2005 International Conference on Engaging Communities - Engaging Australian Indigenous Peoples

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:

• http://www.humanrights.gov.au/social_justice/sjreport04/summary_sheet_2.html

Download Social Justice Report 2004 from:

• http://www.humanrights.gov.au/social_justice/sjreport04/index.html

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:

1. 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.

2. 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.

3. 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

4. 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.

5. 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:

• http://www.humanrights.gov.au/social_justice/ntreport04/index.html

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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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:

• http://www.humanrights.gov.au/social_justice/corporateresponsibility/development.html

Endnotes

1. 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.
2. 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.
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.
4. 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
   
5. ATSIC is the Aboriginal and Torres Strait Islander Commission.
6. ATSIS is Aboriginal and Torres
   Strait Islander Services. ATSIS was created on 1 July 2003 to be the
   administrative arm of ATSIC.
7. 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.
8. The National Indigenous Council is a government appointed, non-statutory body comprised of 14 Indigenous Advisers.
9. 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.
10. 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.
11. Agreements made at the regional level are called Regional Partnership Agreements. Agreements made at the local level are Shared Responsibility Agreements.
12. 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.

Last updated 24 January 2006.