A New Year: Looking back and forward

We know what we are, but we know not what we may be.

Hamlet IV,v,43  

Twenty Five Years On

The National Archives have released the Cabinet Papers for 1992 and 1993 which deal with, among other things, the Keating Government’s response to the High Court decision in Mabo v Queensland(No.2).

The Mabo related Cabinet Papers are interesting for a number of reasons, not least that they deal with issues of ongoing significance for the Indigenous policy domain.

I don’t propose to summarise or analyse the papers in detail, but will merely point to some of the issues raised therein. Each of the sets of papers is worth reading.

The first set of papers relates to the initial options for response following the High Court decision (Submission – Mabo decision – policy options – Decision 1250). The second set relates to the worked up policy proposals (Submission - The Mabo Decision - principles for a response – Decision 1740). The third set relates to the implications for title certainty arising from the initiation of the Wik litigation (Memorandum - The Wik claim - options for Commonwealth action – Decisions 2210 (Amended) and 2216). The fourth set relates to the proposals for a social justice package, and in particular a Land Fund to compensate those Indigenous people whose native title had either been extinguished in the past, or whose native title would have been available except that the proposed legislation would validate purported extinguishment (Memorandum - Mabo - social justice and economic development package – Decision – 2290). The fifth set relates to the negotiations with the states over the draft legislation (Memorandum - Mabo - responses to the outline of legislation – update – Decision 2289 and 2291; Memorandum – Mabo – response to the outline of legislation – further update – No Decision).

Themes which emerge from these papers include

• ·       The complexity of the negotiations involving eight states and territories, the business sector (particularly the mining sector and the pastoral sector), the Indigenous community, and partisan political management.
• ·        The centrality of the Racial Discrimination Act to both the decision itself, and the development of policy options;
• ·        The policy imperative for government of title certainty;
• ·        The complexity of the compromise or ‘settlement’ reached across all interest groups including eventually the Indigenous negotiators; and
• ·        The centrality of the proposed land fund to achieving a modicum of social justice, and the lack of progress on other issues (such as constitutional recognition) identified as potentially the second part of the proposed social justice package.

The Cabinet papers don’t provide the full picture. There was a huge amount of day to day policy development, much of it infused with uncertainty given the unprecedented nature of the High Court’s decision, the sui generis nature of native title, the lack of clarity in relation to the extent that Indigenous interests would be able to demonstrate the ongoing attachment to country required to prove the existence of native title, and the related information gaps as to the extent and nature of prior extinguishment by governments. Nevertheless, the Cabinet papers represent key markers in the second stage of development of Australia’s native title law (the first being the litigation stage leading to the High Court decision).

Key issues embedded in these Cabinet papers include the negotiations with the states and territories; the validation of existing titles including the extent to which the Racial Discrimination Act should be set aside to facilitate validation, the development of options for a policy quid pro quo for Indigenous interests adversely affected by the validation issue; and the complex issues relating to he potential for the Commonwealth to underwrite any future compensation payments which the states and territories might be required to pay.

The decision to validate all titles granted since the enactment of the Racial Discrimination Act which were potentially affected by native title led to the further dispossession of Indigenous Australians, and necessitated the legislative provision of ‘just terms’ compensation to ensure the constitutional validity of the provisions, thus adding further potential uncertainty. Issues related to compensation for extinguishment of native title are only now beginning to emerge into the legal and public policy domain. See my previous blog post (‘Handy dandy: native title and compensation for extinguishment’) here.

Particularly interesting issues with continuing relevance relate to the establishment of the Land Fund which was not legislated till 1995, so the Cabinet Papers released are not the full story. But they do expose for the first time the significant internal struggle and challenges which confronted the proposal.

On one side, the Department of Finance saw no reason to expend anything significant in making amends to Indigenous citizens whose native title had been extinguished by governments since colonisation. On the other side, the then ATSIC Commissioners wished to control the Land Fund, and opposed the established of the mechanism which eventually became the Indigenous Land Corporation. PMC argued forcefully that the Land Fund was not an instrument for promoting economic and commercial development, but was broader and needed to reflect a capacity to support cultural and social needs, particularly if it was to be seen as compensation. PMC also envisaged that its Board would be selected by the then ATSIC (that is, it would largely be Indigenous controlled, not government controlled); this aspiration fell by the way side with the expiration of ATSIC.

