Protecting and advancing Indigenous interests: the way forward

 

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 19^th 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

 

 

Election 2022: policy implications in the Indigenous policy domain.

 

Defer no time, delays have dangerous ends

1 Henry IV, Act 3, scene 2.

 

This post is designed to explore a number of the most salient policy implications for Indigenous policy arising from the results of the 2022 election.

 

In his victory speech last night, Anthony Albanese made two significant points. He emphasised the incoming Government’s commitment to implementing the Uluru Statement, and explicitly mentioned Labor’s intention to entrench it in the Constitution. Second he identified Linda Burney as the incoming Indigenous Affairs Minister. Prior to the election, Burney was Shadow Minister for Families and Social Services, as well as Shadow Minister for Indigenous Australians. We can assume she will likely be given both posts, which is an extraordinarily heavy workload. If so, it seems likely (but not certain) that Senator Patrick Dodson would take on his former shadow roles as Assistant Minister for Reconciliation and Assistant Minister for Constitutional Recognition of Indigenous Australians.

 

The former Minister Ken Wyatt lost his seat of Hasluck with a swing against him of over 10 percent; a swing consistent with the overall swing against the former Government in WA. This will mean that the Opposition will need to choose a new Shadow Minister who is unlikely to be Indigenous and will not have the benefit of the networks and knowledge of the issues that Wyatt built over his career and as Minister. Somewhat paradoxically, in my view this increases the likelihood that the Opposition will adopt a much more antagonistic and aggressive approach to the Labor Government’s policies in this area since it is always easier to find flaws and seek to knock down a policy rather than find constructive ways to make it work. One of the dynamics that has been in play in recent years has been the propensity for Indigenous MPs on all sides to effectively pull their punches in relation to their opposite numbers.

 

As for Wyatt’s legacy, I struggle to identify major reforms or achievements. The National Agreement on Closing the Gap is potentially an extraordinary vehicle for addressing structural inequity between Indigenous and mainstream Australia, but the Commonwealth Implementation Plan and associated financial commitments have been entirely underwhelming. So too have been the Implementation Plans of the states and territories; yet the Commonwealth seems oblivious to their shortcomings. He continued the push on Indigenous procurement. This is perhaps the former Government’s most tangible success, although I worry that the levels of so-called ‘black cladding’ (link here) are much more significant than is generally realised. He dropped the ball on issues his predecessor prioritised (albeit more rhetorically than substantively) such as school attendance and high sugar drinks in remote stores; did virtually nothing to address the longstanding and worsening housing crisis in remote Australia; made no progress in making native title a more effective instrument for Indigenous economic and social development; and actively continued the Commonwealth retreat from Indigenous social policy across the board in favour of the states and territories. This record is a 180 degree turn from the expectations of the Australian people when they voted overwhelmingly to give the Commonwealth concurrent responsibilities with the states in relation to Aboriginal affairs in the 1967 Referendum.

 

On the Voice and constitutional recognition, Wyatt procrastinated and prevaricated, clearly lacking influence and backing within the Government at the most senior levels. It was only during the recent election campaign that the Prime Minister finally came clean, five long years after the Uluru Statement was delivered, and explicitly ruled out any intention of entrenching the Voice in the Constitution (link here).

 

For Labor, while the commitment to action on the Uluru Statement is welcome, there is an enormous amount of work to be done to build broad based momentum across the community and to design and sequence the detailed proposals. My view is that Labor would be wise to ‘ride the wave’ that brought it to government and push forward towards a referendum within six months. For an alternative view, see this article in The Conversation (link here). Designing the legislation for a Voice and establishing the proposed Makarrata Commission will not be straightforward, and will require detailed consultation and engagement with both First Nations and the wider community. While these processes do not need to be finalised before a referendum, the Government would be wise to have developed and published a clear outline of how it sees the Voice and the Makarrata Commission operating before the referendum takes place.

 

There will never be  a perfect or risk free time to take this issue forward to a referendum. Currently, there is a sense of hope and optimism in the community on these issues, and the fact that six of the states and territories have Labor Governments will mean that any state based opposition campaigns will have less legitimacy and more limited access to resources. Delay adds risk, both because the new Government’s policy agenda becomes more crowded and complex, and as it allows further time for opponents to organise.

 

Notwithstanding the strategic importance of a constitutionally recognised Voice to Parliament, the administration of the Indigenous Australians portfolio is about more than one issue.

