5 Nations - Self-determination and a new era of Indigenous governance

• 5.1 Introduction
• 5.2 The importance of Nations
• 5.3 Framework for Indigenous governance
• 5.4 Community governance: a Nation building approach
• 5.5 Australian accounts of successful nation building
• 5.6 Voices of Nations, not just national voices
• 5.7 Conclusions and recommendations

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5.1 Introduction

Since the beginning of my term as Aboriginal and Torres Strait Islander Social Justice Commissioner, I have highlighted the need for stronger and deeper relationships between Aboriginal and Torres Strait Islander peoples, the broader Australian population and government. I have also noted the need for healing our own relationships within Aboriginal and Torres Strait Islander communities.

In 2012, I underlined the need for leadership in building and supporting effective Indigenous governance, and set out a framework for approaching this issue.^[473] Effective, legitimate and culturally relevant Indigenous governance is crucial to realising the self-determination of our people.

I have also reinforced how the United Nations Declaration on the Rights of Indigenous Peoples^[474] (the Declaration) can be used to improve relationships between Aboriginal and Torres Strait Islander peoples, the broader community and governments.^[475]

This year I would like to shift our focus to Aboriginal and Torres Strait Islander nations.

The existence of nations in Australia is undisputed. There have been various names given to these collectives over time: peoples, tribes, clans, language groups, nations and mobs. For the purposes of this chapter, I will use the term ‘Nations’ as a representative title for all of these groups.

The concept of Aboriginal and Torres Strait Islander Nations is important to the identity, survival and self-determination of our peoples. ‘Nation building’ – that is, enhancing Aboriginal and Torres Strait Islander peoples’ capacities for self-governance and self-determined economic development – is fundamental to this process. New research presented in this chapter shows that where local Aboriginal and Torres Strait Islander peoples, Nations, communities, authorities and organisations have power and control over decision making and resources, real change is achieved in a more sustainable way.

Change achieved by this style of governance, in line with the aims and values of our peoples, is a true reflection of self-determination. Similarly, Nation building guided by the Declaration, in my view, will lead to the realisation of Aboriginal and Torres Strait Islander rights, stronger communities and more meaningful engagement.

That being said, Nation building should happen alongside national engagement. The past year has seen significant changes in the way that government is engaging with Aboriginal and Torres Strait Islander peoples. It is a time of upheaval, as discussed in Chapter 1, with the restructuring of programs and activities, establishing new advisory and engagement structures, and different grant administration processes. This is in addition to this year’s budget which cut $534.4 million from Indigenous programs in the Department of Prime Minister and Cabinet and the Department of Health alone.^[476]

Now, more than ever, is the time to ensure that our voices are heard by the Australian Government. We must remind the government of its obligation to consult and genuinely engage with Aboriginal and Torres Strait Islander peoples, and make sure that consultation is conducted in meaningful ways, renegotiating the current power imbalance.

I will discuss how Nations have the potential to be a unifying collective voice for advocacy and dispute resolution, as shown by the recent commitment of Aboriginal and Torres Strait Islander peoples to forming the Assembly of First Nations in Australia. This unification of separate and distinct Nations, geographically spread across Australia, is the missing link in current manifestations of Aboriginal and Torres Strait Islander representation in this country.

Whilst individual Nations certainly already exist, bringing them together strengthens our voice concerning the collective needs, aspirations and concerns of our peoples. This chapter will also consider how the Assembly of First Nations is a step towards more meaningful representation of our peoples at a national level – as a decision making body with cultural authority.

5.2 The importance of Nations

It is generally accepted that at the time of colonisation in 1788, Aboriginal and Torres Strait Islander peoples owned and inhabited Australian land and its surrounding islands:

Many of these groups formed distinct nations. There were about 200-250 distinct languages and many related dialects... They had developed sophisticated technologies, kinship systems, songs, dances and a variety of visual art forms. They had an effective and powerful legal system.[477]

The Australian Government estimates that there were over 500 different Nations in existence at this time.^[478] These Nations were not recognised by colonisers as legitimate – the basis of the concept of terra nullius – and almost all of the actions since taken by those in power, either explicitly or implicitly, have sought to dismantle these structures.^[479]

In the hearts and minds of Aboriginal and Torres Strait Islander peoples, our ‘nationhood’ has always survived and continues to be acknowledged between us.

Some Nations remain strong, with traditional practice still being undertaken today.

Other Nations have adapted traditional ways to meet modern standards.

Sadly, some other Nations have been fractured or devastated.

There is a long history of advocacy and agitation for our peoples and their rights to be recognised by Australian Governments and the Australian population. This has occurred politically, as seen in William Coopers’ petition,^[480] the Bark Petition,^[481] the Barunga Statement,^[482] the Tent Embassy,^[483] the land rights campaigns,^[484] and of course our ‘street campaigns’, such as those run by the Federal Council for the Advancement of Aborigines and Torres Strait Islanders.^[485]

There has been activism around the Australian Constitution culminating in the 1967 Referendum,^[486] which gave power to the federal government to make laws with respect to Aboriginal and Torres Strait Islander peoples and finally allowed for the inclusion of our peoples in the Australian Census.

