The Redfern Statement and the Challenges Ahead

Last week, the National Congress of Australia’s First Peoples auspiced the release of a pre-election policy agenda, the Redfern Statement, outlining a comprehensive policy agenda which Indigenous interests are asking political parties and the next Government to implement.

The Statement was compiled and released on behalf of 17 peak indigenous organisations, and had the support of some 29 mainstream NGO’s and advocacy groups. The Statement was released at a meeting of Indigenous leaders in Redfern and gained useful media coverage. (See here).

Interestingly, the Statement made no reference to land issues, and the main news story arising from the day related to a call for the next Government to establish a new Indigenous affairs agency separate from the Department of Prime Minister and Cabinet (see here). I wrote a previous post on this issue.

My own reaction to the Statement and its attendant media releases and coverage was mixed. I was extremely pleased to see Indigenous interests and in particular Congress articulating a range of important policy positions during the election campaign, and was heartened that effort was being made to jointly develop an overarching policy agenda which is the first step in forcing political parties and governments to take the issues raised seriously.

The Statement will be a useful benchmark in assessing the state of play on Indigenous affairs going forwards, and simultaneously offers a useful summary of the extent to which the Indigenous policy agenda has been ignored by the political system over the past five years. It also provides a tangible demonstration of the importance of building policy coalitions as a first step towards policy influence within a political system which is extremely crowded with multiple interests jostling for attention let alone influence, ruthlessly pragmatic and responds only to pressure and publicity.

My reservations are largely pragmatic in nature: I fear that the Statement and its embedded policy agenda will not be taken seriously and ultimately will sink into oblivion. The reasons for my pessimism include the singular focus of the electorate and political elites on the economy and major service delivery sectors such as health and education, the short attention span of the political news cycle, and marginal status of Indigenous issues in electoral terms.

In these circumstances, Indigenous interests need to present their case in a way which is crisp, focussed, and which cuts through. And they need to supplement their initial release with some follow up media which reinforces the key messages, and pressures the government and opposition to respond. While the virtual silence of both the Governmental and to a lesser extent the Opposition in response to the Redfern Statement is disappointing, the onus falls on Indigenous interests to do whatever it takes to challenge this implicit marginalisation.

It is worth noting how business goes about the same task. At virtually the same time as Indigenous groups released the Redfern Statement, the four most influential business peak bodies, the Business Council, the Australian Chamber of Commerce and Industry, the Australian Industry Group and the Minerals Council released a joint statement setting out their key policy ask heading into the election. IN contrast to the Indigenous statement, business focussed on one key issue, corporate taxation, and laid out a narrative which argued that more competitive corporate taxation leads to greater investment, economic growth, boosts to wages and increased national income. The Statement was published in the Australian Financial Review (AFR 9 June 2016 behind paywall), which also ran a complementary front page story under the headline “Business rebuts tax cut attacks”.

In contrast to the Indigenous approach, business have synthesised their message down to one key issue, corporate taxation. Their focus is on the arguments which support their position rather than a detailed description of the technical issues involved, and their stance is future oriented, not backward looking. The BCA website is clean, uncluttered, and takes the reader straight to the joint statement as one of three of four points of interest.

This comparison suggests that Indigenous interests, and in particular the National Congress, have more work to do to synthesise, simplify and sharpen their political messaging, while ensuring that they retain the confidence and active support of what is an extremely diverse constituency.

Admittedly, Congress is financially challenged following the current Government’s decision to cut their funding in the 2014 Budget. However this may be an opportunity. In my view, it is time that the Indigenous leadership acknowledged that not only must they speak with one voice if they are to maximise their policy influence within our political system, but that this voice must be established independent of government funding and influence. Opportunities exist to raise funds from the increasing number of significant Indigenous organisations nationally, from philanthropic sources, and even from business which over the last decade has increasingly seen and accepted the need for it to engage meaningfully with Indigenous Australians (see this page on the Business Council website).

It appears increasingly likely that Australia faces a decade or more of significant financial constraint, if not austerity. In such an environment, governments will be forced to make difficult choices. Given these accelerating challenges, it will be imperative in my view that Indigenous interests develop two broad capacities.

First, Indigenous interests would benefit from having a clear and effective voice in the broader political debate, with a capacity to both work with government and to take the debate up to government and to the public at large. The likely election of three or four Indigenous MPs across a range of parties in the next Federal Parliament will help, but will not be a substitute for an external Indigenous voice independent of the party system.

