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

 

 

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

 

Financialisaton of nature repair: visionary innovation or short-sighted chimera?

 

See, sons, what things you are

How quickly nature falls into revolt

When gold becomes her object.

2 Henry IV, Act 4, scene 5

 

The Commonwealth Government is pushing ahead with its proposal to establish a market for what it terms ‘nature repair’. The Environment Department website has a page devoted to the Nature Repair Market Exposure Draft of proposed legislation (link here). The Department invited comment and submissions, but this process will close within a week on 24 February. It is not clear if they will publish the submissions they receive. I hope they will so as to transparently air the breadth of issues raised.

 

The Department states:

We are developing a nature repair market to encourage investment in biodiversity and drive environmental improvements across Australia.

Companies are looking at ways to achieve positive outcomes for nature through their investments but a national framework to facilitate that investment is not yet in place.

The market will be underpinned by legislation – the Nature Repair Market Bill (the Bill). This will enable landholders who protect, manage or restore local habitat and to receive biodiversity certificates which can then be sold to other parties. It will ensure the integrity of biodiversity certificates so the market can invest with confidence.

 

The Department’s web page includes links to the draft legislation, and to a series of fact sheets, including a Fact Sheet providing an overview of the proposal (link here) and a Fact Sheet titled Supporting the participation of First Nations people (link here). Key issues addressed (very briefly) include how Indigenous landowners can participate in the market, how they can be involved in market design, and how their rights and interests will be protected.

 

The Guardian recently reported on a number of concerns regarding the proposals from academics and others involved in conservation policy (link here).

 

Like any ambitious policy proposal, there are persuasive arguments in favour and against. This post does not attempt to lay out comprehensively the arguments for and against, and at this point in time, I do not feel qualified to express a definitive view on the merits of the proposal nor the draft legislation. Rather, what I am seeking to do here is provide a provisional introduction to the issue, aimed primarily at persuading readers that this is an issue that requires more attention than it has received to date.

 

It is clear however that this is a policy initiative with significant potential implications for Indigenous interests, and for the management of the Indigenous estate that encompasses around half the continental landmass, and will likely grow to above 60 percent as outstanding native title applications are determined. Whatever the merits of the scheme overall, its impact on Indigenous interests and lands will need close attention both by Indigenous advocates and government policymakers. Of course, the two issues are closely related. If the scheme is flawed or ineffective, and particularly if the regulatory arrangements are not robust enough to ensure that the market operates effectively, then the likelihood is that it will adversely and significantly impact Indigenous interests and landowners given the size of the Indigenous estate.

 

Underpinning the Government’s policy approach is an explicit assumption, laid out in a speech by Environment Minister Plibersek in July 2022 (link here) that the task of preventing landscape degradation (a subset of environmental repair and protection) is beyond the financial capacity of governments. The Minister stated there that ‘The scale of this challenge means that governments can’t do the job alone’.

 

This assumption is problematic on two grounds: the financial challenge is one of priorities, not quantum; and over time the quantum is shaped and determined by policies. I am sure that this is an issue that will be the focus of further research and debate as the proposed legislation progresses. The fundamental rationale for seeking to establish a market that essentially seeks to financialise the natural estate and the task of nature repair is in my view not yet beyond question.

 

There seem to me to be two high level general risks that will need careful management and proactive mitigation. Both of these risks could have a range of sui generis implications for Indigenous landowners.

 

The first risk is the issue raised in the Guardian article mentioned above, namely that the scheme might become a disguised offset scheme which facilitates biodiversity destruction by in effect paying landowners elsewhere to undertake projects aimed at biodiversity maintenance or repair. Without robust regulation, such an outcome might quickly lead to net reductions in biodiversity repair (particularly in sensitive contexts with competing commercial and biodiversity values).  

