Interregnum

I expect there will be an interregnum in posting to this blog over the next month or so. Apologies to my few dedicated readers!

In small recompense, I can only offer Puck's defence:

“If we [walking] shadows have offended, / Think but this, and all is mended, / That you have but slumber’d here / While these visions did appear”

A Midsummers Night’s Dream

Ben Murray Gallipoli Veteran

In late 1975, my partner Boronia and I had the pleasure and privilege to accompany a linguist, Peter Austin, to Marree in South Australia. Peter was completing his field research for his PhD in Linguistics on the Diyari language. Peter is now one of the world’s leading authorities in endangered languages.

In the small town of Farina, we met up with Ben Murray, one of Peter’s key informants and consultants, and one of the few remaining speakers of Diyari.

Murray was the only occupant of the abandoned township, moving from one house to the next as they fell apart around him. We heard a little of his remarkable life story then, and I particularly remember him telling us about his time as a soldier in the first world war.

Peter (along with co-authors Louise Hercus and Philip Jones) later published a short biography of Murray in the Journal Aboriginal History: 'Ben Murray (Parlku-nguyu-thangkayiwarna)' Aboriginal History, vol. 12, no. 2, pp114-188. Pages 159 and following recount his time as a soldier in Gallipoli and Palestine.

Murray’s life was remarkable in many respects, spanning as it did the interactions of three communities, Indigenous, Afghan and Anglo-Saxon. Murray’s stories (link to article here) provide some insights into the nature of the remote Australian frontier in the 1890s, and to Murray’s stoicism and sense of humour. I particularly remember Murray explaining how his knowledge of Afghan language and customs assisted in ensuring that he was captured alive and not killed by the Turks in 1918, an event recounted in some detail in the short biography.

Murray died in 1994 at the age of 101. He deserves to be remembered on this ANZAC day. Perhaps we should also remember the contribution and persistence of Murray’s Diyari forebears whose knowledge of the land, whose customs and language now rests on the brink of extinction.

Lear on justice

Poor naked wretches, whereso'er you are,
That bide the pelting of this pitiless storm,
How shall your houseless heads and unfed sides,
Your loop'd and window'd raggedness, defend you
From seasons such as these? O, I have ta'en
Too little care of this! Take physic, pomp;
Expose thyself to feel what wretches feel,
That thou mayst shake the superflux to them,
And show the heavens more just.

King Lear Act Three Scene Four

Fair Agreement or Ongoing Dispossession?: The Noongar Settlement in WA

In 2003, the Noongar people lodged a single native title claim over the south west of Western Australia.

In 2006, in Bennell v Western Australia (2006) 153 FCR 120, Wilcox J of the Federal Court found that Noongar people were, subject to any prior extinguishing acts, native title holders over the areas claimed. This decision was overturned on technical grounds by a Full Federal Court decision in 2008 (Bodney v Bennell 167 FCR 84) and the matter sent back for reconsideration.

With this litigation as a backdrop, the Noongar representative body, the South West Land and Sea Council and the Western Australian Government began discussing a settlement. This led to a Heads of Agreement between the two parties being signed in 2009, and in 2013 the WA Government released its settlement offer. Details of the background and elements of the offer are available here.

This offer has been discussed at a series of community consultation meetings across the south west region, and has been approved in principle by the majority of Noongar native title holders. However some 107 objections to the registration of the relevant ILUAs have been submitted to the National Native Title Tribunal and four applications have been made to the High Court seeking to prevent the NNTT from registering ILUAs. The bulk, if not all, of these objections are from within the Noongar community itself. This litigation is currently on foot and will presumably take some time to be resolved. In the meantime, the finalisation of the Settlement is in limbo.

Last week Sarah Bell, a Western Australian anthropologist who had worked for the South West Aboriginal Land And Sea Council (SWALC) gave a seminar at the ANU exploring the sources of the opposition to the proposed settlement of the Noongar native title claims in south west Western Australia within some elements of the Noongar community.

