The Commonwealth is taking us headlong into a remote policy chasm: but who cares?

                                                             This world to me is as a lasting storm.

Pericles, Act 4, scene 1.

 

In 2012, the then Commonwealth  Labor Government put in place a ten year initiative to support better life outcomes for Aboriginal people in the Northern Territory. This initiative followed on from the 2007 Northern Territory Emergency Response.  Originally known as Stronger Futures in the Northern Territory (SFNT), the initiative included a $3.4 billion funding package over ten years and complementary legislation. This initiative, pursued under the national Closing the Gap Framework only applied to the NT and included a sunset after ten years. The sunset takes effect from 17 July 2022.

 

Coalition Governments continued the initiative although they reduced some of the funding commitments, negotiated a new National Partnership Agreement for the funding and slowly withdrew resources to administer the legislation including in relation to the popular store licencing measures. 

 

There has been no public review or evaluation of the measures, as occurred for the Northern Territory Emergency Response before Stronger Futures in the NT was agreed.  However, the Coalition Government  recently announced the extension of its National Partnership Agreement for NT Remote Aboriginal Investment (NTRAI)  for two years (link here). The extension of the NP is welcome as it ensures that funding of $173m over two years is committed. The Ministers’ media release gave further details on the purposes of that funding:

The new funding across the NTRAI schedules of children and schooling and community safety will deliver services such as: police services supporting 300 officers to work in remote locations; alcohol reduction services, including support for a local health workforce and community determined initiatives; Aboriginal interpreter services to assist with interactions with social and justice systems; children and schooling services such as the Families as First Teachers early childhood program across 36 communities and capital works for teacher housing; health services focused on hearing and oral health in remote communities. (Delivered by Department of Health)

The extension also provides continued funding for critical child and family safety services, including women’s safe houses.

 

The Ministers’ media statement also noted:

The end of term review of NTRAI identified that more time was required to work with the Northern Territory Government and Aboriginal stakeholders to design future arrangements that are sustainable and continue to meet the community need.

 

This paragraph is in bureaucratic code: it probably means that the Government would prefer to cease funding, but wishes to defer a decision on long term funding until after the election. Unfortunately, the Review mentioned does not appear to have been released by the agency, as a search of the NIAA website was unsuccessful in locating the review. Consequently, we are not in a position to place the statement in its proper context.  

 

The other missing element in the Ministers’ media statement is the future of the SFNT legislation itself. A number of components of that legislation also sunset on 17 July 2022. These include the SFNT provisions on alcohol management in Aboriginal Protected Areas (APAs), the operation of Australian Government’s regulation of Community Living Areas (CLAs) and Town Camps, and provisions for store licencing in remote communities. Without action by either the Commonwealth or NT Governments, the effect of the legislative sunset will be to revert to the pre-2007 regulatory frameworks. In some cases, this will be out of date NT legislation (e.g. in relation to CLAs and Town Camps), in other cases, it will be a combination of NT arrangements and/or no arrangements whatsoever (e.g. in relation to alcohol and food security).

 

For completeness, it is worth noting that some other complementary legislation enacted along with the SFNT Act was not sunsetted and will continue (eg. income management provisions, customary law in criminal sentencing, and school attendance and welfare reform provisions).

 

The effect of this situation is that Aboriginal citizens in the NT face significant levels of uncertainty regarding the future institutional and policy frameworks applying across a number of major policy areas in the NT.

 

In a normal world with a competent and transparent Government, there would be a public review and evaluation that would assess the effectiveness of the SFNT measures and consider the implications of the sunsetting and  lay out the Governments preferred way forward. Such a review would be published and the community would have a chance to express its views on the proposed policy framework. In particular, if the Commonwealth proposes to withdraw from any of these policy areas, then the community should be allowed to understand its motivations or rationale for doing so. Further, in such a scenario, the proposed response of the NTG becomes highly relevant.  Taxpayers have a stake in this too.  It goes without saying  that taxpayers, voters, and especially Indigenous Territorians are entitled to know what the impact of a substantial investment by the Commonwealth over the past decade has been, particularly with respect to Closing the Gap. The implications for Aboriginal Territorians are enormous.  

