A
greater power than we can contradict
Hath
thwarted our intents.
Romeo and Juliet, Act five, Scene three
A New York Times
article dated 12 June (link
here) reports on developments in the US in the Columbia River basin in the Northwest
USA, where native American tribes entered into 15 legally binding treaties in
the 19th Century. The legal and policy issues, which will now re-enter
the political realm, involve a conflict between competing principles: Native
American treaty rights, the commercial viability of existing renewable energy
infrastructure, and the basin wide threats to the viability of native fish species.
The NYT article
began as follows:
Trump Withdraws From Agreement With Tribes to Protect
Salmon
The
Biden administration had brokered a 10-year truce in an extended legal battle
with Native American tribes in the Pacific Northwest over dams that had
prevented fish from spawning.
President
Trump moved on Thursday to withdraw from a Biden administration agreement that
had brokered a truce in a decades-long legal battle with tribes in the Pacific
Northwest.
The
federal government has been mired in
legal battles for decades over the depletion of fish populations in
the Columbia River Basin, caused by four hydroelectric dams in the lower Snake
River. Native American tribes have argued in court that the federal government
has violated longstanding treaties by failing to protect the salmon and other
fish that have been prevented by the dams from spawning upstream of the river.
That legal fight is now expected to resume, with no brokered agreement in
place.
The article
reports comments of various interests, including the following statement by Gerald
Lewis, the chairman of the tribal council of the Yakama Nation, who was reported
as stating (inter alia) that his tribe was “deeply disappointed” by the
decision, and that:
The
administration’s decision to terminate these commitments echoes the federal
government’s historic pattern of broken promises to tribes, …
I don’t propose
to consider the merits of the competing issues in play, not least because I have
not been following the issue and recognise that there are undoubtedly myriad
complexities involved. Instead, I propose to consider some higher order issues.
The issue in
the Pacific Northwest does however resonate with the ongoing and longstanding legal,
policy and political conflicts between Indigenous rights and economic development
here in Australia. Issues such as the destruction of Juukan Gorge by Rio Tinto,
and the past and possibly ongoing destruction of Aboriginal heritage at Murujuga
adjacent to the Woodside’s North West Shelf developments make clear that we here
in Australia are not exempt from these types of conflicts.
What then is
the best way for First Nations to protect their interests, whether cultural, social or economic
in the face of the reality that these conflicts are inevitable and will persist
into the decades ahead?
Might Constitutional
reform be the answer? In
theory, one might envisage a reform that privileged Indigenous rights over development.
However, such a reform faces what I would assess as insurmountable political
difficulties (as well as myriad legal and conceptual difficulties) and will
never be a serious option. The recent experience with the Voice which was a
much weaker proposal, merely providing First Nations and Indigenous citizens with
a constitutionally guaranteed forum in which to express their views on issues affecting
their interests indicates the difficulties First Nations face in using the Constitution
as the mechanism to protect their interests writ large.
Might a
Treaty or treaties be the answer?
The notion that formal agreements will provide the leverage to protect First Nations
interests from the ongoing avalanche of modernity and its concomitant
developmentalism is in my view a chimera. Treaties are agreements between parties
and in the case of Australia, those parties, whether at regional or national
scales, are characterised by extraordinarily unequal bargaining strength. Even
were mainstream Australia to agree to enter into bona fide negotiations (a
prospect I consider highly unlikely) the likelihood that comprehensive
settlements might be devised and constructed that are simultaneously able to
protect Indigenous interests and acceptable within the framework of mainstream
politics is in my view close to zero. Even were we to overcome that hurdle, the
risks of the dominant society hollowing out and obfuscating their engagement
with treaties that had been agreed to, co-opting key players, and ultimately just
walking away and ignoring their treaty obligations are considerable.
Given that discussion
of treaties is ubiquitous amongst Indigenous advocates, it is somewhat curious
that no widely accepted statement of claim exists that lays out the specific institutional
and policy reforms sought. The 2017 Uluru Statement (link here)
perhaps comes closest to doing this, but a close reading make clear that in
relation to treaties and agreement making, it proposes that governments establish
a process, the establishment of a Makarrata Commission, to oversight the development
and implementation of a specific agenda to be included in a treaty or treaties.
Clearly, there
is a place for agreements in shaping and improving the public domain, but they
work best when the parties have an incentive to engage, and there are mutual benefits
from making the agreement. Resolving land tenure uncertainties is a case in
point. This suggests that narrow issues-based agreements are more likely to be
both feasible and successful.
