Post referendum policy options: perhaps we should blame ourselves

This earthly world, where, to do harm

Is often laudable; to do good, sometime

Accounted dangerous folly

Macbeth, Act four, Scene two.

 

In the wake of last week’s referendum defeat, Queensland Opposition Leader David Crisafulli announced via an op ed in the Courier Mail last Thursday that he was withdrawing his support for a treaty in Queensland (link here) and if returned to government would repeal the Path to Treaty Act 2023 (link here) legislation which the Opposition had previously supported. That legislation establishes a pathway to a treaty or treaties. Section 5 of the Act sets down the main purposes of the Act:

The main purposes of this Act are to—

(a) establish the First Nations Treaty Institute to— (i) develop and provide a framework for Aboriginal peoples, Torres Strait Islander peoples and the State to enter into treaty negotiations; and (ii) support Aboriginal peoples and Torres Strait Islander peoples to participate in treaty negotiations; and

(b) provide for the establishment of the Truth-telling and Healing Inquiry to inquire into, and report on, the impacts of colonisation on Aboriginal peoples, Torres Strait Islander peoples and the history of Queensland.

 

Following the passage of the legislation, the Queensland Labor Government issued a statement (link here) where the Premier stated:

“[This legislation] furthers the commitment made between the Queensland Government, Aboriginal and Torres Strait Islander peoples, and non-Indigenous Queenslanders on 16 August 2022, and paves the way for truth-telling and healing, and treaty preparations to begin… All Queenslanders will benefit from a reconciled Queensland, and we are committed to working with Aboriginal and Torres Strait Islander peoples towards reconciliation, truth-telling and healing, and reframing the relationship.” [Emphasis added]

 

In the period since the Act was passed, there has to date been no indication of substantive progress in appointing the Institute members. Meanwhile an interim body continues to operate (link here and link here).

 

According to Opposition Leader David Crisafulli, a treaty would only create further division. Within 24 hours, the Queensland Premier was expressing her own reservations regarding her Government’s legislation establishing a path towards a treaty, stating that a treaty would require bipartisan support (link here). The Australian (link here $) in an article headed ‘Palaszczuk to give up on treaty’, reports that the Government had ‘moved to abandon laws – passed this year with the support of the LNP – enabling treaty deals and reparations for up to 150 groups…. [at a press conference] Ms Palaszczuk would only commit to going ahead with truth-telling hearings, due to begin early next year’. In an article in today’s Australian (Local voice on cards for remote island; Link here $) the Premier is quoted as stating that she personally supported treaty deals but they would not progress without bipartisan support:

It’s a long process, so the truth-telling is three to five years. The treaties will come afterwards and that is for subsequent governments.

 

Ben Smee’s analysis in the Guardian (link here) points to the political calculus behind the Opposition’s policy shift, and the Government’s response, and observes how the Government’s preparedness to buckle to pressure both diminishes trust and encourages further provocation. What he doesn’t emphasise however is the deeper and longstanding reinforcement of distrust and disenchantment amongst Indigenous Queenslanders that will inevitably follow.

 

In NSW, the Labor Government is reassessing its own policy settings in relation to establishing a state wide Voice (link here). The Australian today (link here $) is citing the NSW Premier as indicating his government was not planning to take a position on a possible treaty before the next state election:

All we’re promising is to start that dialogue…I can’t promise quick changes, but I have promised dialogue.

 

In The Conversation Michelle Grattan laid out a succinct assessment, arguing that despite the Government’s good intentions, the pursuit of the perfect over the good has delivered nothing:

…the Voice is dead and reconciliation is, at least for the moment, a wasteland …. Albanese was well motivated, but a great deal of harm has been done. (link here)

 

In the light of the developments in Queensland and perhaps NSW, this assessment is looking accurate.

 

Grattan goes on to say:

Albanese says he is waiting to be advised by Indigenous people on where to from now. When the government said in the campaign it had no plan B, that seems to have been the case. It has not yet clarified its post-referendum position on treaty and truth telling.

 

The Deputy Prime Minister, Richard Marles did state on the ABC Insiders program the day after the referendum that the Uluru Statement for the Heart (which addresses treaty and truth telling) continues to be part of the Government’s agenda. I subsequently saw reports that these comments were being tracked back and downplayed. The Government is now stating that it is waiting to hear from Indigenous people on their views on how to proceed before outlining its position. Grattan’s assessment is likely correct.