 

Last week, on 18 May 2022, Mike Keating posted a short article on the Pearls and Irritations web site  (link here) pointing out the implications across the policy spectrum of the inevitable ongoing constraints on policy reform arising from the current mismatch between the Government’s underlying revenue base and the expenditure needs and expectations of the community. In particular, he laid out in the starkest terms the extraordinary magnitude and regressive nature of the most recent tax reforms proposed by the former Government and legislated with Labor support. His analysis is in my view absolutely correct. His proposed solution is for the Government to initiate a number of independent reviews to lay out the problem and develop a reform agenda acceptable to the community. He notes that this will take time and will delay the initiation of essential reforms (or worse still require the incremental unwinding of previous reforms such as the NDIS). This issue will impact every policy sector, but given the extent of Indigenous disadvantage and need, particularly in remote Australia, the consequences in the Indigenous policy space are likely to be dire. Mike Keatings rational logic is persuasive, but ignores the decades of policy exclusion meted out to Indigenous citizens. A determined Government would find a way through.

 

Nevertheless, having won a first term, the ‘hard heads’ within the new Labor Government will be focussed above all else on setting up the political strategy and narrative for the next election in around three years. This will involve a forensic focus on delivering their commitments, but also a strong push for fiscal discipline that will enable Labor to point to progress in clawing back the substantial deficit they have inherited. In this context, proposals for additional public investment will be rigorously scrutinised and those without a strong political rationale will likely be deferred or sidelined. Given the comparatively weak political influence of Indigenous interests, there is a strong likelihood that the new Government will focus primarily on delivering the Uluru Statement to the exclusion of other priorities across the Indigenous policy domain. Such an outcome would in my view be both a policy and political mistake. It would make the job of the yet to be established Voice to Parliament harder, decrease First Nations citizens already low  trust in governments, and exacerbate the negative economic, social and health outcomes that have enduring impacts on the life opportunities of so many First Nations citizens.

 

One lesson to be drawn from the experience of Minister Wyatt in the former Government is that an Indigenous Minister can be sidelined or ignored if he is unable to point to significant and sustained political pressure being applied. Ministers in every portfolio are always under incredible pressure to hold fast to the Government’s narrative, and Indigenous ministers are no exception. Indeed, there is an incentive for Prime Ministers and Governments to use Indigenous ministers as a protective heat shield against pressure from the Indigenous community, rather than as a portal to better engagement with First Nations. The fact that a Government has appointed an experienced and competent Indigenous leader as a Minister does not preclude the necessity for Indigenous interests to implement robust lobbying and advocacy on key issues.

 

In these circumstances, it is in my view incumbent on the national Indigenous leadership to work together to develop a five or ten year set of policy priorities that focus on multiple objectives simultaneously. Their chosen priorities should refine, prioritise and sequence core policy aspirations; extend beyond Indigenous specific policy and program measures to include mainstream measures that will benefit First Nations citizens; and identify structural changes that do not require substantial fiscal investments. Importantly, they should invest in strengthening Indigenous interests’ capability to exert coordinated political pressure in sustained and targeted ways across all jurisdictions of the federation.

 

The fracturing of the major parties primary votes, the emergence of a third force in the electorate comprised of green and teal voters, and the resultant changes to the composition of Parliament reinforces the importance of distinguishing between a Voice to Parliament and the need for Indigenous interests to also build a capability to lobby and influence governments at both national and state/territory levels. More succinctly: Governments are not Parliaments; yet both are crucial in policy advocacy. Neither a Voice to Parliament nor a Peak Body focussed on Governments will be entirely effective on its own, and ideally Indigenous advocacy in each forum will work off similar and broadly coordinated policy agendas.

 

The new Labor Government appears set on delivering the major and long overdue structural reforms laid out in the Uluru Statement for the Heart. These reforms will simultaneously deliver on the aspirations of First Nations and accrue significant benefits for the wider Australian community derived from more inclusive treatment of First Nations. However, in the Indigenous policy domain, the new Government faces numerous significant challenges ahead including addressing structural exclusion, income and wealth inequalities; disparities in health and housing opportunities; over-representation in the criminal justice system; extraordinary levels of out of home care for indigenous children; and extraordinarily low levels of educational outcomes (to name just some of the more pressing issues). The failure to effectively resource and implement the pathbreaking National Agreement on Closing the Gap and to make substantive progress to close the enormous social, economic and health disparities between Indigenous and mainstream citizens remains a weeping sore on our nation’s body politic.

 

Notwithstanding the commitments made to date by the new Government, it will need to find a way to widen its policy agenda and focus policy attention on the structural constraints impacting the most disadvantaged segments of the Australian community. The new Government will do a better job of delivering on First Nations aspirations if it is honest with the Indigenous and mainstream communities about the policy trade-offs it makes, focusses attention on implementation as well as policy rhetoric, and is pushed hard and held to account by Indigenous interests and their allies.

Addendum 23 May 2022

A reader has pointed to the possibility that incoming Senator Jacinta Price (link here) might be appointed Shadow Minister. On reflection, this seems a strong possibility. I also commend Jon Altman's comment on this post to readers.