Second, Indigenous interests need to develop and sustain an independent and effective policy analysis capacity with both legitimacy and authority to speak on behalf of Indigenous interests, which would allow them to engage substantively both with the broader Indigenous constituency and with governments, state and federal. Policy issues are increasingly complex, have short life spans in public debate, and thus present only limited widows of opportunity for interests affected to have their say. Moreover, in many respects it is the macro economic and social issues which have the most potentially to affect Indigenous interests, for good or ill. Not to have a considered and persuasive view on these mainstream macro issues is to abdicate influence to mainstream interests groups and the bureaucracy.

The development and release of the Redfern Statement is a positive step on this pathway, but much work will be required over the next five years by the Indigenous leadership if Indigenous interests are not to be further marginalised by the Australian political system.

Improving Financial Accountability for Government Investment in Indigenous Affairs

This week’s Four Corners program provided a telling reminder of vulnerability of remote Indigenous communities to the predations of unscrupulous individuals who have been engaged to assist them in managing their financial affairs either as employees, advisers, or office bearers.

Tellingly, at the end of the program, the presenter Sarah Ferguson noted that this was not the first time that Four Corners had covered issues of fraud and financial mismanagement in remote communities, and asked rhetorically, ‘Is it a vain hope that we will not be returning to tell this story again?’

Accountability challenges in relation to funding for Indigenous development have a long and dishonourable history, and for better or worse, have contributed to the widespread public perception that much of the funding allocated to Indigenous affairs is wasted or misdirected. Whether this perception is fair or correct is irrelevant; the reality is that fraud and financial mismanagement within Indigenous organisations exists and any level of poor financial management should be deemed unacceptable.

Nevertheless, closer examination of the issues surrounding Indigenous funding arrangements, and the extent of funding mismanagement, reveals a more complex reality which is worth setting out in greater detail.

Waste

The first point to make is that there is a clear distinction to be drawn between the effectiveness of Government programs and inappropriate financial management. Clearly, the latter undermines the former. However, effectiveness shortfalls (which in everyday parlance we can term ‘waste’) can occur for a range of reasons, beginning with poor program design, poor program management, and poor program implementation and delivery.

It is only at the implementation and delivery end of this spectrum that Indigenous organisations are closely involved, and increasingly in Indigenous affairs, even those stages are being outsourced via competitive tender to a range of providers, indigenous and non-indigenous. It follows that Government – not Indigenous organisations – must bear primary responsibility for any ‘waste’ in Indigenous programs.

A second related point to note is that in public policy terms ineffective program investment (‘waste’) is a much more important issue than fraud. It has larger consequences for taxpayers, and more importantly, larger and adverse consequences for Indigenous citizens insofar as the purported benefits of the program investment are not realised or only partially realised.

In other words, program effectiveness is a much more salient and significant issue for taxpayers than financial mismanagement, and the responsibility for ensuring programs are effective falls overwhelmingly to government and not Indigenous organisations and citizens.

Arguably, the effectiveness of government programs (particularly grant programs) gets too little attention by the media and informed commentators. Governments habitually make it difficult for the public to be informed of the investment and grant decisions which have been taken, and the processes by which those decisions are taken. Evaluations are rarely totally independent and methodologically sound, and their terms of reference are often deliberately constrained so as to minimise the likelihood of adverse findings. Once completed, they are often not published or not published immediately.

In relation to grant funding, while there are processes for accessing information on grant funding such as Freedom of Information requests or Annual Reports, the transaction costs for individual citizens in doing so in any meaningful way are generally insurmountable, and once obtained, the information is often presented in ways which occlude the nature of what is being funded.

To provide an example, the recent Senate Committee Report into PMC’s Indigenous Advancement Strategy (IAS) struggled to receive a coherent account of the extent and nature of the funding processes under that program. Notwithstanding the extensive information on the public record relating to the IAS through that committee process and recent Senate Estimates questions, an interested citizen still has no way of assessing the effectiveness of the grants to individual organisations, nor the effectiveness of grants overall in particular sectors (such as the Community Development Program). And this Inquiry is a one off, and the information provided on the public record will quickly be out of date.

As an aside it is clear, as this recent post to the ANU’s Development Policy Blog demonstrates, that these issues extend beyond Indigenous affairs.

There is a strong case for improving the information on grant investment by government which is made publicly available, and in particular, for establishing a publicly accessible data base of both previous and current grant funding for all Government programs incorporating a capability for interrogation and sorting of the data by citizens and the media. The technical capacity exists.

