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

 

 

US Supreme Court Justice Gorsuch and Native American policy

 

We must not make a scarecrow of the law, 
Setting it up to fear [frighten] the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.

Measure for Measure, Act 2 scene 1.

 

On the New Yorker web site (link here), Amy Davidson Sorkin has an insightful and thought provoking analysis of conservative US Supreme Court Justice Neil Gorsuch’s surprising perspective on Native American rights. Her article is worth reading not just for the profile of Justice Gorsuch and his jurisprudential record, but for the analysis of the US Supreme Court’s recent decision in Arizona v. Navajo Nation, and the alternative interpretations of the treaty commitments that were at the core of the arguments. As Davidson Sorkin writes:

The case involved the future division of the waters of the Colorado River—an issue of existential concern to millions of people across seven Western states, including a hundred and seventy thousand who live on the Navajo reservation.

 

Davidson Sorkin ends her profile by referencing Elie Mystal in an article from The Nation. Mystal who ‘after puzzling over Gorsuch’s lack of empathy for other groups’ wrote that ‘Gorsuch is the staunchest defender of tribal sovereignty and Native American rights perhaps in the history of the Supreme Court, and I choose to be thankful for that’. Mystal goes on to elaborate on the rationale for Gorsuch’s support of Indigenous rights, and the limits of that support, based on his view that native rights were recognised in the US Constitution. Mystal quotes Gorsuch’s dissent in a recent case to elucidate his thinking:

“Instead, the Constitution’s text—and two centuries of history and precedent—establish that Tribes enjoy a unique status in our law.” For Gorsuch, in other words, Tribal nations are uniquely protected by a constitutional promise (often ignored) that they will be left alone. 

 

I strongly recommend readers have a look at both these articles. Reading these two articles led me to think more about a few issues of significance in Australia, and how the experience in the US may provide lessons or comparative perspectives of use to both policymakers and First Nations.

 

The first issue is the importance of water rights to Indigenous peoples, its centrality to their cultural perspectives and being, and its increasing commercialisation by governments struggling to regulate usage of a scarce resource by mainstream commercial interests. The dilemma for Indigenous interests is that the most obvious pathway to greater access to water, and to the protections of water resources is to participate in its commercialisation. This may suit some Indigenous groups, but is unlikely to suit all Indigenous groups. There is a growing literature on Indigenous water rights in Australia which confirms the existence of a complex and diverse policy agenda. My sense however is that governments are yet to comprehensively and substantively address the policy opportunities and challenges embedded in this policy agenda (link here).

 

The second issue relates to the increasing focus emerging in Australian public discourse on Indigenous issues related to the importance and potential of negotiated treaties. I won’t attempt to summarise the myriad issues involved, but will instead make one simple point: the US experience (confirmed in Arizona v Navajo Nation) demonstrates beyond doubt that whatever their advantages and merits (and they are potentially considerable), the propensity for governments, and even the courts, to avoid, undermine and ignore even formal treaty commitments is an existential risk both to the rights that are sought to be protected by the treaties and to the treaties themselves. The best long term protection for Indigenous citizenship and other rights is to progressively build and sustain deep support in the wider community.

 

The third issue I was led to contemplate is the ongoing role of the judiciary in Australia in driving substantive policy reform, and in particular, the role of individual jurists who have an understanding of the complexity of the policy challenges facing both the nation and Indigenous citizens. To put it bluntly, it is arguable that the capabilities of governments to drive policy reform has been progressively diminished and depleted over recent decades, and perhaps as a result, the influence of the judiciary has expanded to fill the vacuum.

 

However, it is difficult to nominate a single Justice of the High Court who might be described in terms akin to those used about Justice Gorsuch as the staunchest defender of Indigenous rights in the history of the Court. In part, this is a result of a different legal culture, less overtly political, and more grounded in a culture of reasoned judicial impartiality (a feature which I am grateful for). Still, clearly a number of Justices have made enormous contributions: Chief Justice Gerard Brennan in his lead judgement on Mabo, Chief Justice Robert French in expanding the extent of native title rights to pastoral leases in Wik. Justice John Toohey was in the majority in Mabo and Wik, and perhaps more importantly, made a major contribution in his time as the first Aboriginal Land commissioner under the Aboriginal Land rights (Northern Territory) act 1976. Interestingly, each of these justices had serious involvement in Indigenous legal issues earlier in their careers.

 

Yet it is the dissenting contributions that have foreshadowed potential directions for the development of the law that stand out for me. Justice Toohey’s judgment in Mabo (supported by Justices Deane and Gaudron, but not by Justices Brennan, Mason and McHugh) argued for the existence of a fiduciary duty by the Crown. In 1997 in Newcrest Mining v The Commonwealth, Michael Kirby was one of the minority arguing that the 1969 case of Teori Tau (which held that the Commonwealth was not obligated to pay just terms for the acquisition of property in a Territory) should be over-ruled. In 2009, Wurridjal V Commonwealth finally overturned Teori Tau. In the 1996 case Hindmarsh Island Bridge Case, Kirby’s lone dissent argued that while the race power in section 51(26) of the Constitution  permitted special laws for people on the grounds of their race, it should not be read so as to discriminate adversely against such people on that ground. Unfortunately, Australia continues to this day to have a Constitution that allows the Parliament to make laws that adversely discriminate against the members of a race.

 

The fourth issue worth reflecting on in the comparison of the US and Australian legal systems is the shared preparedness of both systems to contextualise contemporary issues with detailed historical analysis and research. Clearly in the US context, Gorsuch is highly adept at weaving historical narratives into his reasoning. So too has the High Court in Australia been prepared to build its legal decision making on detailed historical analysis of the treatment of Indigenous citizens. This is also a feature of the land claim process under the Aboriginal Land Rights (Northern Territory) Act 1976, and under the Native Title Act 1993. As an aside, one might make a similar argument for the under-appreciated role of anthropology in these far reaching legal processes that are changing the institutional shape of the Australian nation.

 

One of the less well understood positive implications of land rights legislation and the Native Title Act has been their ongoing contribution to educating the judiciary and the supporting cohorts of legal functionaries of the complexity of intercultural engagement and the innate intelligence and functional integrity of Indigenous cultural practices. Australia is a better place for those ongoing processes.

 

28 June 2023