 

Unfortunately, we don’t appear to live in a normal world. The Government has not laid out its intentions in relation to the legislation, a Federal election is due by May, and the new Government will be faced with an immediate legislative and policy challenge post-election. If the Government is returned, there may well be a new Minister, and it seems unlikely that the Government will have taken final decisions in advance of the election. In the event of a Labor or Labor/Greens Government, a new Minister will need to develop a policy position, take it to Cabinet, obtain a decision and draft, introduce, and negotiate passage for legislation within the first eight weeks of the Government’s term.

 

The consequences of the new Government (of whichever stripe) failing to legislate will be that the SFNT legislation will cease to operate, its alcohol provisions would cease, the current remote stores licencing arrangements will cease, and land administration policy for CLAs and town camps will revert to the NTG.

 

In relation to alcohol, such an outcome would remove the alcohol regulation framework currently in place, and implicitly shift regulatory responsibility to the NTG. The SFNT policy framework was primarily focussed on harm minimisation. Any shift of responsibility to the NTG will introduce a number of levels of uncertainty. At the most fundamental level, it may take many months for the NTG to itself decide on its preferred framework. When such a policy framework is finalised, there must be some doubt regarding the level of commitment to harm minimisation that will be brought to bear given that the NTG in late 2020 introduced legislation to circumvent the Territory’s own independent Liquor Commission processes (which are designed to ensure community harm minimisation) in relation to the establishment of a proposed Dan Murphy store in Darwin (link here).

 

The consequence of the cessation of the remote stores licencing framework would be to increase the level of food security risk considerably, and potentially open up opportunities for new store entrants with much less focus on delivering healthy and affordable foodstuffs and other essentials. This could undercut the profitability of those stores doing the right thing, and lead to an across the board deterioration in the quality of remote stores, with adverse consequences for remote community health, and increased economic pressure on families.

 

In relation to the land legislation, the removal of the SFNT provisions would remove the increased flexibility and capacity of Community Living Area owners to deal in their land in ways which facilitate their ongoing residence.

 

These are all quite technical issues, and I have summarised them at  a high level. But the bottom line is that the consequences of a poorly designed and implemented transition from SNFT is serious, and the window of opportunity for a new Government to even ensure that the SFNT continues unchanged is extraordinarily tight.

 

Unfortunately, in the absence of transparency about the current Governments intentions, we are unable to properly consider the implications. It is possible that the Government has developed a preferred pathway forward, or even taken formal decisions regarding that pathway. But no announcements have been made.

 

My intuitive assessment, reinforced by the decision that has been announced to renew the NTRAI for only two years and not ten years, is that the Government would prefer to shift responsibility to the NTG for all current SFNT measures.  . This would be consistent with their larger project of shifting Indigenous program and policy responsibilities wherever possible to the states and territories.

 

Clearly, such a decision would be politically problematic in the lead-up to an election. Hence the complete silence from the Government.  Yet the risk is that it will create the potential for a serious interregnum in regulatory arrangements in three areas of crucial significance to remote Territorians, and/or create preconditions that increase the risk of poorly thought out policy design and implementation in the transition to new arrangements.

 

These issues are hidden in plain sight. While they are on the public record, the technical complexity of the legislation means that very few individuals on the ground who will be most affected will be aware of what is approaching. The key Aboriginal Advisory Group with responsibility for representing communities in the NT is APONT (link here). APONT and its members must certainly be aware of the issues, but appear not to have made any public statement or media release on this issue. Nor have the key members of APONT, the Land Councils and AMSANT. How is it that no Aboriginal advocacy organisation in the NT has raised these issues publicly?