These issues have been reprised in the current Minister’s attempt when he initially came to office to amalgamate the ILC with IBA, and the ongoing (and unpublicised) actions to effect a non-legislated amalgamation of the two bodies’ back offices inevitably as a precursor to formal amalgamation. The very real (and under-appreciated) risk for Indigenous interests is that the mechanism established to provide a perpetual source of compensatory revenue independent of government budget constraints will be subverted and redirected to taking the pressure of the budget under the guise of being refocussed on economic and commercial development.

A further issue which is not really evident from the Cabinet papers (albeit that it infused them all) was the huge political campaign mounted against the Government essentially based around stoking fears about threats to ordinary Australians backyards. While in retrospect it can appear that the emergence of the Native Title Act was inevitable, the reality is that the Government led by Prime Minister Keating demonstrated extraordinary political leadership and courage to stay the course. Alternative approaches would have been extremely messy from both legal and political perspectives, and would have undoubtedly led to Australia being a very different sort of nation today, less liberal, less fair, and more discriminatory.

With the perspective of twenty five years, while native title has been found to exist over substantial areas of the continent, very real questions continue to exist in relation to the justice for Indigenous interests of the ‘grand bargain’ struck at the time. The fact that the second part of the mooted social justice package never emerged only reinforces that assessment. Mainstream Australia has pocketed the gains inherent in the settlement, and moved on. The impacts of dispossession for Indigenous interests however are ongoing.

On balance, native title has been a positive for Indigenous interests, and for the nation, but it does not follow that it was a just outcome. This is the underlying rationale for the continued vibrancy of calls for recognition and treaties emanating from Indigenous citizens.

The Year Ahead

Looking forward, what are the prospects for 2017 in the Indigenous policy domain?

I am conscious of Danish physicist Niels Bohr’s oft cited warning: ‘Prediction is very difficult, especially about the future’. Moreover, I have a record of past predictive failures which won’t surprise careful readers of this blog. Nevertheless, there seem to be some general statements worth canvassing. My approach here is to attempt to put myself in Prime Minister Turnbull’s shoes, so I am not necessarily personally advocating the merits of the following suggestions (even though I think they would be improvements on the status quo).

First, I would move to establish Indigenous affairs as a standalone agency, probably still within the Prime Minister’s portfolio. This would also allow a restructuring of the Prime Ministers Indigenous Advisory Council (which doesn’t appear to have made a substantial contribution to the policy process).

Second, I would take the opportunity at the next reshuffle to promote Ken Wyatt to Cabinet as Minister for Indigenous Affairs. Wyatt has a background in Indigenous health, and would be a useful counter to the three Labor Indigenous MPs.

Third I would initiate a significant internal process to develop the broad outlines of a response to the NT Royal Commission on Youth Detention. There are two broad options available to the Government: one is to drive substantive policy reforms which address incarceration over-representation; the second is to throw money at the issue. I suspect the second will be easier than the first, though not necessarily more effective.

Fourth, I would develop a strategy for bringing some level of resolution to the apparently never ending Constitutional Recognition process. The options are (i) to bring the process to an end; (ii) to kick the can down the road for another year or two or three; or (iii) to propose a minimalist constitutional amendment which while not meeting the aspirations of Indigenous interests, is at least a step forward. If combined with a policy package which established Commonwealth policy position which was supportive of state based efforts to negotiate local treaties, this might fly. I think some version of the third option will emerge.

Fifth, I would task the Minister for Indigenous affairs with sorting out the expanding disaster in the Community Development Program which is breaching increasing numbers of remote residents. Reality denial as a policy strategy works only for limited periods.

Sixth, I would bring greater transparency to the Indigenous Advancement Strategy. One of the rationales for ATSIC’s establishment was to move away from Ministers as the super project officer, doling out grants to favourites, cutting out those who are out of favour. Unfortunately, we appear to have turned full circle.  I understand that there is an ANAO audit underway. It will be amazing if it doesn’t recommend a major overhaul of the IAS. It would be better to be on the front foot.

Seventh, if I was feeling particularly innovative and agile, I would move to establish something a series of regional forums which provide inclusive opportunities for the breadth of Indigenous voices to be heard, and to play a part in regional policy priority setting. This might be built on an expanded and reinvigorated version of the Empowered Communities framework which appears to be largely moribund at present.

Eighth, I would re-establish a formal mechanism to engage with state and territory governments. There appears to be little effort at present to coordinate in a coherent way federal priorities with state and territory policy efforts.

Whether my prognostications are on the money or not, the policy issues and political challenges embedded in the eight suggestions above are significant enough to ensure that 2017 will be an interesting year in the Indigenous policy domain.

Disclosure: I worked for the Department of Prime Minister and Cabinet during the Keating Government era, and worked for the Indigenous Land Corporation from2013 to 2015.