It has occurred using the judiciary, with landmark cases such as Milirrpum v Nabalco Pty Ltd,^[487] the Gove case brought by the Yolngu people against the Federal Government and the Nabalco Mining Company, Mabo v Queensland^[488] brought by Eddie (Koiki) Mabo and others that established native title, and the case of Wik Peoples v Queensland.^[489]

It continues today in the Federal Court through native title determinations, and among the population at large with the campaign currently underway for Aboriginal and Torres Strait Islander peoples to be formally recognised in the Australian Constitution.

Currently there are several ways in which the concept of nationhood is manifested by Aboriginal and Torres Strait Islander peoples, including:

• Nations self-identifying, an identity recognised and respected by government, the private sector, the Nations’ Aboriginal and Torres Strait Islander neighbours and non-Indigenous populations.
• Nations are recognised formally by legislation, such as the KerrupJmara clan and Kirrae Whurrong clan in the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth).
• Nations are recognised by the judiciary in native title determinations, whether by consent or judicial decision.

By whichever of these means it is articulated, the concept of Aboriginal and Torres Strait Islander nationhood is alive and growing stronger.

As I have said previously, the exercise of self-determination can only be achieved with good community governance structures.^[490] At the July 2014 Indigenous Governance Development Forum,^[491] Professor Mick Dodson AM described self-determination as:

[T]he solution to governance – in an Indigenous sense – that actually delivers power and decision making to people, enables them to manage and organise, to be in charge of their social and economic development and to maintain their cultural values.[492]

I agree that there is a strong synergy between organised, governing Nations and self-determination.

5.3 Framework for Indigenous governance

In the Social Justice Report 2012, after setting out the relevant domestic and international research on the issue, I proposed a framework for effective, legitimate and culturally relevant Indigenous governance, with three central components:

• community governance - how our peoples and our communities govern ourselves, through our traditional laws, customs, norms and values, as well as by contemporary methods;
• organisational governance - the ways that Aboriginal and Torres Strait Islander organisations operate and deliver services to our communities, and communicate with external stakeholders such as governments;
• governance of governments – how competent government and their staff are to work with Aboriginal and Torres Strait Islander peoples, the administrative burden of government on services for Aboriginal and Torres Strait Islander peoples, and how the power sharing arrangement between the government and our people is negotiated.^[493]

I explained that effective governance for Aboriginal and Torres Strait Islander communities depends greatly on the quality and effectiveness of relationships between each of the actors involved at each of these levels.^[494] Further, I noted the importance in this process of the principles of self-determination; participation in decision-making, good faith, and free, prior and informed consent; respect for and protection of culture; and non-discrimination and equality.^[495]

This framework sets out that effective governance necessarily begins with community governance, based on the principles self-determination and the right to participate in decisions that affect us.^[496]

It is up to our people to decide what our goals are and the way in which we develop our structures and processes to achieve these. I urged all communities – remote, traditional, urban, regional and national – to invest in rebuilding or creating new community governance structures and mechanisms.

In 2012, I made the following recommendations to the Australian Government:

• That the Australian Government acknowledges that effective Indigenous governance is central to sustainable development in Aboriginal and Torres Strait Islander communities.
• That the Australian Government builds its own capacity to enable and support effective Indigenous governance.
• That all governments properly resource Aboriginal and Torres Strait Islander communities to strengthen their contemporary governance structures. This resourcing must be part of a new relationship between Aboriginal and Torres Strait Islander peoples and governments based on genuine power-sharing and partnership.^[497]

I advocated that the Declaration be used as a tool to strengthen relationships, not only between government and Aboriginal and Torres Strait Islander peoples, but within our own communities as well.^[498]

This year I will advocate a concept that all structures seeking to engage, advocate and agitate on our issues must be built on the foundation of community governance. This begins with Nations.

As stated above, there are two important areas of recent development in this context that will be discussed in this chapter:

• At a local level, there is new research to show how some Nations are governing themselves in successful and innovative ways.

• At a national level, there are steps being taken for Nations to band together to jointly negotiate and advocate with government and other bodies, in the format of a national Assembly of First Nations.

These are both examples of what I mentioned in the Social Justice Report 2012 as ‘community governance’.^[499]

These two processes are not mutually exclusive and, in reality, need to happen simultaneously. I see the Assembly of First Nations as a natural progression from the strengthening of Nations, but I also believe that having an Assembly will encourage lesser developed Nations to strengthen their governance structures, so that they too can participate.

5.4 Community governance: a Nation building approach

Nation building’ has been described as ‘the process by which a Native nation enhances its own foundational capacity for effective self-governance and for self-determined community and economic development.’^[500]

In recent years, there has been significant progression in research in this area.

