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National Native Title Conference 2006: Tradition and Change – An Integrated Approach to Economic and Community Development on Indigenous Land

Mr Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner

25 May 2006

Before I speak about agreement making on Indigenous lands, let me acknowledge the Larrakia people on whose land we are today. The Larrakia are the neighbours of my people the Kungarakan whose country borders the Larrakia to the south west of Darwin.

There seems to be a never-ending number of negotiations and agreements that require the participation of Indigenous leaders. Increasingly, Indigenous leaders are required to enter into agreement-making for entitlements - and not just their personal entitlements – more often the entitlements of their boarder community. As people working in the native title system, you will know the decisions that are required regarding land under native title claim. In recent times however, governments have instituted policy that means Indigenous leaders have to sign up to agreements about services and resources in their communities. I want to talk about these agreements today, and I want to outline ways in which the various service agreements can complement the land agreements – and lead to economic development opportunities for Indigenous people on their lands.

Many of you are directly involved with native title agreements– including determinations, Future Acts and Indigenous Land Use Agreements. Agreement making is also required under the various statutory land rights regimes and heritage legislations. The decisions required of traditional owners in these contexts can include negotiations about exploration, mining agreements, procedures relating to the access and uses of land, licences to operate, and memoranda of understanding.

Since the abolition of ATSIC, the Australian Government’s new arrangements have included a new service delivery mechanism for Indigenous communities - the Shared Responsibility Agreements. Indigenous leaders are now required to engage in this additional process of agreement and negotiation concerning infrastructure projects, employment, nutrition, training opportunities and many other aspects of government service delivery relevant to local requirements.

Overall, this makes for a complex array of negotiations. A local example of an SRA here in the Bagot community is for the removal of asbestos from the health clinic. To give you some other examples of SRAs across Australia, in NSW there is an SRA for community night patrol training1, on Cape Barren Island the community is involved in establishing a program of family and community development services2, and in a homeland community in Arnhem Land, local women are staffing a school in exchange for school of the air services and facilities.3

Generally speaking SRAs are negotiated with community councils or small groups in communities with too few being negotiated with traditional owners for activities on communally owned lands. We have to change this practice and I will discuss how a little later.

Shared Responsibility Agreements are increasing being used to address service and infrastructure requirements in communities, and they will increase in number over time, so we all need to be mindful that if Indigenous people want to participate in these decisions in any meaningful way, we need to be well informed about a vast array of complex matters. We also need the support of the various players and stakeholders; governments, land councils, representative bodies and others, in order to assist in coordinating the platforms for decision-making and strategic goals of these decisions. We have to demand that governments provide the essential training and capacity building at the outset lest we, that is the Indigenous partners, be later accused of poor governance or failing to realise outcomes. For too long many of us may have focussed too much on getting the funds and not enough on getting the outcomes.

Despite the increasing complexity of agreement processes, I believe there is potential to coordinate the various agreements so that they provide comprehensive strategic directions for Indigenous communities. Now I want to say up front, that I don’t think that Shared Responsibility Agreements are the cure-all for issues that need addressing on Indigenous land. They are not. My intention today is to explore the ways in which some of the dots can be joined across the various sectors of government service delivery. If we, as lawyers, anthropologists, administrators, academics and advocates don’t know the broader picture of the government systems, how can we expect Indigenous community members who are often untrained in these matters to understand and make informed decisions?

Today I intend to talk about the role for representative bodies and bodies corporate in assisting to ensure that land agreements are clearly communicated to relevant parties in the interests of direct engagement and achieving common goals on Indigenous land.

SO, WHAT ARE SRAs?

Shared Responsibility Agreements, or SRAs as they are known in shorthand, are agreements between governments and Indigenous communities for services and resources for Indigenous communities in regional and remote Australia. They are based on the principle of mutual obligation. The government will provide a service or a resource in exchange for input from the community which might include the commitment of community funds, or the achievement of certain targets in improved education, employment or health outcomes.

