by Peter Jull
(The Northern Review #12/13 (Summer/Winter 1994): 202-207)
“Regional agreements,” an export from Northern Canada, are all the rage in Australia in 1994. The term is used here to describe Canada's comprehensive claims settlements in the Yukon, Inuvialuit region, Nunavut, Northern Quebec and the Mackenzie Valley as well as processes underway in British Columbia and Labrador.
Standing outside the Canadian experience, Australian and indigenous organisations and non-indigenous experts have seen, more clearly than many Canadians themselves, the potential in such ap proaches. If Canadians have been fumbling and ad hoc in their claims settlement negotiations, too often sealing themselves off from the valuable experience of others, Australians are benefitting from an overview of a variety of experience. They are casting their eye over Canadian cases as well as Alaskan and Greenlandic ones. Indeed, at the first major workshop on regional agreements, held in Cairns, Queensland in July 1994, the Inuit premier of Greenland and some of his resources experts, who happened to be travelling in Australia at the time, were late additions to the program, while Inuit from the Inuvialuit and Nunavut regions also took part.
An Australian team made up of Donna Craig, Law, Macquarie University; Ben Richardson, Australian National University Centre for Resource and Environmental Studies; and Professor Ben Boer, Law, University of Sydney, have been the leaders in this field and have publications now appearing. Ms. Craig is also contributing to significant national policy processes now underway in Australia.
There may be a unique opportunity in Australia today. The June 1992 decision of the highest court in Mabo, a ten-year action brought by Torres Strait Islanders of the easternmost islands in their region, stunned the country with its withering dismissal of the terra nullius doctrine that had become as much a social and political justification in Australia as a legal fiction. The decision confirmed the existence of native title and recognised the validity of indigenous customary law and law-making. Reaction from many of the conservatives who would endorse common law principles for whites was so furious that politicians and indigenous leaders decided they must legislate some future native title régime. Between March and December 1993, the Prime Minister personally led an inspirational and precedent-setting negotiation with indigenous leaders, sometimes more like a crusade amid doubting white power-brokers and, after a debate of record parliamentary length, the Native Title Act was passed—just in time for Christmas. Not only does the new national Native Title Act give an explicit nod in the direction of “regional agreements” but a sense of pragmatism, among indigenous leaders, business interests, local authorities and governments, is also providing hope in some parts of the country for practical accommodations. Regional agreements are on the agenda.
It is a remarkable agenda item, at that. Some policy discussions behind closed doors have crackled with anger, misinformation, disinformation, outrage and, sometimes, sublime hope for regional agree ments, and all without the benefit of basic factual information. Like some new religious doctrine, regional agreements are imagined to bring all kinds of good or evil effects—ones that might astonish Canadian claims veterans.
Two cases that are well advanced now are the work of Torres Strait Islanders and the Kimberley Land Council. The Islanders are moving towards some form of territorial government, an important step towards which saw inauguration on 1 July 1994: a new federal Torres Strait Regional Authority with nominal Islander-elected control. The Islanders are also seeking to have marine rights and a marine management strategy under their control. In the Kimberley, the far North of Western Australia, Aborigines are working towards a comprehensive approach in the teeth of a very hostile government. In both cases there is everything yet to do but nobody can doubt the power of the regional concept.
The Central Land Council based in Alice Springs has also begun to make very articulate proposals for its region, and governments there and elsewhere are on the back foot. That is, Australian indigenous groups have assembled a formidable array of expertise, including economic, inter-governmental relations, constitutional and legal studies. Indigenous leaders are rapping on the heads of the nation's governments and finding them hollow.
There are three main indigenous policy processes underway here today. First is the work of the Council for Aboriginal Reconciliation, a body of more than twenty people named by the previous PrimeMinister with all-party support and participation in 1991. The majority of its members are Aborigines and Torres Strait Islanders, with the rest being non-indigenous persons including leading representatives of pastoral and mining interests. The Council tabled its first major report and proposals in Parliament in November 1994.
The Council has given visibility and currency to the term reconciliation, which Canadians might more likely render as accommodation, although our two countries may have somewhat different meanings in mind. The test for the Council and its report in the indigenous community and among socially-progressive Australians will be the extent to which it can move public debate and policy from expressions of generalised niceness to recognition of aboriginal rights. Indigenous leaders have been rather sceptical to date but no doubt the Council's publications, including a series of eight issue papers in 1994, have had some educational impact. The soft liberalism of non-indigenous Council members is similar to Canadian sympathies before the 1969 White Paper and the rise of “core-funded” indigenous political associations, i.e., mostly invisible and almost wholly ineffectual. Yet the report may be the highest consensus the Council reaches. It is understood to contain an international section with outlines of the experience of each of the USA, New Zealand and Canada.
The second process is a continuing one of the office of the national Aboriginal Social Justice Commissioner created in April 1993. The Commissioner is himself an Aboriginal barrister and well-recognized advocate, Mick Dodson, whose older brother, Pat, chairs the Reconciliation Council (and gives that latter body most of its credibility in North Australia). By means of his annual reports and special studies, the Commissioner hopes both to broaden and focus the policy debate, taking a rights-oriented approach and leading discussion on such subjects as constitutional reform, etc. Most importantly, he wants Australia meet the standards of, and contribute to, international indigenous policy “best practice.” In 1994 he assembled, from outside experts and his own staff, an informal group that has been preparing discussion and position papers on these and related matters.