 

The referendum campaign, and in particular its result, were clearly epic failures; and since he came to office, the Prime Minister had been central to each of the strategic and tactical decisions taken along the pathway to that result. Implicit in Michelle Grattan’s critique is to lay responsibility for the consequences of the outcome with the Government and in particular the Prime Minister, and clearly, in terms of day-to-day politics in Australia, that is where accountability must reside.

 

Yet an analytic focus that sees the world purely through the lens of its impact on quotidian politics is to my mind fundamentally inadequate. Such a focus is infused with an innate contemporaneousness that over-emphasises what politicians and political actors say rather than what they do, and adopts the perspective promulgated by political actors across the political spectrum that implicitly frames political and policy debate and discussion as ephemeral and never final. This is particularly the case in relation to Indigenous policy, because Indigenous interests lack the innate influence of more powerful interest groups and tend to focus on the perfect over the good (perhaps because that is how to best obtain and sustain support within extremely heterogeneous Indigenous constituencies). The result is that there is a dearth of sustained focus on specific policy proposals in public policy discourse on First Nations related issues, and instead an over-emphasis on vague and inchoate high level aspirations such as ‘treaty’ or ‘truth-telling’. These are perfectly legitimate and adequate political tactics, but entirely inadequate as a guide to policy development.

 

To take a random example, the absence of sustained pressure for the provision of core funding for PBCs in the native title space astounds me (link here).  Both governments and First Nations advocacy groups are happy to engage in policy discussions about complex and high level issues that are continuously swathed in process, discussion and review, but never lead to final decisions or progress. Yet simple and comparatively inexpensive reforms that would make an appreciable difference to First Nations negotiating power are ignored by both governments and First Nations advocates.

 

In the case of the Voice, this presentism in most public discourse ignores the history and wider factors that led to the referendum result, and under-values the consequences and implications for the future of today’s decisions and actions by actors on all sides of the debate. At the risk of over-simplifying my argument, the public debate leading to, and beyond the referendum is taking place in the realm of ideology and ‘the vibe’ rather than in terms of substantive argument and exchange of views designed to persuade. The processes established by governments over the past six years have been consistent with the longstanding approach by governments of promising the world, raising expectations, but failing to deliver. This is essentially Michelle Grattan’s argument. Going forward, there is every likelihood of more of the same.

 

In these circumstances, we can blame governments. The Queensland Government’s ‘commitments’ on Treaty appear to be not worth the paper a treaty would be written on. Both the Queensland and NSWE Governments appear determined to kick the treaty can down the road, again. Federally, the previous LNP Government established a seemingly never-ending set of slow moving processes and reviews to ‘develop’ a Voice, along with a series of shifting and politically convenient policy rationales (e.g. support for regional voices) yet never took action to either legislate the Voice or to put it to a referendum. The Albanese Government pursued the ‘perfect’, a high risk all or nothing strategy without a ‘plan B’, hiding behind the rationale that this is what First Nations wanted — a rationale it has doubled down on post referendum.

 

This is not the first time that the expectations of First Nations have been raised and then razed, although in this case it was the Australian electorate that delivered the coup de grace, and not the executive government. Governments deserve enormous criticism for raising expectations time after time, year after year, and when they change policy direction, for razing whatever institutional infrastructure exists to the ground, and forcing Indigenous citizens to start afresh. The sorry history of Indigenous advisory bodies to Commonwealth governments are just one case in point.

 

However, perhaps those who make it their business to criticise governments for their poor or non-existent performance (for example bloggers such as myself) and policy think tanks, leaders and advocates, both Indigenous and non-Indigenous, should look more carefully at their own complicity in this all so predictable danse macabre. A dance which involves governments and oppositions alike, avowing, pledging, promising, making commitments, raising expectations, baulking, shifting course, penultimately ‘kicking decisions down the road’, and only when cornered, coming clean and announcing that what had been a commitment was in fact just an ephemeral thought bubble. We know what politicians are like. We know they are prone when deemed necessary to deceive, delude, dissemble and divert. Yet how is it that we fail to call governments out when they are so clearly focussed more on raising expectations than on delivering. Perhaps it is time to blame ourselves?

 

Why might we deserve to be blamed?

 

Reasons abound. For allowing debates to proceed untethered to reality. For allowing ideology to permeate our thinking, marginalising pragmatic incremental gains. For allowing political actors — whether politicians or advocates — to commit to or support outcomes (or targets, or processes) without undertaking the requisite intellectual work to specify the strategy, and without articulating how policy proposals and promises will be funded and by whom. For readers who would like an extended list (focussed on the vexed issue of closing the gap), I refer you to my submissions to the current Productivity Commission review of the National Agreement on Closing the Gap (link here).