Bell’s research explores the roots of the opposition which appears to emanate from a small but vocal minority of Noongar people. It manifests itself in a focus on human rights, loss of sovereignty, the concessions implicit in the agreement including agreement to give up all claims to native title over the areas involved, and to future compensation.

While the rhetoric has a large emotional component, it is clear that the motivations of those expressing scepticism about the actions of government in seeking a negotiated settlement are based on a longstanding and more than justified sense of distrust of government. Government, as the formal representative of mainstream society, has been responsible for the dispossession and cultural devastation inflicted on Noongar people over almost two hundred years. And this leads them to the question: what has changed now?

For its part, SWALSC maintains that the benefits it has negotiated are substantial and comprehensive and justify the concessions being sought by the Western Australian Government. The SWALSC website lists the various benefits, which include annual allocations to a ‘Future Fund’ of $50m pa indexed over 12 years, the transfer of up to 320,000 hectares of various Crown Lands, and various other provisions. Glen Kelly (the CEO of SWALSC) and Stuart Bradfield make the case for the Settlement agreement in a recent book on native title developments, Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment (reviewed here).

As part of the process of informing Noongar people, SWALSC sought specific legal advice in relation to the merits of the settlement offer, and this is available on their web site (link here). The advice is very insightful in that it lays out the very substantial impediments to a successful native title claim, including such pragmatic factors as that the judge at first instance has now retired, the anthropologist whose research underpins the claim, and his informants, may no longer be available through to the significant legal risks arising from the substantial resources which will be devoted to disproving the claim by the WA Government.

The advice adds that to go a further step and seek to claim compensation for native title which has been extinguished since 1975 (when the Racial Discrimination Act was enacted) presents a further order of difficulty. Finally the advice confirms what has been clear since 1993, namely that the Mabo Decision is about property rights and not sovereignty. Australian law gives no joy to anyone claiming to have retained sovereign rights against the Crown.

I have laid all this out because Ms Bell’s seminar caused me to reconsider my own position that the Noongar Settlement is the way to go. To date my view has been that the Noongar are on the right track in seeking to negotiate a settlement. Litigation is always expensive, uncertain, and hence risky. Moreover the benefits negotiated appeared to be substantial, and they will be certain and flow much more quickly than anything derived from litigation. In addition, I had not seen any coherent argument to the contrary.

I am not persuaded by the rhetoric of the Noongar dissenters (while I acknowledge their history and absolute entitlement to the views they are expressing). In other words, it is not that I now believe that a settlement is inappropriate. However the question arises in my mind: what are the appropriate terms of such an agreement?

The answer to that question is one for SWALSC and the Noongar people as a whole. The dilemma they face, and which I wish to highlight, is that they are operating under two significant constraints: they face a considerable level of uncertainty as to the underlying position of the Western Australian Government, and the law on compensation for extinguishment of native title is still in a state of flux, with a number of current cases ongoing in relation to the extinguishment of native title.

The Western Australian Government has vast experience in managing native title issues, and the WA Premier has the advantage of having as his Departmental CEO Peter Conran, a highly professional and capable bureaucrat with deep experience of land rights and native title across a number of jurisdictions. This tells me that the WA Government would not have entered into this Settlement Agreement without good reason.

There are two potential reasons. The first is a desire for certainty, something on which governments (and corporations) place great store. Certainty is always desired, but I doubt that it would drive the negotiation of a billion dollar agreement such as we have on the table in WA at the moment.

The second would be that the WA Government knows that they have extinguished areas of potential native title since 1975, and while these extinguishments will have been validated by the Native Title Act (this was the core of the grand bargain entered into by the Indigenous Interests and the Keating Government in 1993) compensation will be payable. Where the (extinguished) native title involved is exclusive possession, then there is every chance that the values which will be applicable approach (or even exceed) freehold. When we bear in mind that areas involved include the Perth metropolitan area, and its surrounding suburbs and towns, and reflect on the expansion of urban development since 1975, we can see that the scope for significant compensation liabilities is significant. Just a single subdivision of 500 house blocks valued at say $500k each would total $25m, suggesting that the proposed $600m ‘Future Fund’ may not be particularly generous.