 

Perhaps coincidentally, in the media release announcing the extension of the NP NTRAI the Government announced a grant of $3m to APONT:

Minister for Indigenous Australians Ken Wyatt said $3 million will also be provided to NT Indigenous peak organisations to strengthen their ability to provide advice to Government.

“Putting Aboriginal people at the centre of decision making is a critical part of investments going where they’re needed most,” Minister Wyatt said.

“Building the capacity of Aboriginal Peak Organisations Northern Territory (APO NT) will allow Indigenous Territorians to help guide future investments that benefit and reflect their aspirations.

“This continues our commitment to working in partnership, so Indigenous Australians have a say on the policies and programs which affect them.” [emphasis added]

 

Of course, if one were to interpret funding payments such as this as a form of co-option, it would amount to the Government effectively ensuring that Aboriginal people are at the edges of the decision making over future changes to the key legislated regulatory regimes for alcohol, food security and CLAs and town camps.

 

The rhetoric regarding codesign, Aboriginal decision making and so on means nothing if governments are not prepared to have the issues under consideration dealt with openly and in the public domain. In fact, in the absence of open and transparent processes, claims of codesign are more likely to involve co-option and will inevitably lead to sub-optimal policy outcomes.

 

In the current case, the review of the NP NTRAI should have been released. If there is a similar review of the SFNT Act and the implications of its sunsetting, it should be released. If the Government has taken a decision on its approach to the SFNT sunset provisions, it should announce it. If it hasn’t taken a decision, is should explain why not. If the Opposition parties and the NTG were committed to open public debate, and truly concerned about the quality of life in remote communities, they would have raised these issues before now. If Aboriginal advocacy organisations wish to build trust with their own constituencies, they need to be on the front foot and keep Governments up to the mark.

 

It is worth remembering that in 2007, in the leadup to a federal election, a Commonwealth Government decided that the state of remote communities in the NT was such that it demanded an extraordinary policy intervention including the use of the Australian Defence Force, and a set of draconian and often punitive policy initiatives not seen in generations. Today, a Commonwealth Government, similarly months out from an election, has turned 180 degrees, and decided that policy inaction under the cover of obfuscation and slick political management is what is required.

 

It is also important to remember that exclusionary policy is not some abstract concept. It translates into real and tangible adverse impacts on the lives and life opportunities of Aboriginal families and individuals. If we want good public policy in the Indigenous policy domain, and wish to avoid tumbling headlong into the gaping remote policy chasm we will shortly confront, we all need to do better.

 

Indigenous land and economic development in northern Australia

 

I have been long a sleeper; but I trust

My absence doth neglect no great design

Which by my presence might have been concluded.

Richard III, Act 3, scene 4

 

The Parliament’s Joint Standing Committee on Northern Australia has recently released its report: The engagement of traditional owners in the economic development of northern Australia (link here). The inquiry was initiated, at the suggestion of North Qld MP Warren Entsch who chairs the committee, in late 2018, lapsed in April 2019, and restarted in August 2019. It has thus been in preparation for over two years (see paras. 1.43/44). The Terms of Reference were broad and relatively open ended, and cover a lot of ground both literally and metaphorically. The report comes in at over 100 pages, and is clearly written. The report is essential reading for anyone interested in the interplay of native title and economic development.

 

On my first scan of the recommendations, I was pleasantly surprised, as the Committee has focussed on some of the key challenges confronting the native title/land rights policy space in northern Australia (and beyond), and identifies the actions that Governments must take if they wish to see Indigenous communities across northern Australia contribute to and indeed drive the take up of economic opportunities over the coming decades. Implicit in the committee’s thinking (but not stated) is that the failure to grasp these opportunities will not merely be a lost opportunity, but will lead to the development of an Indigenous underclass excluded from economic participation, and will ultimately have an adverse impact on opportunities for mainstream economic development of the north.