 

My fundamental point is that the threat of political accountability is patently ineffective, and —even when delivered decisively at an election — is not adequate to ensure constructive policy outcomes in the Indigenous policy domain. Power — its necessity, its benefits and uses, its excesses, and its costs — pervades our systems of democratic policymaking. Yet left unchecked, power degrades and corrupts our institutions, our systems of governance, and ultimately our way of life. The paradox we confront is that power is both necessary and ubiquitous, and insidiously avoids all attempts at constraint and regulation. It flows through our institutions like water through rubble. The challenge is to devise ways to check its most egregious excesses. One obvious way is to build and sustain a robust culture of ‘speaking truth to power’, where debate is welcomed, and the contest of rigorous argument between alternative views is valued. Promoting and engaging in constructive debate is a responsibility that falls on us all; but is easier said than done.

 

Too often we baulk at the threshold, as engagement is hard work. The Indigenous policy domain is not just about policies that impact First Nations citizens. It is also about the sort of nation we wish to be, and this requires all Australians to develop and express ideas (which flow into actions) about the place of Indigenous citizens within our nation’s fabric and institutions. To my mind, it is a mistake to think that non-Indigenous citizens have no role to play in shaping our nations policies in relation to the place of First Nations citizens within our polity. Bernard Keane in Crikey adopts the diametrically oppositive view in his article titled The job of non-Indigenous Australians now is to… shut up (link here).

 

It is particularly a mistake for governments to abandon the responsibilities they took on upon being elected, namely to make decisions in the general public interest, and to implicitly claim that it is for First Nations interests to set out the policy agenda to be pursued. The obverse of this assertion is that it would also be a mistake for Indigenous leaders and advocates to be taken in by such rhetoric, and to allow themselves to once again be misled and ultimately to be disappointed. To be clear, it is both necessary and important that governments and policymakers listen to, consider, and hopefully take on board where they can Indigenous views; but this does not justify governments abandoning their overarching responsibilities for the policy choices necessary to advance the public interest, and it certainly does not justify governments hiding behind rhetorical nonsense — views that they do not in fact believe — in order to avoid making difficult policy decisions.

 

Creating a culture of robust and respectful debate on public policy, and particularly Indigenous policy, where different views can be raised and discussed is an important task that we as a nation appear to have allowed to lapse. The restitution of such a broad-based culture of debate and discussion is important if we value a free and fair future for our children and their children. Unfortunately, for too many of us (including me), taking concrete steps towards the establishment of such a culture too often seems like dangerous folly

 

24 October 2023

 

 

The Voice result will be seen as an inflection point for Indigenous policy

 

I am amazed, methinks and lose my way

Among the thorns and dangers of this world.

King John, Act four, scene three.

 

Following the defeat of the Voice referendum, I published a short article in Inside Story (link here) arguing that the referendum will come to be seen as an inflection point in Indigenous policy: no longer will it be tenable to conceptualise the policy domain as involving a single Indigenous interest that must be weighed and factored into the public interest. Instead, policymakers will increasingly deal with Indigenous issues on the basis of particular Indigenous interests, and these will be advocated and articulated against the countervailing pressure of other interests, Indigenous and non-Indigenous.

 

In my view, this is increasingly how public policy is made — the current reality — albeit it has not been widely recognised. Instead, the virtually ubiquitous perspective, including amongst the advocates for the Voice, has been that it remains possible to span the competing Indigenous sub-voices, and conjure up a single national First Nations Voice which represents or speaks on behalf of all Indigenous nations, communities and people on all major issues of concern to First Nations. I too have, until comparatively recently, unthinkingly shared this view.

 

To be clear, while it is possible to argue that the multiplicity of Indigenous views (reflecting different yet cogent perspectives and interests) contributed to the defeat of the referendum, I am not seeking to engage with why the referendum failed. Instead, I am seeking to look forward, and make a hard-headed assessment of how mainstream policymakers will increasingly engage with policy issues involving Indigenous interests into the future.

 

Nor am I seeking to deny the existence and importance of shared histories, shared cultures and shared identity amongst First Nations people. My point is merely that in policy contexts, interests and interest group competition will increasingly come to dominate decision making processes. I am not arguing in favour of this, merely making an assessment that this is what is happening.