Of course, there may be no such areas of native title extinguished, and there may be no native title across the areas involved. However, given the deep scars arising from both dispossession of Aboriginal people, and the concomitant loss of their cultures, and as a consequence severely diminished life opportunities, there is in my view a strong case in social justice terms for Governments to be more transparent about their underlying legal positions in cases such as this.

I am certain that the Western Australian Government knows whether they have extinguished potential native title land since 1975, and probably has an estimate of the potential value of such land. The extent of the generosity of their offer in the proposed Settlement Agreement can only be judged with access to that information.

Governments will claim that there is a commercial imperative to retaining confidentiality regarding their worst case scenarios. While I don’t necessarily accept this (it is another way of saying that Indigenous citizens should wear the majority of the costs of settlement and dispossession), one approach would be for the WA Government to commit to releasing their internal advice five years after the agreement has been finalised.

In the absence of any such transparency, it seems to me that there would have been a strong case for the Noongar negotiators to insist on some sort of review process (say in forty years) or acknowledgement of government’s fiduciary responsibilities to Noongars which would open up the opportunity to revisit the agreement in the event that it becomes apparent that the agreement represents an unjust outcome.

The second substantial issue which arises from the Settlement Agreement (assuming it is implemented) is that all the risk of ensuring that the funds and benefits which transfer are effectively managed fall on SWALSC and the Noongar people. This is not a unique problem; many native title groups face similar challenges. It is not clear to me how well prepared Noongar people and their organisations are to meet this challenge. What I have learnt over thirty years in public policy is that strong governance, backed up by resolute corporate regulation will be a key component of successfully meeting these challenges. Governments, in both Canberra and Perth, have a role in ensuring that the corporate regulation framework governing the investment, distribution and allocation of funds from native title agreements are appropriately oversighted. This is an area where Governments could do significantly better.

My final observation is to note the length of time which is involved in resolving the Noongar claims and the proposed settlement agreement, and to make the obvious point that this necessarily exacts a huge toll on the participants involved. Notwithstanding the internal conflicts which have emerged, the Noongar people, and their leaders, appear to have handled the process in an exemplary fashion. The broader community rarely steps back to acknowledge the ongoing imposts on Indigenous people who are merely seeking to use the convoluted and arcane legal systems we have put in place to achieve just a modicum of justice.

Homelands Policy: from Antagonism to Confusion

Next Monday, ANU Press is launching a book edited by Nicolas Petersen and Fred Myers titled Experiments in Self Determination: Histories of the Outstation Movement in Australia, which explores the history of the outstation movement in remote Australia through a series of case studies of particular outstations which interrogate the complex interactions between demography, attachment to country, community aspirations, cosmology and culture, all within the shadow of the overarching and changeable demands of government policy.

I haven’t read the book, but a quick scan of its contents and the chapter authors convinces me that it will be an important book for anyone keen to understand Indigenous (and primarily Aboriginal) perspectives on the history of the last fifty years across remote Australia.

At its most abstract level, the debate has swung between those who argue that residency on outstations has no economic basis nor future, versus those who argue that there are strong social , cultural and even health reasons for supporting small remote outstation communities.

So for example, in March 2015, then Prime Minister Tony Abbott made a statement suggesting that Governments could not subsidise the ‘lifestyle choices‘ of Indigenous people to live on remote communities and homelands.

Against this view, see the 2009 report commissioned by AMSANT, the Institute for Cultural Survival and the Miwatj Heath Service on the health benefits of living on country. See also a congruent report outlining the health benefits of participation in caring for country activities.

It is fair to say that government policy has emerged from a period of near universal antagonism to the notion of outstations (or homelands as they are often called) and entered a policy space characterised by a hefty degree of confusion.

In recent years, there has been a complex chess game between the Commonwealth and the states over responsibility for municipal support for remote communities including outstations. The Commonwealth Government finally bit the bullet in 2013 and announced it would no longer fund these services (helped in the NT by a longer funding tail embedded in the National Partnership Agreement on Stronger Futures in the Northern Territory).