 

In particular, the Committee recognises the crucial importance of effective Indigenous organisations in managing the Indigenous land estate in northern Australia.  Recommendation one which recommends increased funding for PBCs and native title Representative bodies, and to a lesser extent, recommendation two, which recommends increased support for capacity building of PBCs and NTRBs, are crucial to the future viability of the native title system nationally. The importance of the effectiveness of the native title system is made crystal clear if we consider that almost 80 percent of northern Australia is held under some form of Indigenous tenure or subject to an unresolved native title claim (para 1.42). Yet the report also notes that the Government was advised in a report conducted by Deloitte Access Economics in 2014 that the native title system required greater financial support (para 2.14). Paras 2.13 to 2.35 in the report lay out the case for increased funding in detail, but notwithstanding the unequivocal recommendation, the committee fails in my view to effectively portray the extent of systemic underfunding, and says nothing about why Government has ignored the issue for the past seven years.

 

Upon closer reading, the following eight recommendations usefully point the way forward on a series of issues that require attention, but each of them is framed in an equivocal fashion, that simultaneously would allow a government to accept the recommendation without necessarily committing it to action. So, recommendation three recommends a review of systems for appointment of PBC directors rather than recommending specific changes; recommendation four recommends that the Commonwealth should give consideration to crating an Indigenous strategy for northern Australia and a northern Australia Indigenous economic development body, recommendation five recommends the Commonwealth should support (unspecified) initiatives to make innovative use of land tenure systems to make land management effective (whatever that actually means)…and so on....Only recommendation ten is unequivocal. It recommends that the NT Aboriginal Land Rights Act be amended to reinstate separate vetos at exploration and mining stages, a policy change I support, but which I suspect has zero chance of being implemented.

 

The Committee’s report follows the standard model for these reviews: an introductory chapter describes the lay of the land (so to speak), then a series of chapters on the key issues. Each chapter sets out a high level narrative supported by extensive quotation from stakeholder submissions, and concludes with a Committee comment. The three substantive chapters in the report are titled: ‘strengthening representative bodies’; ‘role and performance of government entities’, and ‘pathways to economic development’, with a concluding chapter summarising the overall analysis.

 

The concluding chapter tells a coherent and valuable story, but it is a story that is far from new, and which doesn’t really break new ground. The Committee identifies the longstanding power imbalance between traditional owners and development proponents, argues that it can only be ‘redressed with resources and institutional capacity’ (para 5.3), which leads into the rationale for recommendations one and two. What the recommendations ignore however is the potential for governments to take seriously their role of representing the public and national interest (rather than particular corporate interests) and adopt and implement policies and legislative change that rebalances the playing field. In other words, we need to acknowledge and address structural exclusion and systemic power imbalances.

 

The report argues for increasing the transparency of decision making in representative bodies, (para 5.9) which I strongly support, but makes no mention of the reciprocal and arguably more important need for governments to increase their transparency.

 

The Committee’s analysis is somewhat confused and arguably one-sided when it seeks to address the tensions arising from the inalienability of both statutory and common law Indigenous tenures. At para 5.10/11, the Committee states, somewhat tautologically, that

 ‘A major barrier to the productive use of title to land under native title or land rights is land tenure….One of the key problems is the limited fungibility of land, especially that held under native title legislation, and the consequent problems of using land for investment…’.

 The Committee goes on to espouse the benefits of township leasing in the NT, making specific reference to the recent amendments that provide for community owned corporations to hold the headlease, which likely reduces the likelihood that banks and corporate lenders will take a mortgage and provide finance. I dealt briefly with this issue in a June 2021 post relating to the proposed changes to the NT Land Rights Act (link here). See also the Parliamentary Library’s Bills Digest on those amendments (link here)

 