 

An aspect not directly addressed in my article, but of increasing significance, are two trends: the first is the inexorable shift by governments to utilise mainstream policies and programs rather than Indigenous specific programs and policies combined with greater policy reliance on, and deference to, the states and territories rather than the Commonwealth, and the second is the trend in mainstream policy and political decision-making forums to give increasing profile and attention to special interests (link here). Both trends reinforce the argument I am making; both can be persuasively criticised, but they are nevertheless happening. One implication is that when interest group influence is pervasive, governments are not as focussed on ensuring that the public interest is protected.

 

The bottom line for First Nations is that if they desire to shape policy, they will increasingly need to engage in the struggle for influence with competing interests, both Indigenous and non-Indigenous. See this earlier post on similar development in the US (link here). Of course, there is enormous scope to critique such an outcome, and it is important in democratic polities that such critiques exist. But such critiques (however persuasive) are normative and conceptually distinct from the ways and processes that apply to the of making of policy impacting and affecting First Nations. Reliance on mere rhetoric, or an implicit assumption that democracy (where voters are properly informed) will always deliver just outcomes aligned with the general public interest will not be enough to shape policy. The outcome of the Voice referendum provides a clear cut demonstration of this point.

 

I recommend the Inside Story article to interested readers.

Indigenous involvement in the renewables transition: the case of critical minerals

 

Make use of time, let not advantage slip.

Venus and Adonis, 129.

 

On 4 October 2023, Professor Ciaran O’Faircheallaigh (link here) gave an insightful and well-argued seminar at the Centre for Aboriginal Economic Policy Research (CAEPR) at the ANU on the implications of the transition to renewables and net zero on demand for critical minerals, and the concomitant implications for Indigenous peoples globally and in Australia.

Information on the seminar is available on the CAEPR website (link here) and a recording of the seminar may be available shortly.

O’Faircheallaigh’s core argument can be boiled down to a series of propositions:

• the transition to renewable energy/ net zero will involve an extraordinary increase in production of critical and energy transition minerals (including lithium, cobalt, copper, nickel and rare earths) in order to produce the technology required to avert a climate catastrophe;

 

• The world’s resources of transition minerals are heavily concentrated on or near Indigenous territories.

 

• The history of mineral extraction on or near Indigenous lands has had significant adverse impacts on Indigenous peoples and thus been fundamentally unjust.

 

• Increasingly, in circumstances where Indigenous landowners have not been engaged and their social, cultural and economic rights have not been respected, Indigenous peoples have found ways to successfully delay or stop resource developments on their lands using a range of tactics from protests and direct action to litigation.

 

• These conflicts impose commercial costs on mineral developers, and will increasingly pose a threat to the global transition to renewable development.

 

• Governments are increasingly allocating substantial financial incentives to corporations aimed at encouraging the acceleration of investments necessary for the transition to a renewable future.

 

• However, invariably, there is no support in these strategies for Indigenous interests who are key stakeholders in the lands that are directly affected by mining and other elements of the transition. O’Faircheallaigh cited the Australian Critical Minerals Strategy (link here) which provides over $3bn in financial incentives to developers, but zero to Indigenous landowners affected by developments.

O’Faircheallaigh characterized the likely outcome of the current global transition pathway as lose/lose: Indigenous interests would seek to inject themselves into the development processes for new mines and other developments, and likely achieve sub-optimal outcomes (both financially and in terms of their other objectives); but so too will the global climate (that is, you, me, and the global population) lose as the critical investments in land based resources necessary for the transition will be slowed and perhaps diverted elsewhere as a result of the Indigenous objections and lawfare.

The solution according to O’Faircheallaigh is to ensure that Indigenous landowners have a legal right to exercise free, prior and informed consent (FPIC) over developments on their land. In Australia in the context of land rights legislation, this is often also known as a veto. Such a right would ensure Indigenous interests are engaged in the development process, and have the capacity to negotiate the terms of any mining or resource development.

Commentary

I found O’Faircheallaigh’s argument broadly persuasive, and agree that the introduction of FPIC rights for Indigenous interests would ensure faster and more certain outcomes in relation to proposed resource developments, including critical minerals.

O’Faircheallaigh largely justified his position on ethical grounds, without specifying the precise set of arguments he uses to justify that approach. I too agree that such ethical grounds exist and should be more widely recognised. I would base my arguments on the injustice involved in dispossession by settler states, the concomitant absence of comprehensive compensation, and the intergenerational costs imposed by the violence used to dispossess Indigenous landowners. Yet such arguments are far from widely accepted in Australia and elsewhere, and gain very little electoral traction.