The fundamental problem here from a policy perspective is structural. That is, local governments which fund these services for non-Indigenous communities has historically not been required to do the same in the Indigenous realm. Moreover, local government jurisdictions are patchy in their coverage with large unincorporated areas still existing in some states, and its funding base is flawed. So for example, the Government funding flowing to local governments is linked to population levels and not need. And from an indigenous perspective, the reliance on rates of many local governments is not suited to the realities of Indigenous ownership of non-commercial tracts of land which are not able to sustain a rates base.

The policy confusion arises because different approaches towards support of outstations and small remote communities have opened up between the states, and the Commonwealth is largely running dead.

Western Australia has its own history of debate over the future of remote communities including outstations. In 2014, the Western Australian Government announced a decision to defund remote communities (see here and here), which it subsequently back-tracked on in favour of a review/consultation process which is ongoing.

The risk that the Western Australian Government will attempt to walk away from support for many small communities and outstations is still very real.

However, in the Northern Territory, the election of the Giles CLP Government in 2012 built largely on splitting a significant number of bush electorates away from Labor, and the new Territory Government’s realisation that it will need to work extremely hard to retain those electorates in this year’s election, has meant that the CLP Government has adopted a much more supporting attitude and policy towards outstations and homelands. The personal roles and influence of Indigenous Ministers such as Alison Anderson (now an independent) and Bess Price has clearly been influential too.

The Northern Territory Governments policy on Homelands is set out in a policy document titled Homelands Policy: A shared Responsibility dated March 2015, although its website indicates that the policy is under review. The shared responsibility refers to the responsibilities of governments, residents and landowners. For a perspective from the left, see the critique of the policy published by Jon Altman shortly following its release. To its credit, the NT Government has committed to funding transparency and the web site provides lists approved funding for outstations. Funding allocations overall appear to be around $30m per annum (refer to the Fact Sheet).

The Commonwealth, for its part, appears to have placed outstations firmly on the backburner. It does not appear to have a clear policy framework, apart from managing the exit from its MUNS funding responsibilities. The mantra ‘these are state and territory responsibilities’ holds sway in the corridors of the Department of Prime Minister and Cabinet.

In the NT, the Commonwealth has the luxury of access to the Aboriginal Benefits Account which allows the Minister to make relatively random and small grants available to outstations. A proposal originating under the previous Government to make available an envelope of some $40m for outstation support subject to the ABA Advisory committee developing a policy framework appears to have stalled.

The 2012-13 FaHCSIA Annual Report reported on proposals to develop a Homelands Policy for the ABA:

During the 2012–13 financial year the ABA Advisory Committee developed a Homelands Policy Framework which outlines a more strategic approach for using ABA funds to support homelands. The proposal was developed after extensive consideration of the issue by the committee and its Homelands Subcommittee. The document was endorsed by the ABA Advisory Committee at its meeting in November 2012 and forwarded to Minister Macklin in February 2013. The report advises that the Department is currently working with the ABA Advisory Committee on options for implementing the framework.

The Minister announced the results of last ABA Funding Round in June 2015. Many of the grants are allocated to outstations for a range of purposes. Of the 43 approved grants, at least 13 appear to be directed towards assistance for outstations.

As mentioned in a previous blog post, there has not yet been an announcement of the ABA grants arising from the September 2015 round, and this is now well overdue. With a Federal election set to be announced within weeks, and a caretaker period preventing ministerial funding decisions, we can expect announcements very shortly. Of course it is possible that the Minister has made decisions, and decided not to announce them. The scope for politicised use of the ABA is quite high given its limited geographical scope (it can only be used in the NT) and the fact that the Minister who can make unilateral decisions (albeit after advice from the ABA Advisory Committee) is himself an NT Senator and there is an NT election scheduled for later this year. The non-announcement of funding decisions would be prima facie indicators of political trickiness.

