Monday, 20 February 2017

Anthropology, native title, and public policymaking


This post outlines an argument for the greater use of anthropological insights in policy development, and examines two current examples, including the current proposals to amend the Native Title Act to support the argument.

I recently had the pleasure of attending the annual conference of the Centre for Native Title Anthropology held in Perth and an associated seminar convened by the Centre, the Native Title Tribunal and the Federal Court to acknowledge 25 years of anthropology in native title.
Both events provided fascinating insights into the practice of native title claim research, practice and litigation leading to determination from the perspectives of both anthropology and the law.

My aim here however is not to review these proceedings but to develop some comparative reflections on the making of public policy in Indigenous affairs derived from the way in which the courts and legal system has developed over the past twenty five years since the High Court’s Mabo decision.

Each of the three arms of government, the Legislature, the Judiciary and the Executive contributes to Indigenous policymaking, yet the roles of the legislature and particularly the judiciary are often underappreciated, at least by those who are not involved directly in either of those arms of government.

What became very apparent to me over the course of the two days of proceedings was that the overthrow of terra nullius and sudden emergence of the native title system, and the consequential requirement on the legal system, in particular the Federal Court, to hear and determine native title issues created an imperative for cross cultural social analysis to facilitate the professional and objective consideration of the requirements contained in the Native Title Act. Of course, Aboriginal and Torres Strait Islander claimants invariably give evidence directly, but the logical and conceptual complexity arising from differing epistemologies invariably necessitates a process of what is in effect cross cultural translation to allow the courts to give full effect to the evidence that is made available to them by Indigenous witnesses.

While it was very evident that the incorporation of anthropological (and linguistic) expertise into the litigation process has not always been easy or without structural tension, over the course of twenty five years, a body of practice incorporating anthropological evidence has developed in native title litigation and has in effect been institutionalised within the legal system. The fact that many Federal Court judges are now routinely exposed to professional social science analysis of complex native title issues and assisted by anthropological (and other) experts will no doubt ultimately have spillover impacts in the ways in which the higher courts deal with a wider range of Indigenous related litigation.

In stark comparison, the Executive and in particular the bureaucracy has not been required to utilise social science analysis in developing policy. There has been no institutional driver or imperative on the bureaucracy in its policymaking roles equivalent to the requirements in the Native Title Act which required the courts to assess the merits of assertions by claimants of continuous connection to particular tracts of land.

The consequence has been that the Indigenous affairs bureaucracy, by and large staffed at senior levels by generalists with limited experience of Indigenous communities, and faced with an institutional imperative to make universal policies for a highly heterogeneous group of citizens, is structurally unaware of its own ignorance of the ways in which Indigenous groups and societies operate.

There are numerous potential objections to the proposition that there should be a greater role for anthropological analysis in public policymaking, but I will pick out just three of the most salient.

The first potential objection is that policymaking which incorporates appropriate and adequate consultation with Indigenous interests will offset or counteract the absence of anthropological and related social science analysis in the policymaking process.
Of course, consultation with Indigenous interests if undertaken well will go a long way to adding value to the policymaking process. Setting aside the fact that consultation is expensive (both in resources and time) and not often undertaken to an appropriate level, the increasing complexity of the Indigenous domain involving hundreds of family, kinship and language groupings, differing levels of accommodation to the dominant society, new and emerging forms of engagement (‘hybrid structures’) suggests that Indigenous perspectives on policy proposals will themselves be diverse, directed to differing objectives, adopt differing lenses and perspectives, and reflect deeper underlying cultural forces and imperatives which are not necessarily apparent to non-Indigenous policymakers. 

While policymaking is an art and not a science, and inevitably involves trade-offs and value judgements (as well as a substantial dose of politics: intra and inter-agency conflicts; budget conflicts; and second guessing of ministers), it seems to me at least that the bureaucracy would be better positioned to provide comprehensive and effective advice to Ministers if it found ways to supplement consultation with Indigenous interests to better incorporate anthropological knowledge into the policy development process at least for substantial policy initiatives.