The Committee discussion of these tenure issues extends from para 2.64 to para 2.106, essentially setting out the problem, and canvassing various solutions, but failing to alight on any specific solution. The core of the problem is that there are multiple factors mitigating against the ability of Indigenous land owners to raise capital using their land as collateral. The problem is best described as multi-faceted market failure. See the AIG submission for some case studies (link here). Leases (linked to ILUAs) are part of the solution, but while necessary, they are not sufficient. The way forward is for Government to establish an institution or mechanism to provide an underlying guarantee for loans which are utilising Indigenous land as collateral. Yet after two years of hearings, the Committee failed to explicitly identify the required policy action. Para 2.106 makes it clear that PMC (now NIAA) and AGD intuitively understand this, however they won’t take the final step as they understand too that there is no political will at the Government level to do so. As a result, the Committee is left lamely suggesting (para 5.13) that:

The financial challenges that prevent more effective leveraging of Aboriginal and Torres Strait Islander land assets should be seriously considered, including by financial institutions and banks.

 

Finally, it is worth considering what is missing from this report.

I will nominate three high level issues.

 

First, while there are multiple reference regarding the desirability of greater accountability within PBCs and NTRBs, there is virtually no recognition that Governments too need to be accountable for their policy actions and inaction, and that the best way for this to occur is via greater transparency.

 

Second, there is a desperate need for greater (not less) proactive policy engagement by government with a focus on the policy opportunities that exist within the native title /land rights space. The longstanding decision to place the administration of the bulk of the native title Act with AGD (and not with NIAA) is a recipe for adding ever more legal complexity at the cost of policy coherence and policy vision. In my view, it is major oversight that the Committee says nothing about the overarching portfolio responsibilities and what the means for the outcomes on the ground.

 

Third, given the focus on the intersection between Indigenous landowners in northern Australia, and economic development, it seems extraordinary that there is no mention in the Committee report of the operation of the North Australia Investment Facility, the Government’s $7 billion flagship for its northern development policy framework. The mention of the NIAF in the Office of Northern Australia submission (link here) is underwhelming. I don’t propose to go into detail here (I have previously discussed this issue here), but the fact that Indigenous interests have accessed only a miniscule proportion of the funds committed to date is clearly worth some attention.

 

While this appears somewhat negative, there are some positives. The Committee clearly put a lot of effort into building a consensus position, something that is probably necessary to gradually shift mindsets among the political elites who will determine the pace and nature of policy reform into the future. And the Committee inquiry created the opportunity for some substantive policy contributions from stakeholders and academics, including from the Indigenous Reference Group for Northern Australia (who promoted the idea of a northern Australia Indigenous economic development body supported in recommendation four. The submissions (amongst others) by Altman and Markham, by the ANU, by the Aboriginal Investment Group and of course by the Department of Prime Minister and Cabinet and the Attorney Generals Department are all worth reading (link here) and add to the quantum of accessible and policy relevant information in the public domain.

 

The bottom line arising from a closer reading of the Joint Standing Committee on Northern Australia’s report, both in what it recommends, and what if fails to deal with, is to reinforce how little the government has done since coming to office in 2013 to encourage the inclusion of Indigenous landowners and communities in economic activity. The Committee’s report deserves to be widely read with a critical eye. It identifies some positive directions, but falls short of providing a clear roadmap or policy agenda for taking Indigenous participation in the northern Australia economy to the next level. Unfortunately, there is also a risk that if there were to be a change of Government in May this year, then the new Government might be tempted to use this report as a partial policy roadmap. Such a result would be disastrous in my view for Indigenous interests, and a lost opportunity for a new Government, and would signal a lack of real engagement at systemic levels by the new Government.

 

The Committee is correct in highlighting the economic opportunities for Aboriginal and Torres Strait Islander interests in northern Australia, but fails in my view to lay out an effective pathway to ensure those opportunities will be grasped anytime soon. The responsibility to act however falls upon governments. It is time they roused themselves from their drowsiness, and woke up to the opportunities available from pursuing policy reform designed to reverse the ongoing exclusion of Indigenous interests in northern Australia, and beyond.