In our much more complex digital age, the notion of ‘open government’ needs to be expanded if citizens are to be in a position to exercise their democratic rights to understand and effectively express their views in relation to government activities. This is particularly relevant in areas such as Indigenous policy where the challenges are huge and government’s role is crucial. Greater transparency of government investment decision-making will assist in improving program effectiveness and thus reduce ‘waste’.

In summary, the capacity of citizens external to government to assess program and grant effectiveness in a timely fashion is at the moment extremely limited. This is not an argument for greater transparency as ‘citizen voyeurism’, but for establishing mechanisms which incentivise government to invest more internal resources in ensuring programs are effective.

Under current arrangements, and notwithstanding the rhetoric on ‘open government’, it is only much later (if ever) – when problems emerge – that ineffective program results become apparent. By then it is too late for any accountability mechanism to have an impact.

Fraud

Turning to issues of financial mismanagement and fraud in Indigenous organisations, we need to disentangle a number of threads. While arguably an extremely small proportion of overall funding and thus of lesser significance (at least in objective terms), fraud has the potential to gain substantial political and public attention.

Moreover, for Indigenous interests, being subjected to fraud can be catastrophic for the legitimate operations of community organisations, and can undermine community and organisational cohesion.

Community members can be severely disadvantaged and office bearers shamed and humiliated. The Four Corners program made this point very effectively, demonstrating the trauma and shame which community members felt at being ripped off by individuals they had trusted.

While fraudulent activities and financial mismanagement can occur anywhere, and is not by any means limited to the Indigenous sector, there appear to be strong intuitive grounds for concluding that Indigenous organisations are particularly vulnerable. Their office bearers are often appointed for their community based links, and not for their financial or organisational skills; organisational membership is often drawn from groups with low levels of educational attainment and low levels of financial literacy; and importantly, Indigenous cultural mores which emphasise and prioritise kin based relationships over externally imposed rules can lead to poor governance and oversight in the absence of governance training and development.

The structural tension public policy-makers face is to maximise Indigenous ownership and involvement in managing their own affairs including in the delivery of programs to the Indigenous community while minimising the adverse consequences of poor governance, defective program implementation or poor financial oversight and management.

A key point in considering the policy significance of these issues is to note that Indigenous organisations increasingly have access to their own sources of revenue, through business activities or from various land and native title related financial agreements. It is not just taxpayers’ funds which are at risk from poor financial management. The capacity for Indigenous commercial and economic development is also placed at risk from deficient financial management practise within Indigenous organisations.

Governments have been aware of these issues for decades, and from time to time have focussed on one or another of the elements underpinning the effective financial management of Indigenous organisations.

For example, in recent decades there have been from time to time efforts to improve governance in Indigenous organisations, to strengthen the original purpose of the CATSI legislation, to roll out financial literacy programs, to strengthen remote community access to banking services, and to strengthen government’s capacity to audit and evaluate Indigenous programs through the now defunct Office of Evaluation and Audit. Each of these initiatives has faded in profile and priority, and there appears to be no overall strategy focussed on managing the risk of fraud or misappropriation within Indigenous organisations.

Under the new IAS, the present Government has strengthened the requirement for funded organisations to be incorporated under CATSI or the Corporations Act (rather than under state based Associations Acts designed for tennis clubs and the like). The Government has also encouraged greater use of independent directors on the boards of organisations with complex or substantial financial responsibilities. I support both of these initiatives.

Following the Four Corners program, the ABC reported that the Registrar of Aboriginal Corporations issued a statement to the ABC:

The Registrar of Indigenous Corporations, Anthony Beven, declined to be interviewed but provided the ABC with a statement.

"The registrar takes allegations of wrongdoing seriously and has a strong track record of taking action where there is evidence of wrongdoing," the statement said.

"In the last six years the registrar has taken action in the courts against more than 140 corporations and individuals.

"If you or any person has any evidence of any wrongdoing by any person or corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 please refer it to the registrar's office (ORIC)."

ORIC has launched more than 140 criminal prosecutions since 2011 and supported hundreds of Indigenous organisations to improve their governance.

Full details of the prosecution outcomes from the registrar's action are available on the website.

This led the Chair of the National Congress of Australia’s First Peoples, Dr Jackie Huggins, to comment there was still an endemic problem with misuse of Indigenous funds:

"It's still not getting any better, in fact it's getting worse," Dr Huggins said.