A second potential objection might be that anthropology is politically compromised either because its epistemological roots are embedded in the colonial project, and it thus is just another arm of the dominant settler society, or at the other end of the spectrum, because its practitioners are captured by Indigenous interests as a result of their modus operandi based on participant observation, involving extensive time living and working amongst particular groups of Indigenous subjects.

I don’t have space to deal with each of these arguments in full, but would merely note that while both arguments have potential validity, the experience of the courts in the native title system has largely been that the professional ethos of the discipline of anthropology works to counteract these vulnerabilities. It will always be necessary to choose individual advisers carefully based on their skills, knowledge and professionalism. The potential for poor choices of anthropological advisers is not an argument against accessing anthropological and related social science expertise more generally.

A third potential objection might be that anthropologists do not have the requisite policy skills to enable them to make an effective contribution. While some anthropologists would undoubtedly struggle with some of the more arcane and ruthless practices of the bureaucracy, the experience in the native title system is that the anthropological profession has managed to make the adjustments required to ensure that their advice and perspectives can be presented in effective formats. There would inevitably be tensions and challenges involved in attempting to incorporate anthropological insights into the policy process, but persistence on both sides would find a way through.

Finally, it is worth perhaps providing some examples of current policies which may have benefited from greater anthropological input.

The implementation of the last Labor Government’s Remote Jobs and Communities Program (RJCP) and more sharply, the current Government’s Community Development Program (CDP) both involved implicit program logics which were based on an assumption that remote ‘jobseekers’ would respond to incentive structures in particular ways. Both programs experienced challenges on this front, with many ‘jobseekers’ responding to their own culturally determined imperatives rather than to mandated program requirements by in effect voting with their feet to ignore program requirements, often leading them to exit the program. The current extraordinary breaching levels under CDP (link here and here) are evidence of fundamental program and policy failure but policymakers appear unable to recognise the underlying causes of the problems. 

Were there to be an institutionalised role for anthropological advice within the policy development process, the blind adherence of policymakers to yet tougher incentives and penalties would potentially be questioned from within. As it is, the program is being heavily criticised publicly from without, but political and policymaking realities make public acknowledgement of failure a fraught business.

A second quite recent example concerns the consequences of the recent McGlade decision in the Federal court. The Court held, contrary to previous authority in the Federal Court’s 2010 Bygrave decision, that the Native Title Act required an area ILUA (that is an ILUA negotiated by a group of claimants before a determination of native title had been made) be signed by all members of the Registered Native Title Corporation (RNTC) rather than just a subset of members. The Court recognised that this requirement was virtually unworkable and would require legislative amendment (as it even included the requirement for the signature of deceased members) but was not prepared to read down the explicit drafting of the legislation.

As a consequence, the four ILUAs in McGlade were overturned (they related to the Noongar Native Title Settlement in the south west of WA) and some hundreds of previously registered ILUAs were potentially invalidated. Also placed at risk was the ILUA negotiated (but not yet registered) in relation to the proposed Adani coal mine which is being vociferously criticised by a subset of native title claimants.

Following the decision, the Government moved swiftly (albeit arguably belatedly- link here) to introduce amendments to the Native Title Act to validate existing ILUAs and to change the requirement for unanimous agreement from members of the RNTC to allow a subset of members to be appointed by the RNTC to sign the ILUA and in the absence of such an arrangement by the RNTC, to provide that a simple majority of members of the RNTC would be the default requirement to allow registration of an ILUA.

The text of the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 and the Explanatory Memorandum are available on the Parliament web page for the Bill which also allows progress of the Bill to be monitored (Link here).

The Bill has passed the House of Representatives, and is currently the subject of consideration by a Senate Legal and Constitutional Affairs Legislation Committee, which will be required to report on 17 March 2017, the Friday before the next Senate sitting day.
In the debate in the House of Representatives, issues raised included the potential for an RNTC to be pressured by a proponent to authorise a small group (potentially just one person) to approve an ILUA (see Warren Snowden’s speech link here). The processes which govern such an authorisation would be controlled by the terms of the RNTC’s constitution, which can vary from corporation to corporation, but in many cases are likely to require merely a majority vote of Corporation members, who may or may not all be native title holders/claimants. Certainly, the Bill’s default provision for a majority vote where an RNTC has not made an authorisation for the process will go a long way to enshrining western norms of decision making in the legal superstructure erected by the Native Title Act.