According to the Office of Indigenous Policy Coordination, SRAs mean that:

Communities… take responsibility for determining their own priorities for change and to work out what they can contribute to making things better. This contribution could involve using community assets, such as a community centre, upgraded sports facility or tourism business; or it could be a commitment to invest time and energy towards outcomes. For real change, the community is expected to actively contribute, in some way, to achieving better outcomes for its people.

The Australian government has set a target to finalise 100 SRAs during the 2005-06 financial year.4

Since the implementation of SRAs in 2004, there are 238 registered across Australia. The vast majority of these were signed in 2005. Love it or hate it, the mutual obligation approach is the direction in which governments are heading.

Essential services are not supposed to be negotiated through the SRA process. Essential services include school education, health services, the provision of water, sanitation, policing and basic community infrastructure. I would argue that there are a number of SRAs that include aspects of essential services and basic community infrastructure. We have to be careful that government does not use the SRA process to abrogate its responsibility to provide essential services. SRAs should only be used as a means through which governments and community leaders agree to enhance or initiate non-essential services and resources. It is therefore important in this SRA process that traditional-owners and Indigenous people are informed about SRAs and able to initiate SRAs, in a way which adds value to their community.

HOW ARE SRAs RELATED TO LAND MATTERS?

There are many agreements that are pertinent to land. In terms of ILUAs, as of May this year there are a total of 247 registered ILUAs in Australia. The majority of ILUAs are in Queensland at 130, followed by the Northern Territory with 78. Victoria has 22, South Australia has 7 and both Western Australia and New South Wales have 5.

If the Indigenous Land Use Agreements specify agreements about the use of land, SRAs can be used to specify the delivery of services or capital improvements on that land. In addition, SRAs can be coordinated in a way that complements economic development activity and enterprise on land. Given that ILUAs can outline employment and infrastructure, there is a clear fit to consider a role for SRAs to further support Indigenous benefit from the land agreement.

It is my hope that SRAs can be used to negotiate specific infrastructure projects and community education and training that will enhance or create the preconditions for enterprise on land. For example, if an Indigenous community has signed to an ILUA that provides employment opportunities on pastoral or mining projects, SRAs could be negotiated for community education and training targeted to these enterprises. This education and training would be vocationally orientated and only for those who are of compulsory school leaving age.

If members of a community aimed to establish their own livestock enterprise, a SRA could be negotiated with government that included fencing infrastructure, stock water activities and agricultural management training in exchange for meeting employment targets for community members. It would be the role of Solution Brokers working in Indigenous Coordination Centres to negotiate and develop the SRAs as well as further supporting enterprise by sourcing other industry and business development schemes and capital assistance programs. These can be sourced from various Australian Government departments, the Indigenous Land Corporation and Indigenous Business Australia etc.

In the area of mining, if communities have entered into ILUAs with mining companies and employment options are negotiated, then, where required, SRAs can specify other resources and services that are not part of the ILUA. This might be accredited training in vocations that are relevant to the mining enterprise.

SO, WHY AM I TELLING YOU THIS?

WHAT ROLE DO YOU HAVE IN SRA AGREEMENT MAKING?

I am well aware that representative bodies and bodies corporate have many and varied statutory duties, not only to traditional owners but also to courts and tribunals, as well as having to meet legislative and contractual obligations through the funding system. I know that you also play an important role in reviewing and developing native title policy. Your input into broader policy discussions such as government reviews and industry initiated reviews is invaluable in ensuring the Indigenous perspective is represented in the development of policy by government and industry groups.

In view of these functions it is not surprising that numerous parties, not just Indigenous ones, consider representative bodies and bodies corporate a vital part of the native title system, and an important voice to represent traditional owners. Because of your role in negotiating and drafting traditional owner views and aspirations for land through the Future Act and ILUA processes, you are in a best position to communicate these aspirations and requirements to other stakeholders such as government representatives and encourage them to progress developments with the traditional owners or claimants.