"We are sick and tired of all the money that gets ripped out of Aboriginal and Torres Strait Islander organisations."

The Minister responded:

Federal Indigenous Affairs Minister Nigel Scullion on Tuesday backed the regulator and said he was aware that it was operating under budgetary constraints.

Senator Scullion said a review of the ORIC and the CATSI Act was currently underway.

"Some elements of the CATSI Act may have to be amended to ensure we can ... get further transparency for organisations," Senator Scullion said.

"Of course everyone will be able to make a submission and that review will be public."

But Senator Scullion said the investigations that were taking place into compliance at 44 Indigenous organisations would not be made public.

In the light of the recent revelations on Four Corners, and the considerable quantum of the grant funding currently being allocated to Indigenous affairs, there appear to be grounds for concluding that Government should do more. A first step would be to acknowledge that Governments, not regulators, are responsible for the policy and program frameworks which determine how fraud with Indigenous organisations is dealt with.

The response of the Minister, apparently on the run, ‘announcing’ a pre-existing review of the CATSI Act will not get the root of the issues. His focus on the regulator neatly sidestepped his own broader responsibility for the current policy frameworks which are clearly facing considerable challenge.

As a corporate regulator, the Registrar can investigate the compliance of Corporations with the legislation, and under the current Registrar ORIC has an admirable record of pursuing financial mismanagement within CATSI Act corporations. But his remit is only partial, and he has limited capacity to pursue individuals outside CATSI corporations who engage in illegal behaviour. This appears to be the case at the Warmun community covered in the Four Corners program.

A Broader Review

To respond to the plea of the National Congress Chair, the Government should in my view commit to establishing a comprehensive policy framework addressing the risk of financial mismanagement in Indigenous organisations. Such a policy framework should not involve more punitive and intrusive grant oversight and management, but should focus on a stronger and more streamlined approach to investigation and prosecution of offences.

In this context, it is worth noting that the current Commonwealth grant management processes in Indigenous affairs are arguably over-engineered, and reducing their complexity would be consistent with the Government’s red tape reduction strategy. The notion of ‘earned autonomy’ under the current IAS Grant Guidelines (refer section 12) meaning that funded organisations which can demonstrate lower risk profiles can ‘earn’ more streamlined grant management processes sounds plausible, but would be better framed in terms of a minimalist default, which is ramped up as risks increase.

A first step in developing the policy framework suggested here would be to initiate a broader review of financial management issues affecting Indigenous organisations, with a positive remit focussed on identifying structural opportunities and developing an ongoing policy response.

Such a Review needs to extend to the capabilities and operations of all Indigenous organisations, not just those incorporated under the CATSI Act, and should encompass the need for new policy measures and responses, and the effectiveness of current policies and programs related to Indigenous corporate governance, financial literacy, management training, and the like.

While there are legitimate constraints in making the outcomes of the 44 reviews currently underway public, the broader review I am proposing here should also assess the effectiveness of Government responses to defective grant management and in particular, the extent to which past internal reviews have led to prosecutions and remedial action. There is a strong case for greater transparency in relation to the results of internal reviews undertaken (while protecting the legitimate privacy concerns of organisations and individuals). Without it, the risk is that reviews take the easy course, avoid prosecutions, and send a signal that accountability is optional.

Finally, the proposed Review should examine the record of state and federal police in pursuing cases of fraud within or in relation to Indigenous organisations. My experience over three decades has been that in most cases of fraud, the quantum of funds misappropriated does not exceed the risk based thresholds used by police in allocating serious investigatory resources. There is a strong argument in my view for a smarter approach to risk based assessments by police and law enforcement bodies, where they allocate a small proportion of their resources to investigation frauds and thefts which fall below their normal thresholds. This would send a clear signal to potential perpetrators that they are not immune from investigation and potential prosecution.

I am not holding my breath on the establishment of such a broader Review, nor of a new policy framework on financial management for Indigenous organisations. However, in the absence of a coherent and comprehensive effort by Government to bring greater rigour to financial management within Indigenous organisations, theft, fraud and misappropriation will continue to be problems in Indigenous Affairs. Unfortunately, if this is the case, Indigenous interests will continue to wear an undeserved level of public opprobrium, and the deep-seated public perception that Indigenous affairs is characterised by wholesale waste and inefficiency will – unfairly in my view - continue to permeate the Indigenous domain.