(a) Development in Indigenous Nation building research and practice

Leading the way was the Harvard Project on American Indian Economic Development (Harvard Project).^[501] I outlined the Harvard Project’s Nation building approach to achieving development in Indigenous communities in the Social Justice Report 2012.^[502]

Guided by the Harvard Project, the Indigenous Community Governance Project (ICGP)^[503] was founded in Australia – a partnership between the Centre for Aboriginal Economic Policy Research and Reconciliation Australia. This project involved research over five years on Indigenous governance with participating Aboriginal and Torres Strait Islander communities, regional organisations and leaders across Australia. The ICGP was established to understand the effectiveness of different forms of governance and their consequences for Indigenous policy, service delivery, self-determination and socio-economic development. The project aimed to:

[E]xplore the diverse conditions and attributes of Australian Indigenous community governance arrangements, elucidate culturally based foundations of Indigenous governance and extricate broad universal principles of what constitutes effective, legitimate Indigenous governance, identifying transferable lessons to contribute to policy formulation.[504]

In a ground breaking development in 2010, the Native Nations Institute (NNI) at the University of Arizona (an outgrowth of the Harvard Project) was invited to partner with the Jumbunna Indigenous House of Learning (IHL) at the University of Technology, Sydney on an Australian Research Council (ARC) Discovery grant to undertake studies on Australian Aboriginal and Torres Strait Islander Nation building (the Jumbunna-NNI Discovery Project).

At the same time, another ARC Discovery Project had commenced – Negotiating a space in the nation: the case of Ngarrindjeri.^[505] Building on this and the Jumbunna-NNI ARC Projects, an expanded research team was awarded an ARC Linkage grant for the Indigenous nationhood in the absence of recognition: Self-governance strategies and insights from three Aboriginal communities^[506] project, as well as a Melbourne School of Government Research Cluster grant for the project, Indigenous Nation Building: Theory, practice and its emergence in Australia’s public policy discourse.^[507]

This work brings together three Aboriginal Nations, the Gunditjmara People in Victoria;^[508] Ngarrindjeri Nation in South Australia;^[509] and individuals and groups from the Wiradjuri Nation; with Australian and international academic researchers from seven universities, University of Technology Sydney,^[510] University of Arizona,^[511] University of Melbourne,^[512] Flinders University,^[513] Charles Sturt University,^[514] RMIT University,^[515] and the Australian National University.^[516] Combined, this research team can be described as the ‘Indigenous Nation Building Collaboration’.

The Jumbunna-NNI Discovery Project and the Indigenous Nation Building Collaboration each explore whether Aboriginal and Torres Strait Islander communities are undertaking comprehensive political governance (what I describe as ‘community governance’) and if so, whether the principles of North American Indigenous Nation building are helpful in this process.

The Australian Institute of Aboriginal and Torres Strait Islander Studies also has a strong focus on governance research.^[517] This research focuses on how Aboriginal and Torres Strait Islander peoples are ‘making choices and decisions together, holding decision-makers accountable, managing disputes and mobilising action, negotiating with outsiders, and assessing where they are at’.^[518]

Over the last year, the Australian Indigenous Governance Institute (AIGI) was established. The AIGI supports Aboriginal and Torres Strait Islander peoples in their efforts to determine and strengthen their own sustainable, effective and culturally legitimate systems of governance for projects, organisations, corporations and Nation building. The AIGI aims to fulfil this vision by operating as a national centre of governance excellence.^[519]

The most recent research is canvassed in a new, unpublished paper,^[520] from the Indigenous Nation Building Collaboration. This work compares the results of the Harvard Project with Australian studies, and finds similarities. I am grateful to Dr Mark McMillan, Dr Miriam Jorgensen and Dr Alison Vivian for allowing me to share an insight into this new work prior to its formal release.

The following sections present some of the findings of this new work.

(b) Indigenous Nation building

The Harvard Project contrasts the ‘Indigenous Nation building approach’ with the ‘standard approach’ to developing Indigenous governance, identifying key characteristics of both.^[521]

Text Box 5.1: Approaches to Indigenous governance^[522]

Indigenous Nation building Approach	Standard Approach
Indigenous Nations comprehensively assert decision-making power	Persons or organisations other than the Indigenous Nations set the development agenda
They back up decision-making with effective governing institutions	Development is primarily treated as an economic problem
Their governing institutions match their political culture	Indigenous culture is viewed as an obstacle to development
Decision-making is strategic	Decision-making is short term and non-strategic
Leaders serve as Nation builders and mobilisers	Elected leadership serves primarily as a distributor of resources

 

When Indigenous communities pursue the Nation building approach, institutional structures, decision rules, outcomes and metrics are reformed and re-aligned:

• decision-making is ‘proactive, long term, systemic’^[523]
• Indigenous Nation agendas ‘reflect tribal interests, perceptions and cultures’^[524]
• the decision making structure promotes accountability that ‘marries decisions and consequences’^[525]
• outcomes are measured against the Indigenous Nation’s objectives, which may not align with those of external decision makers^[526]
• Nations are ‘bearing the costs of mistakes and enjoying the rewards of their successes’, noting that ‘decision-making improves with experience’^[527]
• governing institutions are not only self-determined and self-ruling but also ‘stable, protect business enterprises and service delivery from political interference, have independent dispute resolution and provide reliable administration’.^[528]

Harvard Project researchers further observe that in the United States, every instance of sustained economic development in Indigenous communities (of which they are aware) has had the Native nation in control of the decisions on ‘development strategy, resource use or internal organisation’.^[529] To achieve these ends, the challenge for today’s Indigenous societies is to create governance structures that ‘still resonate with deeply held community principles and beliefs about authority but which also meet contemporary needs’.^[530]

Research in Australia, such as findings of the ICGP and of the Indigenous Nation Building Collaboration, mirrors the Harvard Project results. Hunt and Smith conclude that:

[W]hen Indigenous governance is based on genuine decision-making powers, practical capacity and legitimate leadership at the local level, it provides a critical foundation for ongoing socioeconomic development and resilience.[531]

Jorgensen and Vivian, whose specific area of inquiry is Indigenous community political governance, find that Aboriginal and Torres Strait Islander Nations are better able to achieve their goals when they also are in control of decision-making concerning the pathway and progress toward those goals.^[532] Both sets of studies recognise the central role of ‘public spirited’ leadership in creating change and in Nation building.^[533] Further, Australian and North American research each underline the importance of legitimacy in Indigenous governance, which can be understood as a ‘cultural match’ between how political governance processes occur and how the community believes they should occur.^[534] A process controlled by Aboriginal and Torres Strait Islander peoples can, in itself, be a source of legitimacy.^[535]

(c) Comments on Nation building

The Nation building approach is consistent with the factors that I have previously set out in 2012 in relation to strengthening Indigenous governance arrangements:

• drawing on their unique governance cultures and traditions, and working from a basis of respect for, and protection of, culture
• determining what constitutes legitimacy for each community – who can speak when, for whom, to whom, and regarding what? This includes ensuring the vulnerable within communities are represented and have a voice
• establishing processes:
  • for the community to participate in decision-making to determine priorities and aspirations
  • for engaging with the broader governance environment
  • that ensure accountability to community
• incorporating what communities decide regarding legitimacy and representation into the structures and functions of community organisations
• insisting on the community governance culture being respected in relationships with other parties in the Indigenous governance environment.^[536]

A crucial aspect of Nation building is that the decision making control is in the hands of the Nation. As discussed above, the research from both Australia and the United States shows that the more control that is given to the Nation, the more effectively sustainable development is achieved.

In addition, I urge Nations who are developing their processes of governance to use the Declaration as a framework. Relevantly, art 18 of the Declaration clearly sets out the importance of Indigenous governance:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.[537]

Further, art 21(1) of the Declaration establishes that Aboriginal and Torres Strait Islander peoples have the right to ‘maintain and develop their political, economic and social systems or institutions’. In terms of the level of control that should be divested to our peoples, the Declaration is clear:

Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.[538]

Before adopting and implementing new policies or legislation that may affect our peoples, government has an obligation to consult and cooperate in good faith with Aboriginal and Torres Strait Islander peoples through our own representative institutions to obtain their free, prior and informed consent.^[539] It can be seen that Nation building is an important means of giving effect to the Declaration.

The Declaration is founded on the principles of self-determination, participation and free, prior and informed consent, respect and protection of culture, equality and non-discrimination. While it is likely that Nations will base their processes on these foundational rights, explicitly doing so can only lead to better and more effective governance as well as increased awareness among Aboriginal and Torres Strait Islander communities of their rights. If our communities are founding local governance on the Declaration, this will also encourage governments to do the same.

5.5 Australian accounts of successful nation building

The Indigenous Nation Building Collaboration (Collaboration) approached the Gunditjmara People and the Ngarrindjeri Nation to join them as research partners. The Collaboration had identified that each possessed a ‘clear identity, a history of self-determination and capable, contemporary governing institutions’.^[540] The Collaboration undertook extensive fieldwork to inquire into, among other things, the several aspects of the two Nations, namely their:

• formal and informal institutions
• decision making and dispute resolution processes
• interactions with other Australian governments
• protocols and co-management arrangements
• opportunities for economic development.

Jorgensen and Vivian contend that the Gunditjmara People and Ngarrindjeri Nation present outstanding examples of Aboriginal Nations which are in the process of creating institutions of their own design to govern their communities.^[541] These institutions allow the Gunditjmara and Ngarrindjeri people to address a broad set of issues, expand the exercise of their power and achieve their major goals, instead of being restricted to the limits of an organisation or corporation.

These efforts also demonstrate that Aboriginal governing systems are being used to shape the nature of dealings between Indigenous and non-Indigenous governments. Relationships that are formed between Nations and governments through this process are based on mutual respect; the Nation’s values become ‘integral to these partnerships’.^[542] Finally, Jorgensen and Vivian note that both Nations are outstanding innovators, having adopted markedly different strategies and institutions to achieve their ambitions.