Governments are parties to large numbers of ILUAs. In such situations, NTRBs and PBCs can identify the services and resources that have potential to support economic and employment outcomes for Indigenous community members. In effect, representative bodies and bodies corporate are well positioned to flag with government the services and resources that could form the basis of future SRA agreement-making. More than this, NTRBs and PBCs can flag the potential for complementary SRAs to land agreements with traditional owners, and then we may begin to see more SRAs that are focussed towards self determination and economic development that is initiated by traditional owners. Remember that such negotiation does not have to wait for a determination but it can commence at any time during the process.

We all need to see ourselves as players in breaking down silos between government departments and agencies. I know that representative bodies and PBCs are under-resourced for their statutory functions, and it may be unpopular to suggest another function. Nevertheless, as a minimum, NTRBs and PBCs should be in communication with Solution Brokers so that there is a conduit of information that outlines traditional-owner aspirations and agreements on land. Your role is one of communication. For PBCs especially, the role in contributing information and perhaps representing traditional owner perspectives in SRA agreement-making, may expand over time depending on how the functions of the PBC are constituted.

Ultimately it is the Indigenous Coordination Centres who have the task of coordinating SRA agreement making.

WHAT SKILLS ARE REQUIRED FOR INDIGENOUS PARTICIPATION?

In order to fully realise economic opportunities, traditional owners require both the know-how and the access to relevant government services and resources to progress their interests on land. If someone was to say to me and my neighbours tomorrow that we were responsible to negotiate services for our suburb, most of us would not know where to start, let alone how to achieve consensus in our decision-making.

I therefore suggest that during meetings with your Indigenous clients, you use the opportunity to raise the potential for other agreements such as SRAs to support land agreements. This is especially important in instances where you identify gaps in skills or resources to support Indigenous aspirations on land. As we know, not all communities are located on resource-rich country, not all have mines or other industry. Not all communities have access to private sector training and employment opportunities for local people. It is important to give traditional owners opportunities and the platforms to consider strategic directions for their communities so that they can participate to an optimum level.

In terms of human rights standards, it is essential that traditional owners can give free, prior and informed consent to any decisions that affect their well-being and the well-being of their communities. Being able to fully understand the agreement processes and having the time, the resources and the platforms to participate in decision-making in a meaningful way is what is meant by free prior and informed consent, and this process for participation in decisions is the foundation for real self determination.

In practice free, prior and informed consent means the following:

• Respond to the traditional owner group's goals
• Utilise the existing assets, knowledge and capacities of the group
• Build relationships
• Ensure that there is a common understanding of the process and the agreement

Self determination is a fundamental human right for Indigenous people. The right to self determination is contained in the Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of all forms of Racial Discrimination. If SRAs and ILUAs are developed with the participation of traditional owners, and if that participation is genuine and not token, then there is real potential for the various agreements to be part of self determination processes.

SO WHAT DOES THE SRA LOOK LIKE IN DETAIL?

The current SRAs are a collection of good and bad agreements. I’d like to provide an example here. This example does not arise out of a land agreement process, but it suggests to me potential for SRAs to support land agreements. I’d like you to consider this SRA in terms of potential for land management resources, perhaps in fact for the community that you represent.

Some of you may be aware of an SRA in the WA goldfields in Coonana. Coonana is situated on a 250,000 acre pastoral lease along the Trans Australia railway line in remote Western Australia and the community relies on water stored in six dams that are visited by numerous feral horses, cattle and camels. Under an SRA negotiated in 2005, new infrastructure will protect the dams and improve the local water supply.

Under the agreement, the Commonwealth Departments of Agriculture and the OIPC will provide $25,000 towards the construction of the yards, providing troughs and fencing materials and the construction of a dam.

The Coonana community has responsibility to build the trap yards to cull feral animals, build troughs for animals, complete the fencing and maintain the dams. They will also monitor stock levels and a 'work team' will be established to work with local pastoralists.