On a related topic, I understand that the NT and Commonwealth Governments last year jointly commissioned a review of Homelands Assets and Access by the Alice Springs based Centre for Appropriate Technology. The report was designed to assist the Commonwealth to finalise its approach to implementation of the ABA Homelands policy. CAT apparently finalised the report a couple of months ago, however it has been held up in Minister Scullion’s Office and is yet to be released.

Contrary to the expectations of many outstation resource agencies, the results of the report have not been discussed with them in draft, leading to an increasing sense of anxiety. Rumours emanating from the NT bureaucracy suggest that the Minister may be considering the establishment of an ‘ABA Corporation’ to manage and expend the $40m allocated to implementation of the ABA policy.

If these rumours have substance, such a move, particularly if announced without consultation and discussion, would engender fears amongst many interests, including the land councils, that the funds were being ‘pre-allocated’ and locked up in advance of the forthcoming federal election.

To sum up, the aspirations of thousands of Indigenous citizens to live in outstations and homelands continues to challenge Australia’s tendency towards mono-cultural modes of economic and social life. Governments appear unable to drive the structural and institutional changes which would allow funding support to flow automatically for the essential services which most Australians take for granted.

The NT, to its credit, has turned a corner and appears more open to accepting the reality of diverse remote modes of living. However it will eventually hit the constraint of limited funding. The key to a sustainable national policy framework for the nation lies within the Commonwealth Government.

Unfortunately, the Commonwealth appears to be lagging, and sees all policy through funding lenses rather than as part of a coherent and synergistic framework built on freedom of choice for all citizens.

To end where I began, I will read the new Peterson and Myers book with interest not least because an understanding of the historical roots of the outstation movement is essential to understanding the complexities of the issues we are dealing with today. I suggest that anyone else with an interest in remote Australia do the same.

Transforming Rangeland Policies: Indigenous Opportunities

In 2008, a Western Australian Parliamentary Committee, chaired by The Hon Tom Stephens MLC undertook a review into the training needs of Indigenous pastoral enterprises in WA. The review noted that of the some 520 pastoral leases across WA, some 60 were owned and operated by Indigenous interests. The review raised a multitude of issues and recommended, amongst other things greater focus on governance as a key driver of enterprise performance for Aboriginal owned pastoral leases, and an expansion of the allowed activities on pastoral leases.

In June 2015, all WA pastoral leases expired and were required to be renewed. The Department of Lands website has a page devoted to explaining the changes and the consultation process which led to the renewals. Somewhat surprisingly, 435 pastoral leases were renewed for terms of 50 years, representing 99.5 percent of the leases up for renewal. Implicit in this decision was confirmation that the renewed leases were meeting their lease conditions. Yet the reality was and is that the pastoral industry faces extensive commercial and environmental challenges across Northern Australia (notwithstanding the buoyant market conditions at present) and certainly a substantial proportion of the Aboriginal owned pastoral leases in WA are not commercially viable in their own right, and thus have trouble in meeting the lease conditions.

Substantial work was undertaken by the WA Government in the years leading up to the lease expiry date. The fact that a failure to renew a lease would mean it reverts to Crown Land, and that this would potentially lead to a native title claim by the traditional Aboriginal land owners, meant that the WA Government had a strong incentive to renew all the expiring leases whatever their actual compliance status.

It follows that the renewal of the 60 or so Aboriginal pastoral leaseholders does not resolve the ongoing challenge to find ways to sustain productive use of the lands into the future. Each pastoral lease will have its own set of unique opportunities, but overall a considerable challenge remains in front of the Aboriginal owners of WA pastoral leases.

Consequently, the recent moves by the WA Government to set in motion a reform of rangeland land use policy is to be welcomed as it will expand the range of options available to leaseholders in seeking to find ways to make productive and sustainable use of their lands. The Government has recently begun a process of consultations on a rangelands reform Bill, and released a rangelands reform Position Paper which explains the broad outline of the reforms. The rangelands cover some 87 percent of WA, and include both the pastoral estate and other land held under native title and by the Crown. I have not had a chance to undertake a close analysis of what is proposed, but on its face it seems a major improvement. The Government describes its proposals in the following way:

To increase investment in the Rangelands, the Government proposes to create a new lease type that allows for multiple and varied land uses. The lease will co-exist with native title and other interests in the land and will require land management that preserves the rangelands resource. At least one of the uses must be broad scale.