Interregnum

I expect there will be an interregnum in posting to this blog over the next month or so. Apologies to my few dedicated readers!

In small recompense, I can only offer Puck's defence:

“If we [walking] shadows have offended, / Think but this, and all is mended, / That you have but slumber’d here / While these visions did appear”

A Midsummers Night’s Dream

Ben Murray Gallipoli Veteran

In late 1975, my partner Boronia and I had the pleasure and privilege to accompany a linguist, Peter Austin, to Marree in South Australia. Peter was completing his field research for his PhD in Linguistics on the Diyari language. Peter is now one of the world’s leading authorities in endangered languages.

In the small town of Farina, we met up with Ben Murray, one of Peter’s key informants and consultants, and one of the few remaining speakers of Diyari.

Murray was the only occupant of the abandoned township, moving from one house to the next as they fell apart around him. We heard a little of his remarkable life story then, and I particularly remember him telling us about his time as a soldier in the first world war.

Peter (along with co-authors Louise Hercus and Philip Jones) later published a short biography of Murray in the Journal Aboriginal History: 'Ben Murray (Parlku-nguyu-thangkayiwarna)' Aboriginal History, vol. 12, no. 2, pp114-188. Pages 159 and following recount his time as a soldier in Gallipoli and Palestine.

Murray’s life was remarkable in many respects, spanning as it did the interactions of three communities, Indigenous, Afghan and Anglo-Saxon. Murray’s stories (link to article here) provide some insights into the nature of the remote Australian frontier in the 1890s, and to Murray’s stoicism and sense of humour. I particularly remember Murray explaining how his knowledge of Afghan language and customs assisted in ensuring that he was captured alive and not killed by the Turks in 1918, an event recounted in some detail in the short biography.

Murray died in 1994 at the age of 101. He deserves to be remembered on this ANZAC day. Perhaps we should also remember the contribution and persistence of Murray’s Diyari forebears whose knowledge of the land, whose customs and language now rests on the brink of extinction.

Lear on justice

Poor naked wretches, whereso'er you are,
That bide the pelting of this pitiless storm,
How shall your houseless heads and unfed sides,
Your loop'd and window'd raggedness, defend you
From seasons such as these? O, I have ta'en
Too little care of this! Take physic, pomp;
Expose thyself to feel what wretches feel,
That thou mayst shake the superflux to them,
And show the heavens more just.

King Lear Act Three Scene Four

Fair Agreement or Ongoing Dispossession?: The Noongar Settlement in WA

In 2003, the Noongar people lodged a single native title claim over the south west of Western Australia.

In 2006, in Bennell v Western Australia (2006) 153 FCR 120, Wilcox J of the Federal Court found that Noongar people were, subject to any prior extinguishing acts, native title holders over the areas claimed. This decision was overturned on technical grounds by a Full Federal Court decision in 2008 (Bodney v Bennell 167 FCR 84) and the matter sent back for reconsideration.

With this litigation as a backdrop, the Noongar representative body, the South West Land and Sea Council and the Western Australian Government began discussing a settlement. This led to a Heads of Agreement between the two parties being signed in 2009, and in 2013 the WA Government released its settlement offer. Details of the background and elements of the offer are available here.

This offer has been discussed at a series of community consultation meetings across the south west region, and has been approved in principle by the majority of Noongar native title holders. However some 107 objections to the registration of the relevant ILUAs have been submitted to the National Native Title Tribunal and four applications have been made to the High Court seeking to prevent the NNTT from registering ILUAs. The bulk, if not all, of these objections are from within the Noongar community itself. This litigation is currently on foot and will presumably take some time to be resolved. In the meantime, the finalisation of the Settlement is in limbo.

Last week Sarah Bell, a Western Australian anthropologist who had worked for the South West Aboriginal Land And Sea Council (SWALC) gave a seminar at the ANU exploring the sources of the opposition to the proposed settlement of the Noongar native title claims in south west Western Australia within some elements of the Noongar community.

Bell’s research explores the roots of the opposition which appears to emanate from a small but vocal minority of Noongar people. It manifests itself in a focus on human rights, loss of sovereignty, the concessions implicit in the agreement including agreement to give up all claims to native title over the areas involved, and to future compensation.

While the rhetoric has a large emotional component, it is clear that the motivations of those expressing scepticism about the actions of government in seeking a negotiated settlement are based on a longstanding and more than justified sense of distrust of government. Government, as the formal representative of mainstream society, has been responsible for the dispossession and cultural devastation inflicted on Noongar people over almost two hundred years. And this leads them to the question: what has changed now?