 

The second general risk is that the transactions costs (both tangible and intangible) associated with the proposed market effectively outweigh the substantive values of the biodiversity certificates at the core of the market. To take just one example, the administrative burdens of compliance for landowners, and of regulatory oversight for governments could be huge. Yet robust regulation is crucial to the schemes success. Excessive transactions costs will lead to market failure of various kinds and thus to counterproductive outcomes.

 

There are also (at least) two risks that particularly relate to the Indigenous policy sector.

 

The first risk is the potential for governments to effectively hide behind the existence of this market to justify limiting both expected future and existing government funding for biodiversity repair. Indigenous landowners are much more reliant on government funding than mainstream landowners as they are less engaged in commercial activities on their lands, so this risk, if it emerges, will impact them more seriously than mainstream interests.

 

Second, I note that in the almost thirty years since the passage of the Native Title Act, no Federal Government has been prepared to establish a comprehensive and adequate funding scheme to support the operations of Prescribed Bodies Corporate (PBCs), the corporate bodies that are mandated by the Native Title Act to hold native title on behalf of native titleholders. These are the organisations, mandated by legislation, that will be key decisionmakers in the proposed biodiversity market. The second risk is that financially constrained Indigenous landowners will not have access to the requisite professional skills and advice to ensure that they obtain a commercial return on the biodiversity certificates they sell.

 

I have published posts raising the issue of inadequate PBC funding previously, including the two most recent at the following links (link here and link here).  The second of these links involved litigation where the Judge was critical of the lack of funding allocated to supporting native title holders. It is a longstanding issue, yet governments are stubbornly intransigent when it comes to addressing it.

 

There are around 250 PBCs in existence (link here). There is limited funding available for PBCs for ‘Basic Support’ which averages around $50k to $80k per PBC. If you do the math, this sums to less than $20m per annum nationally. There is also a capacity building program that totals around $12m per annum. See the National Indigenous Australians Agency (NIAA) webpage (link here) for more details. The bottom line is that Government funding for PBCs that are involved in land management for almost half the nation’s land mass totals $32m per annum. Given the present inadequate funding levels, there must be serious doubts regarding the financial and administrative capability of PBCs to undertake the administrative and policy decision-making workloads associated with the proposed new ‘nature repair’ market arrangements.

 

Finally, it would be remiss not to mention the Commonwealth’s ongoing support and commitment to funding a highly successful network of ranger groups across the Indigenous estate. The NIAA website (link here) indicates that current funding amounts to $746m over seven years to 2028, that is just under $110m per annum nationally to fund between 80 and 100 ranger groups. The NIAA also reports that there are 2100 full time, part time and casual jobs created by the ranger funding program. There is also a very useful map (link here) indicating the location of Indigenous Protected Areas and funded ranger activities nationally. In her speech last year delivering the 2021 State of the Environment Report (link here), Minister Plibersek committed to doubling the number of Indigenous rangers to 3800 by the end of the decade, and to increasing funding to Indigenous Protected Areas. Clearly, the existence of this funded network will facilitate the implementation of biodiversity projects into the future on Indigenous land.

 

What is not clear, at least to me, is whether this expanding national Indigenous Ranger workforce has the depth of experience and expertise to undertake new biodiversity projects funded by the market without being diverted away for existing projects. The concept of a new nature repair market builds upon an established and well entrenched institutional infrastructure of commercial businesses with access to professional advice, finance and technology. It is not clear that this level of institutional depth and intellectual capital exists yet across the 80 plus Indigenous ranger groups. As part of any implementation strategy for the proposed new nature repair scheme, there may well be a case for governments to fund a ten year institutional strengthening project across the existing (and future) ranger network aimed at reducing the risk that capability shortfalls will inhibit take-up or successful implementation of market funded additional biodiversity repair projects on the Indigenous estate.

 

To sum up, the Government’s proposed Nature Repair Market legislation has immense potential implications for Indigenous interests and landowners. These include undoubted financial benefits, but also the potential for serious risks and disadvantage to emerge affecting both the environment and the financial viability of Indigenous organisations. It is just one of the numerous issues currently competing for attention across the Indigenous policy domain. In my view, the policy implications and in particular the potential risks for Indigenous interests deserve greater attention than they appear to have received to date from policymakers.