I am aware that this particular SRA is a continuation of government promised resources and services that were initiated during the 1980s.5 Nevertheless, I think the Coonana example demonstrates potential for SRAs to set out real employment agreements in exchange for government commitment to follow through on infrastructure agreements. My point in raising the Coonana example is to show that the SRA agreements can support land management, training and employment that has the potential to progress to Indigenous enterprise projects. This is especially important for communities that are not resource-rich and do not have access to support from industry.

To take this example to another level, hypothetically the up-skilling of Coonana community members and the management of the land infrastructure may set preconditions for a joint venture project with industry. IBA, that is, Indigenous Business Australia, has a specific mandate to consider business opportunities between Indigenous people and industry partners. There are also capital assistance and industry development programs funded through DEWR and the Department of Agriculture, Fisheries and Forestry. If SRA agreements complement land agreements we can begin to establish the preconditions for strategic development on land and in the sea. PBCs may have a role to play here and I acknowledge that they may not currently have the skills to be active participants however I am confident that the current review of PBCs may address this situation.

The role for representative bodies is to play a part in facilitating connections between the composite partners in the agreement making processes, or at least where we can. At this stage from my investigation of the agreements database, SRAs and ILUAs are not widely linked.

CONCLUSION

In conclusion, my intention in discussing this issue today is to increase traditional owner initiated agreements. There is potential to do this by improving TO’s understanding of agreement making processes, and by encouraging entities with responsibility to represent their interests, to set the platforms for strategic decision-making. There are some good examples of SRAs that are directed to the needs of Indigenous communities, but we must ensure that SRAs are not designed to only meet government aspirations. In the truest sense of mutual obligation, we should see the majority of SRAs coming from Indigenous people, as the services are for them, and they are in the best position to identify their needs.

Considering SRAs when setting up land agreements is logical and strategic. As many of us are well aware, there is still not enough coordination of government services on Indigenous lands. While SRAs are not the panacea for the range of issues that need addressing on Indigenous land, agreements that are negotiated by traditional owners to set direction for their communities are a step towards self determination.

I presume you are all familiar with the Agreements, Treaties and Negotiated Settlements Project database. It includes all Indigenous-specific agreements including determinations, ILUAs, SRAs, memoranda of understanding and other agreements. Since you can search by corporation or by agreement type, or by agreement subject, I suggest that this is a very effective tool for sourcing information about agreements, and thereby taking the first step to coordinating these agreements.

So to recap on what I have said:

• SRAs can and should be linked to ILUAs and other activities on Indigenous lands and seas
• You should demand that government provide clear simple English or language explanations about SRAs and how they are negotiated and when granted, provide governance and management training
• Make sure solution brokers work with you to identify all the different government agencies and funding sources that should be involved in the SRA, and
• Make sure that you are an active participant in the planning, development and implementation of the SRA.

`Thank you and I am prepared to take questions on any aspect of the agreement processes that I have spoken about today.

Footnotes

• [1] Bourke Community NSW: In exchange for Community Assistance Patrol training, the community will participate in the CAP Steering Committee and the Bourke Community Working Party (CWP) Secretariat will organise CAP Steering Committee meetings.
• [2] Cape Barren Island TAS: The community will establish a program of community-determined activities and ensure programs are run frequently and are well supported.
• [3] Dhuruputjpi Aboriginal Community NT: Establish a School of the Air – Three local women to staff the school.
• [4] Office of Indigenous Policy Coordination, Correspondence with Aboriginal and Torres Strait Islander Social Justice Commissioner - Request for information in preparation of Social Justice Report 2005, p2.
• [5] The people of Coonana were moved to Coonana from Cundalee in 1985-6, following the purchase of the Coonana pastoral lease in 1982. Incentives offered to the Wangki people as a trade off for moving to Coonana from Cundalee included pastoral enterprise, horticultural enterprise, market gardens and a grassed oval. Lack of water resources has severely hampered development at Coonana. In 1994 the population was estimated at 300 (250 in 1999). Coonana Aboriginal Community (Upurl Upurlila Ngurratja Incorporated). The Coonana SRA is administered by the Kalgoorlie Indigenous Coordination Centre SJC Review of the 1994 Water Report, 2001, HREOC