For its part, SWALSC maintains that the benefits it has negotiated are substantial and comprehensive and justify the concessions being sought by the Western Australian Government. The SWALSC website lists the various benefits, which include annual allocations to a ‘Future Fund’ of $50m pa indexed over 12 years, the transfer of up to 320,000 hectares of various Crown Lands, and various other provisions. Glen Kelly (the CEO of SWALSC) and Stuart Bradfield make the case for the Settlement agreement in a recent book on native title developments, Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment (reviewed here).

As part of the process of informing Noongar people, SWALSC sought specific legal advice in relation to the merits of the settlement offer, and this is available on their web site (link here). The advice is very insightful in that it lays out the very substantial impediments to a successful native title claim, including such pragmatic factors as that the judge at first instance has now retired, the anthropologist whose research underpins the claim, and his informants, may no longer be available through to the significant legal risks arising from the substantial resources which will be devoted to disproving the claim by the WA Government.

The advice adds that to go a further step and seek to claim compensation for native title which has been extinguished since 1975 (when the Racial Discrimination Act was enacted) presents a further order of difficulty. Finally the advice confirms what has been clear since 1993, namely that the Mabo Decision is about property rights and not sovereignty. Australian law gives no joy to anyone claiming to have retained sovereign rights against the Crown.

I have laid all this out because Ms Bell’s seminar caused me to reconsider my own position that the Noongar Settlement is the way to go. To date my view has been that the Noongar are on the right track in seeking to negotiate a settlement. Litigation is always expensive, uncertain, and hence risky. Moreover the benefits negotiated appeared to be substantial, and they will be certain and flow much more quickly than anything derived from litigation. In addition, I had not seen any coherent argument to the contrary.

I am not persuaded by the rhetoric of the Noongar dissenters (while I acknowledge their history and absolute entitlement to the views they are expressing). In other words, it is not that I now believe that a settlement is inappropriate. However the question arises in my mind: what are the appropriate terms of such an agreement?

The answer to that question is one for SWALSC and the Noongar people as a whole. The dilemma they face, and which I wish to highlight, is that they are operating under two significant constraints: they face a considerable level of uncertainty as to the underlying position of the Western Australian Government, and the law on compensation for extinguishment of native title is still in a state of flux, with a number of current cases ongoing in relation to the extinguishment of native title.

The Western Australian Government has vast experience in managing native title issues, and the WA Premier has the advantage of having as his Departmental CEO Peter Conran, a highly professional and capable bureaucrat with deep experience of land rights and native title across a number of jurisdictions. This tells me that the WA Government would not have entered into this Settlement Agreement without good reason.

There are two potential reasons. The first is a desire for certainty, something on which governments (and corporations) place great store. Certainty is always desired, but I doubt that it would drive the negotiation of a billion dollar agreement such as we have on the table in WA at the moment.

The second would be that the WA Government knows that they have extinguished areas of potential native title since 1975, and while these extinguishments will have been validated by the Native Title Act (this was the core of the grand bargain entered into by the Indigenous Interests and the Keating Government in 1993) compensation will be payable. Where the (extinguished) native title involved is exclusive possession, then there is every chance that the values which will be applicable approach (or even exceed) freehold. When we bear in mind that areas involved include the Perth metropolitan area, and its surrounding suburbs and towns, and reflect on the expansion of urban development since 1975, we can see that the scope for significant compensation liabilities is significant. Just a single subdivision of 500 house blocks valued at say $500k each would total $25m, suggesting that the proposed $600m ‘Future Fund’ may not be particularly generous.

Of course, there may be no such areas of native title extinguished, and there may be no native title across the areas involved. However, given the deep scars arising from both dispossession of Aboriginal people, and the concomitant loss of their cultures, and as a consequence severely diminished life opportunities, there is in my view a strong case in social justice terms for Governments to be more transparent about their underlying legal positions in cases such as this.

I am certain that the Western Australian Government knows whether they have extinguished potential native title land since 1975, and probably has an estimate of the potential value of such land. The extent of the generosity of their offer in the proposed Settlement Agreement can only be judged with access to that information.

Governments will claim that there is a commercial imperative to retaining confidentiality regarding their worst case scenarios. While I don’t necessarily accept this (it is another way of saying that Indigenous citizens should wear the majority of the costs of settlement and dispossession), one approach would be for the WA Government to commit to releasing their internal advice five years after the agreement has been finalised.