 

I thank Professor Jon Altman for drawing my attention to the Government’s proposals.

Native title: recent developments and ongoing challenges

A media release from WA Treasurer and Indigenous Affairs Minister Ben Wyatt, dated 27 September 2019, reports on yet another positive milestone in the resolution of outstanding native title claims across Australia (link here)

Below is a short extract from the media release:

Comprehensive Native Settlement over Geraldton and the Mid-West

In-principle agreement for a native title settlement over Geraldton and the Mid-West announced

Benefits will support Aboriginal economic advancement

The McGowan Government and the Traditional Owner Negotiating Team, representing native title claims in the Mid-West, have reached in-principle agreement for a comprehensive native title settlement over 48,000 square kilometres of land in the region, including Geraldton.

The native title claims are the Yamatji Nation, Southern Yamatji, Hutt River, Mullewa Wadjari and Widi Mob claims.

The agreement focusses on Aboriginal empowerment and recognition and includes a broad range of benefits. It was the vision of the Traditional Owner Negotiation Team to arrive at a settlement that would build a sustainable economic foundation for the traditional owners, ensuring their active participation in the regional economy, today and into the future.

Details of the benefits package remain confidential while the matter is in Federal Court mediation.

Having reached in-principle agreement, consultation and authorisation meetings will be held to seek authorisation from all the native title claim groups about the proposed settlement.

If authorised, the Indigenous Land Use Agreement will be submitted to the National Native Title Tribunal for registration.

Meanwhile, the native title claim groups will also be seeking a consent determination of Native Title in the Federal Court.

While there are still a number of steps required to finally resolve this matter, a key policy takeout is to point to the increasing momentum for regional settlements of outstanding native title claims.

Notwithstanding the steady incremental progress in the native title system being made both in WA and across other jurisdictions, a number of key structural challenges continue to confront native title holders. I have addressed a number of these in two CAEPR Discussion Papers (DP292 & DP294) available on the CAEPR website (link here). However, it is worth reiterating just one that requires urgent attention by policymakers in Canberra.

Once determined, native title is held by a corporate entity known as a Prescribed Body Corporate or PBC. These bodies take on a range of landowner responsibilities (generally responsibilities that were previously with the Crown). Yet funding for PBCs is minimal.

According to the NIAA website:

Prescribed Bodies Corporate hold, manage and protect native title on behalf of native title holders. The Australian Government assists these bodies to maximise the social, cultural and economic potential of native title through a new grant funding process (see Grants below)…

… PBC capacity building funding

The Department is now inviting eligible applicants to apply for PBC capacity building grant funding under the Indigenous Advancement Strategy.

The NIAA website also indicates (link here) that in 2016, PMC invited submissions on a PBC support strategy:

The Department is developing a Prescribed Bodies Corporate (PBC) Support Strategy to ensure that native title corporations are supported in an effective way.  The Department has prepared a consultation paper and is seeking feedback by email or mail by 2 December 2016.

It is not clear what if anything came of this process. Certainly, a search on the NIAA website suggests nothing beyond a submission driven capacity building program of unspecified quantum is available to PBCs.

With native title determinations covering over 30 percent of the continental land mass, this is an entirely inadequate allocation.

It is past time that the Commonwealth stepped up and began to seriously support native title holders in managing their lands. There is already a strong case for a stronger focus on supporting PBCs. This is especially the case for those PBCs that do not have access to landuse-related payments. The level of need will only rise as existing PBCs grow in confidence and new PBCs come into existence as a result of developments such as we are seeing in Western Australia’s mid-west.  

As an aside, it is also time for a major overhaul of the NIAA website to improve accessibility and the logical ordering of information. It is disrespectful to citizens and particularly First Nations peoples when basic information is effectively hidden by a poorly organised website.