A rangelands lease enables a wide range of activities on the land, including: multiple uses – e.g. grazing livestock, horticulture, agriculture, tourism; Aboriginal economic development and land management; mining companies for environmental offsets, rehabilitation obligations or where their activities are substantially inconsistent with pastoral uses; conservation purposes; rangelands use in conjunction with off-lease activities; [and] taking advantage of future opportunities that do not currently exist.

The Government has released materials to underpin the consultations it is progressing. Of particular interest to Indigenous interests, the proposed changes will retain a reservation in favour of ongoing access for Aboriginal persons ‘to seek sustenance in their accustomed manner’. This replicates the longstanding reservation in WA’s pastoral leases. The changes will also require compliance with the Native Title Act’s future act processes to ensure that any new activities do not adversely impact any co-existing native title rights. This will generally require the negotiation of an Indigenous Land Use Agreement for new activities, and will mean that native title interests are protected.

The proposed reforms will also see the abolition of the Pastoral Lands Board with the Minister taking over decision making; but there will be a Pastoral and Rangelands Advisory Board to provide advice to the Minister on matters of general policy pertaining to the rangelands. Indigenous interest will likely be represented (along with tourism, mining, natural resource management and other expertise). Importantly, lease fees will be related to the viability of the activities undertaken on the leases, and will be reviewed regularly.  

There may well be devil in the detail which I have not identified, and I am sure that key indigenous organisations will be making submissions to the WA Government on the Bill. Nevertheless, the proposed changes appear sensible and to my non-expert eye, represent an improvement on the current regulatory regime which was essentially designed to meet the needs of a nineteenth century pastoral industry.

It seems clear that the Government is keen to push these reforms through by the end of the year, in advance of the expected state election in early 2017. There will not be much time to develop an Indigenous agenda on these issues.

On related matters, the most recent WA Department of Lands 2014-15 Annual Report includes a number of other Aboriginal related matters of interest.

These include the following three issues listed under the significant or emerging issues for the Department (p30):

The provision of access to Crown land is a significant component of the South West Native Title Settlement package between the State of Western Australia and the South West Aboriginal Land and Sea Council to surrender Native Title over six registered Noongar claims in the South West region. The department will implement the identification, selection and transfer of Crown land under the South West Settlement Agreement.

The department, on behalf of the State, is responsible for risk management of over 37 percent of the State that is unallocated Crown land or unmanaged reserves. The department manages this through Memorandums of Understanding with the Department of Parks and Wildlife and with the Department of Emergency Services for Crown land within townsites.

The department is continuing the ongoing development of State land policy in relation to the interaction of mining, petroleum and geothermal interests and consent under section 16 (3) of the Mining Act 1978, with the extinguishment of Native Title for exclusive possession land tenure grants and the operation of section 24 MD (3) Native Title Act 1993.

In relation to the South West Native Title Settlement, the Report also reports on progress towards finalising the land transfers involved:

The $1.3 billion native title settlement between the State Government and Noongar people is the first of its kind in Australia. In exchange for the surrender of Native Title rights and interests, the State has offered a package of benefits including up to 320,000 hectares of land. The department’s role is to identify land that is primarily stocks of unallocated Crown land and unmanaged reserves and transfer up to 20,000 hectares in freehold and up to 300,000 hectares as reserve to the Noongar Land Trust. Up to 30 June 2015, over 28,000 hectares of land was identified by the department and selected by the South West Land and Sea Council. A further 20,000 hectares is currently under assessment.