In the absence of any such transparency, it seems to me that there would have been a strong case for the Noongar negotiators to insist on some sort of review process (say in forty years) or acknowledgement of government’s fiduciary responsibilities to Noongars which would open up the opportunity to revisit the agreement in the event that it becomes apparent that the agreement represents an unjust outcome.

The second substantial issue which arises from the Settlement Agreement (assuming it is implemented) is that all the risk of ensuring that the funds and benefits which transfer are effectively managed fall on SWALSC and the Noongar people. This is not a unique problem; many native title groups face similar challenges. It is not clear to me how well prepared Noongar people and their organisations are to meet this challenge. What I have learnt over thirty years in public policy is that strong governance, backed up by resolute corporate regulation will be a key component of successfully meeting these challenges. Governments, in both Canberra and Perth, have a role in ensuring that the corporate regulation framework governing the investment, distribution and allocation of funds from native title agreements are appropriately oversighted. This is an area where Governments could do significantly better.

My final observation is to note the length of time which is involved in resolving the Noongar claims and the proposed settlement agreement, and to make the obvious point that this necessarily exacts a huge toll on the participants involved. Notwithstanding the internal conflicts which have emerged, the Noongar people, and their leaders, appear to have handled the process in an exemplary fashion. The broader community rarely steps back to acknowledge the ongoing imposts on Indigenous people who are merely seeking to use the convoluted and arcane legal systems we have put in place to achieve just a modicum of justice.

Homelands Policy: from Antagonism to Confusion

Next Monday, ANU Press is launching a book edited by Nicolas Petersen and Fred Myers titled Experiments in Self Determination: Histories of the Outstation Movement in Australia, which explores the history of the outstation movement in remote Australia through a series of case studies of particular outstations which interrogate the complex interactions between demography, attachment to country, community aspirations, cosmology and culture, all within the shadow of the overarching and changeable demands of government policy.

I haven’t read the book, but a quick scan of its contents and the chapter authors convinces me that it will be an important book for anyone keen to understand Indigenous (and primarily Aboriginal) perspectives on the history of the last fifty years across remote Australia.

At its most abstract level, the debate has swung between those who argue that residency on outstations has no economic basis nor future, versus those who argue that there are strong social , cultural and even health reasons for supporting small remote outstation communities.

So for example, in March 2015, then Prime Minister Tony Abbott made a statement suggesting that Governments could not subsidise the ‘lifestyle choices‘ of Indigenous people to live on remote communities and homelands.

Against this view, see the 2009 report commissioned by AMSANT, the Institute for Cultural Survival and the Miwatj Heath Service on the health benefits of living on country. See also a congruent report outlining the health benefits of participation in caring for country activities.

It is fair to say that government policy has emerged from a period of near universal antagonism to the notion of outstations (or homelands as they are often called) and entered a policy space characterised by a hefty degree of confusion.

In recent years, there has been a complex chess game between the Commonwealth and the states over responsibility for municipal support for remote communities including outstations. The Commonwealth Government finally bit the bullet in 2013 and announced it would no longer fund these services (helped in the NT by a longer funding tail embedded in the National Partnership Agreement on Stronger Futures in the Northern Territory).

The fundamental problem here from a policy perspective is structural. That is, local governments which fund these services for non-Indigenous communities has historically not been required to do the same in the Indigenous realm. Moreover, local government jurisdictions are patchy in their coverage with large unincorporated areas still existing in some states, and its funding base is flawed. So for example, the Government funding flowing to local governments is linked to population levels and not need. And from an indigenous perspective, the reliance on rates of many local governments is not suited to the realities of Indigenous ownership of non-commercial tracts of land which are not able to sustain a rates base.

The policy confusion arises because different approaches towards support of outstations and small remote communities have opened up between the states, and the Commonwealth is largely running dead.

Western Australia has its own history of debate over the future of remote communities including outstations. In 2014, the Western Australian Government announced a decision to defund remote communities (see here and here), which it subsequently back-tracked on in favour of a review/consultation process which is ongoing.

The risk that the Western Australian Government will attempt to walk away from support for many small communities and outstations is still very real.

However, in the Northern Territory, the election of the Giles CLP Government in 2012 built largely on splitting a significant number of bush electorates away from Labor, and the new Territory Government’s realisation that it will need to work extremely hard to retain those electorates in this year’s election, has meant that the CLP Government has adopted a much more supporting attitude and policy towards outstations and homelands. The personal roles and influence of Indigenous Ministers such as Alison Anderson (now an independent) and Bess Price has clearly been influential too.

