processes must obtain our free, prior and informed consent before legislation and policy changes are implemented that affect our lives.

And, it is also our foundational right that we can do all of this, and express our distinct Indigenous identities, free from any kind of discrimination or prejudice.  

At this moment in time for our rights to be realised we have to do the work to make our rights real, to make them felt. There is no better place to begin in considering what that work looks like than in rooms like this. 

The most essential skill to use in doing this work, familiar to many mediators, is that of deep listening. My mother taught me this in my own cultural role when I had to mediate a family dispute. I had to stop and sit quiet, not speaking, just listening and observing over many days and nights. When I was ready to talk it was only in response to what I had heard. This deep listening stops us from imposing our own ideas and directing the outcome that we want. It stops us from making top down decisions. Instead, mediation based in deep listening brings clarity to the thoughts and feelings experienced by others, so the outcomes that emerge are ones that people truly want – those that come from the ground up.

As I said I want to elevate our voices from the ground to form better policy and legislation, and in the process have our rights realised. That is why I am committed to forms of communication like deep listening to make what Aboriginal and Torres Strait Islander peoples do and say across this nation count.

As the first woman to be appointed to the position of Social Justice Commissioner I knew I had to begin this journey by listening to Aboriginal and Torres Strait Islander women and girls. It has been 32 years since the Women’s Business engagements, the first and only time our women and girls’ voices have been heard as a collective.

In 2018 I led a national engagement project called Wiyi Yani U Thangani, meaning Women’s Voices in my language. My team and I travelled to communities in every state and territory. We went with no set agenda, or imposed framework. Our women and girls set the tone and determined the conversation. This for me is an important step to getting dialogue right. These are the skills that my mother and elders taught me, listen first, and when you respond, talk to people’s issues, needs and aspirations.

In 2019, it is time to listen, hear and meaningfully engage with our women again. Mid this year, we will hand to Parliament all of what our women and girls have said. All our strengths, issues, solutions and the future we want, a future self-determined by us, one that recognises the work that we are doing to realise and uphold all our rights.

After speaking with well over 2000 women and girls it is clear to me, they are constantly employing the principles and practices I’m speaking of, in navigating life. Skills of listening, communicating, delegating, negotiating and keeping the peace in often crisis driven situations. This is another example of everyday mediation that broader Australian society and the public needs to learn to value and support.

But we don’t. Everywhere I went with Wiyi Yani U Thangani, women and girls told me that racism, discrimination and marginalisation is entrenched across our institutions, organisations, and public spaces. The very institutions that should be supporting our women are undermining them. The foundational rights of self-determination and participation in decision-making, which women are clear they want, are constantly being eroded by discrimination.

Make no mistake, this reality has arisen from the colonial origins of this nation and the historical and ongoing injustices which have never been rectified. It has left a legacy of intergenerational trauma and poverty, contributing to feelings of powerlessness and disenfranchisement.

Even in the aftermath of one of our greatest triumphs in contemporary Australia – achieving the extraordinary legal milestone of native title, which overturned the lie of Terra Nullius – we remain constrained by western legal frameworks and notions of governance. And where we can choose to use cultural governance and decision-making to manage our PBCs it is given as an option, in a piece of legislation, written in someone else’s hand, under someone else’s law, captured within the legal mechanisms that drove colonisation.

I said in my opening that we manoeuvre between two worlds of governance and decision-making. And we do. But there is no framework in place to assist us in doing this. The truth is in the moments when we do reclaim our rights to land, language and culture, we are constantly having to negotiate within the conditions and expectations of western society. Our way of being and knowing is always secondary to doing things the western way.

Some of you would have worked in the PBC setting. You will have seen firsthand the competing interests and demands that families and groups must deal with as we make difficult decisions about connection to country, and land management and use. Many of these demands are the need to respond to the perpetual crisis and conflict that arise out of conditions of poverty, disenfranchisement and unresolved trauma. This leads to anger and sadness, and tensions and disputes between our peoples, which too often come to dominate our decision-making spaces.

Our peoples have been exceptional mediators across tens of thousands of years. But, today, in this western modernity when many of our people feel that colonisation has never ended, our greatest challenge is how to draw on our deep well of knowledge to reconstruct our societal frameworks, to reassert our foundational principles and practices. These principles is what brings us together, that helps us reunite, so we remain connected, and can account for everyone. Leaving no one out, and no one behind.

So, when I say that mediation is to live by, that it is for everyone in every moment, I mean it. In this space, that I am describing, mediation is not just dispute resolution. It is not simply about differences of opinion and the need to find common ground to move on. Mediation in this setting is about using the principles of collaboration, connectedness, nurture and care to heal the fractures and wounds of a society that has and continues to experience conflict. It is about the bringing together of peoples and families to revitalise societal health and wellbeing.

And now that many of us have native title determinations we are increasingly governing and making decisions to meet our needs and realise all our rights within our PBCs. This demands that we train both Indigenous and non-Indigenous peoples in the mediation I’ve described so we have a restorative process of discussion and decision-making, rather than one that isolates and dismantles us. To do this we need long-term resourcing that builds the capacity of our PBCs, our governing bodies, and our mediators. 

It is from a strong and unified governance position that we can reconstruct our societal institutions and frameworks and engage in the processes necessary to reconcile our place in the Australian nation. These are national processes of truth-telling and agreement making that allow for an honest and full understanding of our entire Indigenous history, of colonisation and the building of this nation. Such processes, truly driven by an Indigenous mediation approach – would be healing, restorative and reconciling.

This mediation – the stuff of life – is powerful! It has the capacity to unite diverse peoples, Indigenous and non-Indigenous, across this nation with a common purpose. It is all our challenge to make this whole of life approach to mediation real. When we practice it in our everyday actions, we construct the society we want to live in, while realising and upholding all our rights – the rights of our diverse humanity – in the process.

Thank you