The following accounts of Ngarrindjeri and Gunditjmara governance are extracted (footnotes omitted) from the as yet unpublished Jorgensen and Vivian paper.

 

The Ngarrindjeri have, in persisting with governance and land claims in the face of unfounded attacks on their credibility and legitimacy, proven that nationhood based on cultural authority can build resilience and reinforce collective strength.

The Collaboration also considered the governance structures of the Gunditjmara People. A significant feature of the Gunditjmara People is that they have separated service delivery bodies from decision making bodies. Interestingly, this shows an aspiration for greater control over service delivery, but as ‘distinct from core nation business.’^[543]

 

(a) Similarities between the two accounts

Both Nations had to respond to the issue of cultural match and legitimacy. Jorgensen and Vivian explain:

Careful consideration was given to appropriate structure. For the Ngarrindjeri this involved the acceptance of an interim structure that accommodated the political realities of the time – both Australian and Ngarrindjeri. For the Gunditjmara, this involved rejecting imposed principles of ‘corporate governance’ that many believe contributed to the failure of a previous community organisation, in favour of principles of Gunditjmara governance.[544]

Interestingly, both Nations seek to govern under one body, which in each case is a structure that is a continuation of the ‘collective political identity’ that existed prior to invasion, modified to suit modern governmental demands.^[545] This research suggests that as the effectiveness of their governing structures increases, so will the political legitimacy of those structures and their appeal to diverse constituencies.

There are other similarities between the two Nations’ governance. For example, control is important for both nations: ‘As one Ngarrindjeri Elder explained, “We just find that things work better when we do it ourselves.”’^[546] Other similarities identified by Jorgensen and Vivian include:

• Both Nations have forms of dispute resolution; at this time, these mainly deal with matters of cultural concern.
• Each Nation benefits from clear sighted, public spirited leadership, potentially at great personal cost, and seek and follow expert advice.
• These Nations are reframing the negotiation space with non-Indigenous governments and are entering into partnerships that privilege their values and concerns.
• They have remarkable, self-reflective processes of strategic planning that build incrementally toward long term goals, which are achieved, in part, through the creation of mutually beneficial relationships with non-Indigenous people.^[547]

A factor that may have affected the success of these governing structures, according to Jorgensen and Vivian, is that despite the impact of colonisation, the majority of Ngarrindjeri and Gunditjmara populations have ‘continued to live on country, or were directly connected to country through family relationships’.^[548] However, they also hypothesise that political governance is possible for a range of Aboriginal and Torres Strait Islander communities and collectives in Australia.

These accounts of Indigenous political governance show that Nations are capable of creating and implementing creative governing structures that are culturally relevant and successful at achieving the aims of their peoples with minimal governmental interference. The Gunditjmara People and Ngarrindjeri Nation are leading examples of ‘self-identifying political collectives, each of which is in the process of institutionalising a governing system to better undertake responsibilities for country and for what occurs within its borders’.^[549]

(b) Commentary on the accounts of Nation building

I believe these accounts are excellent examples of Nations whose governance remains culturally tailored (and therefore, legitimate to our peoples) while fulfilling the demands of modern, colonial society. Notably, both have done so without the intervention of government.

I look forward with great interest to the future findings of the Indigenous Nation Building Collaboration, and I thank them for undertaking this important work.

While these Nations have not explicitly adopted the Declaration as their framework for governance structures, it is clear that principles of the Declaration are reflected in each system. For example, transparency and free, prior and informed consent have been identified by the Gunditjmara People as principles central to their Indigenous governance.

These examples also show that Nations can use Indigenous governance to achieve the rights set out in the Declaration. The Ngarrindjeri Regional Authority has successfully secured funding, recognition of Ngarrindjeri interests in government planning mechanisms, and entered into partnerships with a range of actors with a view to realising the rights of their people.

As we have seen, Nations are not necessarily governing themselves in identical ways. There is not a ‘one size fits all’ model – it is up to Nations to decide. Decisions around matters like where funding comes from and how services are coordinated should be decided by each Nation.

But it seems a natural consequence of increased Nation building, and therefore stronger and more organised Nations, that they might come together on a national level to resolve disputes between Nations and to advocate to the Australian Government on issues that impact upon all Nations. Importantly, Nations have cultural authority, and so any national decision making body founded by and representative of Nations will also have cultural authority.

I will now discuss how Nations have already begun to organise in this way, by creating an Assembly of First Nations.

5.6 Voices of Nations, not just national voices

Alongside the Nation building efforts, such as those mentioned in the accounts above, the concept of an assembly of first Nations peoples has been the subject of an ongoing discussion for many years.