The Northern Territory Governments policy on Homelands is set out in a policy document titled Homelands Policy: A shared Responsibility dated March 2015, although its website indicates that the policy is under review. The shared responsibility refers to the responsibilities of governments, residents and landowners. For a perspective from the left, see the critique of the policy published by Jon Altman shortly following its release. To its credit, the NT Government has committed to funding transparency and the web site provides lists approved funding for outstations. Funding allocations overall appear to be around $30m per annum (refer to the Fact Sheet).

The Commonwealth, for its part, appears to have placed outstations firmly on the backburner. It does not appear to have a clear policy framework, apart from managing the exit from its MUNS funding responsibilities. The mantra ‘these are state and territory responsibilities’ holds sway in the corridors of the Department of Prime Minister and Cabinet.

In the NT, the Commonwealth has the luxury of access to the Aboriginal Benefits Account which allows the Minister to make relatively random and small grants available to outstations. A proposal originating under the previous Government to make available an envelope of some $40m for outstation support subject to the ABA Advisory committee developing a policy framework appears to have stalled.

The 2012-13 FaHCSIA Annual Report reported on proposals to develop a Homelands Policy for the ABA:

During the 2012–13 financial year the ABA Advisory Committee developed a Homelands Policy Framework which outlines a more strategic approach for using ABA funds to support homelands. The proposal was developed after extensive consideration of the issue by the committee and its Homelands Subcommittee. The document was endorsed by the ABA Advisory Committee at its meeting in November 2012 and forwarded to Minister Macklin in February 2013. The report advises that the Department is currently working with the ABA Advisory Committee on options for implementing the framework.

The Minister announced the results of last ABA Funding Round in June 2015. Many of the grants are allocated to outstations for a range of purposes. Of the 43 approved grants, at least 13 appear to be directed towards assistance for outstations.

As mentioned in a previous blog post, there has not yet been an announcement of the ABA grants arising from the September 2015 round, and this is now well overdue. With a Federal election set to be announced within weeks, and a caretaker period preventing ministerial funding decisions, we can expect announcements very shortly. Of course it is possible that the Minister has made decisions, and decided not to announce them. The scope for politicised use of the ABA is quite high given its limited geographical scope (it can only be used in the NT) and the fact that the Minister who can make unilateral decisions (albeit after advice from the ABA Advisory Committee) is himself an NT Senator and there is an NT election scheduled for later this year. The non-announcement of funding decisions would be prima facie indicators of political trickiness.

On a related topic, I understand that the NT and Commonwealth Governments last year jointly commissioned a review of Homelands Assets and Access by the Alice Springs based Centre for Appropriate Technology. The report was designed to assist the Commonwealth to finalise its approach to implementation of the ABA Homelands policy. CAT apparently finalised the report a couple of months ago, however it has been held up in Minister Scullion’s Office and is yet to be released.

Contrary to the expectations of many outstation resource agencies, the results of the report have not been discussed with them in draft, leading to an increasing sense of anxiety. Rumours emanating from the NT bureaucracy suggest that the Minister may be considering the establishment of an ‘ABA Corporation’ to manage and expend the $40m allocated to implementation of the ABA policy.

If these rumours have substance, such a move, particularly if announced without consultation and discussion, would engender fears amongst many interests, including the land councils, that the funds were being ‘pre-allocated’ and locked up in advance of the forthcoming federal election.

To sum up, the aspirations of thousands of Indigenous citizens to live in outstations and homelands continues to challenge Australia’s tendency towards mono-cultural modes of economic and social life. Governments appear unable to drive the structural and institutional changes which would allow funding support to flow automatically for the essential services which most Australians take for granted.

The NT, to its credit, has turned a corner and appears more open to accepting the reality of diverse remote modes of living. However it will eventually hit the constraint of limited funding. The key to a sustainable national policy framework for the nation lies within the Commonwealth Government.

Unfortunately, the Commonwealth appears to be lagging, and sees all policy through funding lenses rather than as part of a coherent and synergistic framework built on freedom of choice for all citizens.

To end where I began, I will read the new Peterson and Myers book with interest not least because an understanding of the historical roots of the outstation movement is essential to understanding the complexities of the issues we are dealing with today. I suggest that anyone else with an interest in remote Australia do the same.