There are however also a set of economic efficiency arguments that also point to the benefits of more explicit specification of property rights as an enabler of economic development and a facilitator of more efficient negotiations over particular developments. While a focus on working towards ‘just outcomes’ based on the existence of UNDRIP or other human rights instruments is intuitively appealing, it is rarely sufficient to persuade policymakers (and electorates) to shift direction. I have a sense that arguing the case on economic efficiency grounds would have a better chance of success as it engages with policymakers in the language they use themselves.

Even so, I am skeptical that policymakers in Australia (or elsewhere ) are about to shift direction and grant Indigenous landowners FPIC rights. In Australia, there has been no jurisdiction prepared to grant Indigenous interests FPIC in land related legislation since the enactment of the 1976 NT Land Rights Act. Under the Commonwealth’s 1993 Native Title Act, there are only procedural rights available to native title owners and claimants. Governments have not even been prepared to provide core funding to all Prescribed Bodies Corporate notwithstanding their statutory basis and their role in dealing with third party applications to access native title land.

The reason for this policy conservatism boils down to the fact that public policy outcomes in Australia are ultimately not a matter of what is most effective, or efficient, or what is in the public interest, but is determined by a complex interplay of implicit interest group negotiations seeking to influence government decisions. In those implicit negotiations, the onus is on those proposing change to overcome the significant inertial power of those interests benefiting from the status quo. Moreover, the very structures of government have been shaped and influenced over time by the most powerful interest groups which ensure that policy decision processes are weighted against those interests seeking to shift the status quo.  

I had one caveat regarding O’Faircheallaigh’s argument. I too have noted that Indigenous interests both globally and in Australia appear to have gained greater traction in slowing or preventing resource developments that they consider culturally threatening. In Australia, this is largely a result of the procedural rights embedded within the Native Title Act, environmental legislation,  and cultural heritage legislation. Yet while media reports of Indigenous successes are relatively common, I have yet to see any comprehensive data that either supports or refutes this proposition. Intuitively, one element in support of the O’Faircheallaigh proposition is the rise of ESG (link here) as a driver of corporate policies, a shift that is largely being driven from outside of the Indigenous policy domain. This suggests to me that there is an implicit potential for stronger alliances between Indigenous and environmental interests. Yet there is a long (and ongoing ) structural tension between these two sets of interests.

Given this context, the introduction of FPIC for Indigenous landowners in the near future might be characterised as a ‘first best’ solution, but one that is unlikely to eventuate anytime soon. The challenge then for Indigenous interests, academic commentators, and even policymakers (given the fact that lose/lose outcomes are a distinct possibility) is to find ‘second best’ solutions while keeping open the possibility of eventually moving to the ‘first best’ solution.

I don’t have a developed view on what the optimal second best solution matrix looks like, but it does strike me that an ongoing focus on achieving ‘just outcomes’, while important, needs to be supplemented by a stronger dose of pragmatically seeking merely better solutions. If Professor O’Faircheallaigh is correct, and we are looking down the barrel of lose/lose outcomes in the nation’s access to critical minerals and where Indigenous interests who seek to protect their cultural and socio-economic interests will be blamed for delaying the transition to renewables and net zero, there are even stronger grounds for Indigenous interests to proactively position themselves as pragmatic and constructive interlocutors.

My own approach to a ‘second best’ policy matrix would place a stronger focus on:  

• building the capability and intellectual capital (link here) of key Indigenous advocacy organisations so as to both protect existing rights and expand their institutional influence over future public policy decisons;

 

• building the independence of key Indigenous advocacy groups by exploring opportunities for reducing their reliance and use of funding and other mechanisms used by governments to leverage and shape Indigenous policy advocacy;

 

• building alliances and partnerships with like-minded interests (such as environmental interests, public interest advocacy interests, and philanthropies); and

 

• committing to supporting transparency reforms generally so as to place greater pressure on the existing interests who shape and protect the status quo.

Of course, the shape and detail of any second best strategy aimed at greater influence over the coming scale up in resource development is for Indigenous interests to determine and implement. As climate change worsens, the determination of governments to respond will ramp up, and this will inevitably shift the balance of power towards those interests arguing for removing ostensible impediments to rapid mining development. The time for Indigenous interests to devise their own strategic responses to the coming changes is now.

 08 October 2023

 

 Addendum: Here is the link to Professor O'Faircheallaigh's seminar (link here).

12 October 2023