(a) Background to the Assembly of First Nations

Mr Tony McAvoy, a Wirdi man from Clermont in Central Queensland, leading Aboriginal barrister and respected advocate, first publicly presented the idea of an Assembly of First Nations (the Assembly) for discussion at the National Native Title Conference in Alice Springs in 2013.^[550] I will use the language ‘First Nations’ to describe the Assembly in this Chapter, however it should be noted that the particular language to be used is still being debated.

In his presentation, Mr McAvoy argued the time is right for this discussion because of the work being undertaken around Nation building, and the emergence of the Prescribed Bodies Corporates (PBCs) resulting from native title settlements. These have provided a degree of certainty around membership and boundaries upon which Nations can be built. As at 23 June 2014, there were 127 registered PBCs nation-wide.^[551]

He further observed that although there was a need for it, this increased sense of local nationhood has never resulted in the establishment of a national organisation with cultural authority.

The presentation received widespread support, which was followed by a side event. There was unanimous endorsement to form a working group to develop this concept further.

(b) Progress towards establishing an Assembly of First Nations

At this year’s National Native Title Conference in Coffs Harbour, Mr McAvoy presented another proposal which encapsulated the work that had been done in the intervening year, including an Interim Charter of the Assembly of First Nations (the Interim Charter).^[552]

Mr McAvoy’s presentation advocated that the similarities between First Nations – in their governing systems, cultural practices and shared history of colonisation – far outweighed the differences to provide a solid foundation for collective advocacy.

As such the Assembly should be based on the recognition that First Nations have continued to exist, governed by legal systems which have changed over time but have their origins ‘rooted in the spiritual and ancestral connections with their lands and waters’.^[553]

This view is supported by the work undertaken with the Indigenous Nation Building Collaboration (see above discussion of this work). It was agreed that this project will provide general direction to Nations as they go about their establishment and as such was integral to the development of the Assembly.

Mr McAvoy further suggested, as a starting point, that the purpose of the Assembly of First Nations would be to:

1. ‘Promote, advocate and develop mechanisms’ for issues such as, recognition of each First Nation and its citizens, just and equitable settlement of historical and present day grievances and ongoing dialogue and engagement between the First Nations, and between the First Nations and all levels of the Australian government and industry.

1. Develop and facilitate the development and implementation of mechanisms to achieve the aspirations of the members of the Assembly of First Nations and the purposes set out in the Charter of the Assembly of First Nations. ^[554]

It should be understood that while a significant amount of work has been done around the building of nations, as articulated above by the Indigenous Nation Building Project, not much has been done on the concept of an Assembly to bring these Nations together at the national level.

Therefore it was not surprising that much of the discussion at Coffs Harbour centred around a number of fundamental issues with agreement finally reached on the following:

• that an Assembly of First Nations concept was worthy of further development
• the Interim Charter is a good starting point
• membership should be made up initially of Nations, be they self-identifying (such as the accounts above of the Gunditjmara People and the Ngarrindjeri Nation) or emerging from PBCs or any other local development process
• the development of the Assembly would be guided by Aboriginal and Torres Strait Islander individuals, Nations and organisations
• the Assembly should be developed independently of government funding
• the development would be over the longer term, five to ten years, and would be an iterative process, that is, we learn as we go.

Importantly, it was also recognised that the national level is crowded and sometimes highly contested with national bodies representing sector interests such as the National Community Controlled Health Organisation (NACCHO) in health and the National Aboriginal and Torres Strait Islander Legal Service (ATSILS) in justice, advisory bodies such as the Indigenous Advisory Council, and representative bodies such as the National Congress of Australia’s First Peoples.

The development of the Assembly concept was not about replacing or usurping the role these bodies play, nor is it about competition. The Assembly is being pursued with the cultural authority of Nations at its foundation, something that has not been achieved at the national level before.

Given that the development of the Assembly is a long term endeavour, there will be adequate time to work out its own place over the next five to ten years including where it fits amongst the bodies mentioned above.

In any event, commitments were made at the Native Title Conference to come together again at next year’s conference to address these issues, endorse the Charter of and establish the Assembly of First Nations, with a view to holding the first Assembly in 2016.

To work on the matters mentioned above, a Steering Committee made up of representatives of Nations, each State and Territory jurisdiction has been established.

Finally, it was agreed that the development of the Charter and the establishment of Assembly of First Nations would be guided by the principles set out in the text box below.

 

The first meeting of the Steering Committee was held on 28 August, and will continue to meet with a view to preparing a research brief, identifying and making initial contact with key stake holders and developing a communication strategy between the participants, the Working Group, the Steering Committee and key stakeholders.

5.7 Conclusions and recommendations

I am heartened by these developments – of Nations governing themselves and also coming together as a national Assembly – because this shows Aboriginal and Torres Strait Islander peoples taking control of our destiny, and accepting responsibility for leadership and tackling the difficult issues. This is the true form of self-determination, as opposed to looking to government to provide a solution.

Of course, that is not to say that government has no role in Indigenous Affairs. We do not have the resources to achieve sustainable development on our own, due to colonisation and past discriminatory policies that have stripped us of our power, our land, our children and our wages.