The problem with
agreements of any type is that once the initial mutual benefits disappear, the
parties have an incentive to walk away. The US experience with Treaties (as evidenced
in the NYT article cited above), is one of government parties seeking to walk
away from their previous commitments when circumstances changed. Here in Australia,
First Nations leaders and advocates would be wise to take heed of the structural
incentives that underpin Treaties and consider closely the experience of native
Americans in the US when advocating for and entering into treaties and or agreements
that are designed to protect their long-term interests.
If neither constitutional
reform nor Treaties are the way forward for protecting and advancing First Nations
interests writ large, what might be the way forward?
The obvious
area where Indigenous interests should focus to enhance their ability to both
protect their interests (whether cultural, social or economic) is in building
their capacity and capability to advocate in support of their interests. The
key prerequisites of political and policy influence include the establishment and
employment of a critical mass of committed and technical specialists across
each of the major sectors where Indigenous interests seek to exert influence.
While almost all political debate in Australia is based on the gross simplification
of the issues being discussed, the wider community (and the media) do not appreciate
that the technical details of policy design and implementation are crucial to
shaping the outcomes that emerge from those debates.
Political rhetoric
and advocacy untethered from detailed policy analysis is a recipe for failure
to influence outcomes. For Indigenous interests, establishing the infrastructure
for engaging effectively on policy detail requires the building of a network of
financially and politically independent organisations and perhaps the establishment
of a loose federation or federations to ensure there is organisational heft to
address national and state-wide issues.
The view that a
single organisational entity can or should represent the diversity of Indigenous
interests across the nation is misguided, but there is a strong imperative for
the establishment of strong informal links across the key national and state-based
organisations.
Much of the institutional
architecture I have just described is already in place, although the strength
of the formal and informal networks essential to building the intellectual
capital necessary to exert influence effectively is under-developed. There is also
a paucity of policy and technical depth and an under-acknowledged and misguided
over-reliance on finding ways to extract funding from governments which creates
both dependence and implicitly constrains what organisations are prepared to do
and say in public.
Governments and
major mainstream interests have a long history of seeking to co-opt individuals
who have the potential to emerge as effective independent advocates. Engaging in private discussions is a favoured
tactic of governments as it precludes critical commentary and the exploration of
more wide-ranging options. Secrecy is the preferred modus operandi of governments
and powerful interest groups as it allows deals to be done without scrutiny and
accompanying pressure. For less powerful interests (such as those representing
the most disadvantaged elements of society), transparency and openness is a friend
and not an enemy. In my view, there is a pressing need for the Indigenous
leadership to engage more openly in public debate and discussion on policy
options, including mainstream policy options, and they can only do this effectively
if they are not constrained by threats of funding cuts, or signed up to confidentiality
agreements imposed as the price of access to government deliberative processes.
Implicit in
this vision is a strategy of gradual accretion of policy and political influence
in the same way that the Minerals Council or the National Farmers Federation have
long exerted influence. The most effective mainstream interest group peak
bodies are not reliant on government funding. Achieving greater influence will require
a broad commitment which looks beyond reliance on individual aspirations,
ambitions, talent and abilities (important as these are) and which is focussed
on building a stable, well governed, independently funded and strategically
focussed organisational base. Such a base would necessarily comprise a network
of independent organisations and coalitions.
Governments
have a history of abolishing successful or difficult Indigenous organisations established
to provide representative feedback. Self determination is not something that governments
will grant or deliver to Indigenous interests; it is something that First Nations
must build, maintain, develop and sustain for themselves. There is already a
good foundation for implementing such a strategy, but to go to the next level,
a changed mindset across the breadth of the First Nations leadership regarding the
relationship of Indigenous interests and governments will be necessary.
The best way
for First Nations to protect and advance their cultural, social and economic interests is to build an independent and professional
advocacy capability (both technical and organisational) and to progressively engage
more proactively on mainstream as well as Indigenous specific issues at both
national and state / territory levels. While I have focussed here on improved
advocacy capability, it is also the case that while it is necessary, it is not
sufficient to guarantee stronger influence across the policy domains impacting First
Nations.
Developing the organisational
capability to multiply policy and political influence is just the first step. Indigenous
interests must also develop an effective strategic framework and underpinning strategies
which counter government tactics of promising the world and delivering little.
Such a framework would need, as an essential element, the building of broad
support across the leadership of First Nations interests. It would engage simultaneously with macro
issues of national significance and with the micro issues of policy design and implementation.
It would also consider not just the merits of courses of action, but the
opportunity costs of doing so: a decision to focus on one issue inevitably
draws oxygen and energy away from others.
An effective
strategic framework will not emerge instantaneously but will develop
organically if the Indigenous leadership commits to the first step, building a
robust and cohesive independent capability to influence governments and to counter
the influence of those interests with antithetical agendas towards full Indigenous
inclusion in Australia’s political and public policy domain.
15 June 2025
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