In relation to the unallocated Crown lands and the unmanaged reserves, the policy issue which jumps off the page here is the unfulfilled potential for Indigenous involvement in the management of these lands (notwithstanding the substantial growth in highly successful Indigenous Ranger Programs over the past two decades) and the apparently relaxed attitude to non-management of large parts of the state. As the process of native title claims are progressed, this management responsibility will flow to native title holders, as will the financial costs and potential liabilities. This is a huge issue for remote Australia, for native title holders and ultimately for the nation. For all the attention we allocate to managing our borders, it seems more than ironic that we are prepared to under-invest in managing the extensive land areas which comprise our sovereign domain.

The Annual Report also includes reference (p 78) to a number of contingent liabilities related to the extinguishment of native title land post 1975 when the Racial Discrimination Act was passed and which thus requires any compulsory acquisition of native title to be on just terms. The report notes that it is not possible to quantify the liabilities at this stage given the lack of judicial guidance on how to determine such amounts. There is currently a case underway based on in the Federal Court which will throw light on these issues. The case concerns the extinguishment of native title in the township of Timber Creek in the NT. Here is a recent legal analysis of the issues at stake.

Implications

I have spent some time outlining a number of the key Indigenous related issues relating to WA’s rangelands not because I wish to delve into the intricacies of the proposed reforms, but rather to give greater prominence to the policymaking activities which are currently underway. The Indigenous groups and organisations which will inevitably be affected either positively or negatively are quite diverse and geographically dispersed, and include land councils, PBCs or Registered Native Title Bodies, groups managing ranger groups and other conservation activities, and a relatively large number of Aboriginal owned pastoral properties.

There is a particular and pressing need for Indigenous pastoral leaseholders both to work together and to work with other Indigenous advocacy groups such as native title groups to advance their commercial perspectives and promulgate their policy aspirations. As Government brings more coherence to rangelands policy, encompassing a wider range of activities, Indigenous interests must also bring more coherence to their lobbying capacities across the breadth of rangelands issues.

Moreover, the fact that the policy framework for the rangelands is finally likely to be brought into the twenty first century means that Indigenous pastoral lessees in particular must also ensure that their management approaches and their capacity to influence government policy is also modernised. At present, there appears to me to be substantial strategic gaps in Indigenous policy influencing capacities across the rangelands. While my comments have focussed on Western Australia, I suspect that the implications are just as valid for the NT and North Queensland.

Aboriginal interests have over the past two decades come an enormous distance in strengthening their economic, social and cultural position in Australia’s rangelands. However, in the mainstream there is a major economic transformation underway as a result of the rise in Asia’s middle class, and this is driving major change to mainstream rangelands policy. Indigenous interests will need to continue to strengthen their footprint on the ground, think strategically about economies of scale (most individual pastoral leases are not sustainably viable on their own), and build more effective lobbying voices in Perth, Darwin, Brisbane and Canberra if they are not to fall by the wayside as the policy and economic changes currently in train in across rangelands in agriculture, aquaculture, water management, tourism, and carbon farming (to name just a few) roll out.

The opportunities for Indigenous interests are huge, but they require a coordinated and sustained investment in building capacity to manage and take advantage of the opportunities inherent in the transformational changes currently underway across Australia’s rangelands. The cost of getting it wrong will set Indigenous interests back for generations to come.

The Arcane Arts of Fiscal Equalisation: some implications for remote Australia.

The Commonwealth Grants Commission has released its 2016 Update Report on GST relativities.

The NT Government published a media release reporting on the outcome for the Northern Territory. The headline commentary was as follows:

The Commonwealth Grants Commission (CGC) has recommended a reduction in the Northern Territory’s share of total Australian GST revenue from 5.7% in 2015-16 to 5.4% in 2016-17.

Treasurer David Tollner said the recommendations contained in the CGC’s Report on GST Revenue Sharing Relativities 2016, released today, will result in a significant decline in GST revenue from 2016-17 ongoing.

“For 2016-17 the decline is estimated at around $145 million, compared to the 2016-17 estimate at the time of the 2015-16 Mid-year Report” he said.