The Commissioner's first report was a powerful argument for a rights approach, cutting through the muddle that has long been Australia's national indigenous policy outlook—an outlook effectively scuttled by the Mabo decision of 1992 but not yet replaced. The Commissioner's personal sense of mission and his independence from government—as part of the Human Rights and Equal Opportunities Commission his funding is determined by the federal Attorney-General's Department—make the prospects for his work particularly promising. In late 1994 he is working on a report on indigenous social justice to contribute to a current national discussion.
The third process results from the current Prime Minister's promise to bring down a “social justice package” for indigenous people not benefitting from the Native Title Act, which implements national indigenous land rights policy in the wake of the Mabo decision and which came into force in January 1994. As in Canada, Native title claims are largely limited to areas of unalienated Crown land but while there are no indigenous treaties in Australia to give the Crown its title over large, sparsely settled areas, most of the country outside the settled and cultivated zones is covered by pastoral leases that, it appears, exclude residual indigenous rights. If the social justice package began life as a vague political promise, it has become a major opportunity to write a comprehensive national indigenous policy.
The committee set up to propose the social justice package has an impressive membership of indigenous leaders. It has held hearings around the country, as well as lengthy seminar-style meetings itself, to consider the issues. However, a gulf has opened between those who want a limited and practical focus, and those who see an opportunity to change the big policies. This gulf has been widened by some public officials who frankly and openly fear any loss of control for their own bureaux. The big ticket items like constitutional reform and regional agreements, though promisingly canvassed in the public issues paper used in consultations around the country, have been vigorously discouraged and undermined by some of those associated with the committee.
To the extent that there is a rational division of view in this matter, it may be said to be between those who favour devolution of power and funds to autonomous indigenous entities that are self-governing—that is, those who favour major policy change—and the rest who favour centralised control of funds and authority, the hope of indigenous people of the latter view apparently being to gain positions in “the system” and wield real power in the heart of the Australian bureaucratic system. This view is moreunderstandable when it is remembered that a closed club of mates is often seen as the power-broking force in Australian Labor politics, i.e., the national model of “real power.” After all, in Canada, indigenous organisations pursued entry to the First Ministers Conferences, which may be seen to be our own archetypal power élite. Nevertheless, beating the Australian central bureaucracy by joining it seems a forlorn dream. Some devolution seems inevitable, in any case, so unanimous have been the demands in public hearings for more direct local control over indigenous spending. Closely related to that is the demand from Aboriginal communities around the country for direct federal funding to avoid the states' middleman role, which is seen to siphon off too much of the available funding and often involves insensitive state and territory bureaucracies. (The federal government has only had a constitutional right to involve itself in Aboriginal affairs since a national referendum in 1967.)
While the policy prospects may seem by no means sure, there are other factors at work. Australia is going through a time of heightened self-awareness and conscious national identity-building in the lead-up to the centenary of federation in 2001. Although the conservative Opposition coalition in Canberra affects to see this as a divisive Labor scheme—and it is dividing the Opposition very effectively—the whole of society seems to be involved genuinely enough. As with any exercise in nationalism, this has its unpalatable aspects—as when the Prime Minister accuses New Zealanders, who are a large, industrious, and tax-paying minority in Australia, of being welfare layabouts and when he claims decisive Australian involvement in the victorious battles of both World Wars (except, to date, Stalingrad)— but the process so far has been led by social progressives. Few Australians seem to have noted that republican-style nationalism often becomes intolerant, and virtually none are aware that indigenous peoples in Quebec and Norway have uncomfortable experience with that political genre.
This national renewal includes such items as investigation of constitutional reform and a republic, more positive and outward-looking policies in many areas including the economy and foreign affairs, a greater engagement with Asia, pride in the national arts and entertainment (which are dynamic, original and world-class), and respect for and recognition of Aboriginal and Torres Strait Islander peoples, cultures and territories. Indeed, it is now generally accepted that indigenous peoples, like Australia's natural environment, are the truly unique elements in national life.
Of course, after deep recession and amid world uncertainties, there is plenty of resistance to social and political change. A states rights movement, which would do credit to the Old South, flourishes, as does peevish post-Britishism, redneck reaction and a belief (despite the statistics) that the social order is collapsing. The most dangerous trend, especially for indigenous peoples, is the disparity in social attitudes and public values between Queensland, Northern Territory, and Western Australia on the one hand, and the old South-East on the other. Whether that disparity is widening, or whether an aroused indigenous community is simply fighting harder now against long-standing injustice in the North and West, is hard to discern.
The obvious parallels between Canada and Australia in geography, history, Northern hinterlands with extreme climate, and now indigenous rights decisions of the highest courts make interest in Canadian experience logical. It is likely that Yukon and NWT residents will become used to seeing visiting study groups from Australia—curious and shivering.
Peter Jull
Brisbane