That these decision processes are potentially sensitive and contentious can be seen in the conflict which has arisen between Indigenous groups over the Adani mine proposal. Here is a link to a media report of native title claimants expressing concern at the way the Adani ILUA has been negotiated.

My preliminary point is not to express an opinion on the merits of the arguments in relation to the Adani proposal, but to point to the fact that there is a disjunction between the ways in which decisions are made by native title holders in relation to their lands and the provisions set out in the current Amendment Bill. While the current provision is clearly unworkable, it arguably is a closer reflection of Indigenous decision making processes (which may have changed over the past two hundred years) than the proposed mechanism with its focus on a majority vote of RNTC members.

My substantive point is that the Executive (in this instance the Attorney General’s Department) appears to have given no consideration to the merits of trying to reflect traditional norms of decision making into the proposed provision, but have merely adopted, almost unthinkingly, the western norm of majority voting. Of course, while widely accepted as a ‘fair’ method of making social choices, it is essentially arbitrary, and subject to a range of ancillary influences which can potentially impact on the process (for example, is voting compulsory, are the set of RNTC members representative of the native title holders, are children allowed to vote, is there an adequate process for explaining the implications of the issue to be determined to voters, and so on). These are exactly the sorts of issues to which anthropological insights might be expected to add value. 

The absence of an institutionalised role for anthropological input into policy in effect ignores and makes irrelevant the statements in the Preamble of the Native Title Act which provides, inter alia:
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. 
and the Objects Clause in section 3 which  includes the statement: The main objects of this Act are: (a) to provide for the recognition and protection of native title;… 

The effect of the amendments will be to open a doorway to outcomes which fundamentally compromise the communal nature of the title insofar as it will be possible for a bare majority subset of native title holders and /or RNTC members to make decisions regarding the land which in theory is owned jointly by all native title holders.

The contrast with the Northern Territory Aboriginal Land Rights Act (ALRA) is instructive. Section 23 (3) of that legislation, referring to the functions of Land Councils, provides:
In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that:
            (a)       the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and
            (b)       any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council. [Emphasis added]

In effect, ALRA adopts a middle ground which more closely reflects Aboriginal cultural practice and while it does not require group unanimity, it does require something more than a bare majority.

In my view it is unfortunate that the Government in dealing with the present requirement to amend the NTA did not adopt something more along the lines of the ALRA formulation. The absence of any institutionalised avenue for the provision and consideration of anthropological advice with respect to issues pertaining directly to matters of land ownership policy is in my view one of the reasons the Executive arm of government is willing to merely adopt non-Indigenous western norms in devising the necessary amendments.

Perhaps the consideration of the Bill by the Senate Committee will open up an opportunity to consider a revised decision process. However, the third arm of Government, the Parliament, is largely controlled by the Executive. Given the complexity of public policy issues which come before Parliament, there would be value in Parliamentary Committees moving to incorporate a greater role for independent expert staff in the consideration of issues coming before them (along the lines of the US Congressional committees). In Indigenous policy contexts particularly, there is again scope to consider utilising anthropological expertise as an additional source of advice.

To sum up, the Federal Court has by necessity developed an institutionalised process for accessing anthropological expertise in dealing with native title issues. This raises the question whether other arms of Government, in particular the Executive, might usefully emulate the Federal Court and seek to make explicit provision for the incorporation of anthropological advice into the policy development process. While there are potential objections to this idea, the experience of the Federal Court suggests that they do not represent insurmountable challenges. Two current examples are discussed where policymakers might usefully have relied more heavily on anthropological advice in devising policy.


Given the challenges governments face in addressing Indigenous disadvantage, there is a case for greater innovation in the policy development process. The idea explored here is just one potential option for greater innovation.