Government has a crucial role to play in fostering reconciliation and healing our country. On a practical level, we rely on government to engage with us, consult us, invest in us, respond to our needs and to build tolerance and respect for our cultures. In many ways, the government has power over Aboriginal and Torres Strait Islander peoples and it is only when that power imbalance is renegotiated that our peoples have a real chance at changing their futures.

(a) Government and Nation building

Vivian and Jorgensen suggest that perhaps ‘the greatest hurdle for governments is recognising that success is most likely achieved when the Indigenous governance building process is under Indigenous control.’^[556] This echoes my comments in 2012, when I called for a new, genuine power-sharing relationship to be negotiated between governments and our peoples, which necessarily involves the governments committing to relinquishing some of their power.^[557]

On a local level, the Australian Government should commit to supporting and facilitating Nation building. The research I have presented in this chapter shows that Nations who govern are in the best position to achieve sustainable development in their communities. I repeat here my message from 2012: that the governance of governments is the major impediment to Aboriginal and Torres Strait Islander peoples developing and sustaining our own governance arrangements.^[558] There are at least 127 registered PBCs - that is, Nations formally recognised by judicial processes, or in the process of land claims.^[559] I repeat my call in the past to adequately provide PBCs with sufficient funding levels to meet their administrative, legal and financial functions. There are also many Nations who are not yet formally recognised or as developed in terms of organisation and leadership.

The Australian Government should be looking at ways that they assist Nations in their quest to self-govern, and also looking at ways that government can devolve power to Nations who are already self-governing. This may require looking into ways to build capacity, providing resources, supporting research of Nation building, reducing the administrative burden of government and designing programs and policies in a way that allows the greatest flexibility for implementation at the Nation level.

(b) Government engaging with Nations

In Chapter 1, I referred to the creation of the Indigenous Advisory Council (IAC), the defunding of Congress and the continuation of the Empowered Communities Initiative after the federal election. At first glance, the political environment seems saturated with bodies formed to engage Aboriginal and Torres Strait Islander communities with government.

While I welcome the government establishing and engaging with groups such as the IAC, that group is not representative of Aboriginal and Torres Strait Islander peoples. The membership of that group is selective. The IAC members comprise both Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians, selected by the Prime Minister following consultation with the Minister for Indigenous Affairs.^[560] It is essentially a policy advisory group that is concerned with the governance of government^[561] at the national level.

Empowered Communities is a region-based representation model, including members from service providers, Indigenous leadership sectoral interests such as health, employment, education.^[562] Empowered Communities is currently finalising their reform proposal, but their purpose as currently articulated is to share best practice and develop a policy reform agenda for Aboriginal and Torres Strait Islander policy.^[563] In contrast, the Assembly of First Nations aspires to be directly representative of Nations at a national level.

The National Congress of Australia’s First Peoples (Congress) is closer to being a truly representative body of Aboriginal and Torres Strait Islander peoples.^[564] Congress involves an elected Board of six Directors and two Co-chairs directly elected by Congress. The National Congress comprises 120 delegates, elected to three Chambers, with membership from Aboriginal and Torres Strait Islander peak bodies and organisations and individual Aboriginal and Torres Strait Islander people.

Congress aims to be representative of a diverse cross section of Indigenous polity, including participation from groups organising around and those affected by, for example, stolen generations, land claims and issues specific to youth and women. This kind of representation might be viewed as ‘issue based’ representation as opposed to ‘Nation based’ representation; there is not a guarantee that every Nation will have a delegate at Congress. Some Nations are represented in Congress, as some land councils and PBCs have opted into participating in Chamber 2 as an organisation. While there was initially a suggestion that the Assembly of First Nations might become a new chamber of Congress, this is obviously an issue that will be the subject of further discussion as the Assembly develops. In the meantime, the two bodies can continue in parallel without affecting the other’s membership base or functions, and further, complement the other’s work.

All of these different ways of engaging with government are important. It is not a matter of picking and choosing one advisory or representative body over another, but of recognising where there are gaps. Nations are the missing piece of the puzzle. Congress is needed so that individual voices are heard and for strong advocacy on particular issues, led by organisations working on those issues and by individuals affected by them. Groups like the IAC and Empowered Communities are crucial to ensuring policy formation that is sensitive to the needs of our peoples and reflective of the work happening in our regions. But the Assembly of First Nations presents - for the first time – an opportunity for the Australian Government, and local governments, to engage with a body representative of Aboriginal and Torres Strait Islander communities with cultural authority.

The Australian Government should explore ways to engage more effectively with Nations. As a first step, this involves acknowledging the decision by Aboriginal and Torres Strait Islander peoples to establish an Assembly of First Nations. The Australian Government need not be directly involved in this process – rather, the Assembly has been and should continue to be a process controlled by First Nations. The Australian Government should consider ways that it can engage with and recognise the cultural authority of the Assembly of First Nations once it becomes functional, and how the various national Aboriginal and Torres Strait Islander bodies that have been established to engage with government can work together. A holistic approach by the Australian Government – engagement processes that connect with representatives from all sectors of Aboriginal and Torres Strait Islander peoples – has the most promise for meaningful engagement and dialogue.