The release went on to contextualise the decision, pointing out it related to a slowing in NT population growth rates relative to other jurisdictions, and somewhat counter-intuitively given the slowing in population growth, above average growth in the NT’s capacity to collect payroll tax, driven by robust employment growth, which reduced its assessed requirement for GST revenue.

The CGC explained the recommendations like this:

The Northern Territory remains the State with the lowest fiscal capacity; however, its share of GST in 2016-17 has fallen from 5.7% to 5.4%. This is primarily due to a significant decline in the Territory’s share of national population growth which reduced its need to invest in new infrastructure. To a lesser extent, the fall was due to an improvement in its payroll tax capacity. While the Northern Territory’s increased fiscal capacity will see its GST share fall, its GST entitlement in 2016-17 will rise by $5 million, or 0.2%, due to growth in the pool.

It is worth making a couple of high level points about the implications for the NT of this decision.

The NT is consistently assessed as the jurisdiction with the lowest fiscal capacity and thus in proportionate or per capita terms, it receives the highest level of subsidy. According to the CGC, the NT’s fiscal capacity is ‘primarily due to its above average assessed expenses which arise from of its above average shares of a range of population groups, but in particular it has exceptionally high proportions of Indigenous people and people in remote areas. This is compounded by the greatest diseconomies of small scale in administration of all States’.

The NT Treasurer made no mention of the admittedly small growth of $5m in the funds available this year to the NT in his media release.

In terms of the financial extent of the changes for the NT, see Table 27 of the CGC report. The changes in relative population growth had an impact of $115m, the payroll tax growth was $25m. However, not far behind driving a reduction of $19m was a decline nationally in outer regional and remote community health service use and an increase in non-State sector service provision in the Northern Territory between 2011-12 and 2014-15 has reduced the Northern Territory’s assessed community health spending and thus its GST share. Interestingly, there was an increase of $15m arising from new child protection data which resulted in upward revisions to the measured share of substantiations attributed to remote Indigenous children. The NT’s revenue increase was due to its high proportion of remote Indigenous children. While these latter two changes virtually cancel each other out, they point to the ongoing impact of the Commonwealth’s Stronger Futures National Partnership and legislation in driving change on the ground which then flows through into broader fiscal relativities.

A further interesting issue in the CGC Report is at paragraphs 89-91 and Table 2-5. It reports on the treatment of Commonwealth Own Purpose Expenditure for Indigenous affairs (in essence, the Indigenous Advancement Strategy). It shows that of $64m in grants to state government instrumentalities, some $49m was included in the relativity assessment process, in effect reducing the revenue of the jurisdictions receiving that $49m (while not reducing the overall pool available to jurisdictions). It does open up the question of why the Commonwealth would fund state government instrumentalities under the IAS.

Paragraphs 92-97 dealt with the $1.08bn in payments to non-government entities for Indigenous advancement by the Commonwealth under the IAS. The Commission decided that it would not assess these grants as part of the relativity assessment process, though this was more because of data issues than a substantive conceptual reason.

The NT Treasurer’s media release included an interesting statement:

The reduction of the GST revenue has been slightly offset by the partial exclusion of Commonwealth payments under the National Partnership Agreement on Remote Indigenous Housing.

Paragraphs 98 – 134 of the Report include an extended assessment of the potential treatment of NPARIH payments. The issues involved are complex and can’t be adequately dealt with in this post. They go in part to the notion that the Grants Commission assesses relativities in relation to capacities of jurisdictions to meet their recurrent provision of services, and do not relate to capital expenditures of jurisdictions. I will return to NPARIH in a subsequent post.

It is worth noting however that the existence of longstanding and severe capital investment deficits in remote communities is a fundamental structural problem which the CGC and fiscal equalisation processes do not address.

Notwithstanding the salience of remote and indigenous issues in the fiscal equalisation process, it remains the case that it says nothing about how jurisdictions actually spend the funds which are recommended and paid from the pool of GST revenues. The internal allocation by states and territories of funds to remote communities and Indigenous populations remains largely determined by political processes which are quite separate to the arcane arts of fiscal equalisation.