Recommendations

The Australian Government:

• acknowledges that effective local community governance is central to achieving sustainable development in Aboriginal and Torres Strait Islander communities
• acknowledges the Nation building efforts to date and engages with those Nations as a means of linking with local Aboriginal and Torres Strait Islander peoples
• continues to resource and support research into the concept of nationhood, such as the Indigenous Nation Building Collaboration.

 

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^[473] M Gooda, Social Justice Report 2012, Australian Human Rights Commission (2012), ch 2. At https://www.humanrights.gov.au/publications/social-justice-report-2012 (viewed 1 October 2014).
^[474] United Nations Declaration on the Rights of Indigenous Peoples, 2007.
^[475] M Gooda, Social Justice Report 2011, Australian Human Rights Commission (2011), p 106. At https://www.humanrights.gov.au/publications/social-justice-report-2011 (viewed 1 October 2014).
^[476] See discussion in Chapter 1.
^[477] Council for Aboriginal Reconciliation, Walking Together: The First Steps, Report of the Council for Aboriginal Reconciliation 1991-94 to Federal Parliament (1994), p 4.
^[478] Australian Government, About Australia - Our people, http://australia.gov.au/about-australia/our-country/our-people#Indigenouspeoplesandcultures (viewed 1 October 2014).
^[479] Council for Aboriginal Reconciliation, note 5, pp 4-5.
^[480] Australian Institute of Aboriginal and Torres Strait Islander Studies, The Day of Mourning – Background, http://www.aiatsis.gov.au/collections/exhibitions/dayofmourning/background.html (viewed 1 October 2014).
^[481] Australian Government, Bark petitions: Indigenous art and reform for the rights of Indigenous Australians, http://australia.gov.au/about-australia/australian-story/bark-petitions-indigenous-art (viewed 1 October 2014).
^[482] For background see, Australian Institute of Aboriginal and Torres Strait Islander Studies, Treaty – Barunga Statement, http://www.aiatsis.gov.au/collections/exhibitions/treaty/barunga.html (viewed 1 October 2014); for treaty text see, Council for Aboriginal Reconciliation, Documents of Reconciliation, http://www.austlii.edu.au/au/orgs/car/docrec/policy/brief/attach.htm (viewed 1 October 2014).
^[483] National Museum of Australia, Aboriginal Embassy, 1972, http://indigenousrights.net.au/land_rights/aboriginal_embassy,_1972 (viewed 1 October 2014).
^[484] National Museum of Australia, Campaigning for land rights, 1963-68, http://indigenousrights.net.au/land_rights/campaigning_for_land_rights,_1963-68 (viewed 1 October 2014).
^[485] National Museum of Australia, Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI), http://indigenousrights.net.au/organisations/pagination/federal_council_for_the_advancement_of_aborigines_and_torres_strait_islanders_fcaatsi (viewed 1 October 2014).
^[486] National Museum of Australia, The Referendum 1957-1967, http://indigenousrights.net.au/civil_rights/the_referendum,_1957-67 (viewed 1 October 2014).
^[487] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
^[488] See Mabo v Queensland [No 2] (1992) 175 CLR 1.
^[489] Wik Peoples v Queensland (1996) 187 CLR 1.
^[490] See M Gooda, 2012, note 1, pp 109-120.
^[491] This conference was held jointly by the Australian Institute of Aboriginal and Torres Strait Islander Studies and the Australian Indigenous Governance Institute on 29-30 July 2014, Canberra.
^[492] Australian Institute of Aboriginal and Torres Strait Islander Studies, Self-determination key to Indigenous governance, http://50years.aiatsis.gov.au/news/2014/selfdetermination-key-indigenous-governance (viewed 1 October 2014).
^[493] See M Gooda, 2012, note 1, pp 109-120.
^[494] M Gooda, above, p 109.
^[495] M Gooda, above.
^[496] See M Gooda, above, pp 101-105.
^[497] M Gooda, above, p 121.
^[498] M Gooda, above, p 106.
^[499] M Gooda, 2012, note 1, p 111.
^[500] M Jorgensen, ‘Editor’s Introduction’ in M Jorgensen (ed), Rebuilding Native Nations: Strategies for Governance and Development (2007), p xii.
^[501] For an overview, see M Jorgensen (ed), Rebuilding Native Nations: Strategies for Governance and Development (2007).
^[502] M Gooda, 2012, note 1, pp 93-94; Human Rights and Equal Opportunity Commission, Native Title Report 2006 (2007), p 135. At https://www.humanrights.gov.au/sites/default/files/content/social_justice/nt_report/ntreport06/pdf/ntr_full.pdf (viewed 16 October 2014); Human Rights and Equal Opportunity Commission, Social Justice Report 2002 (2002), p 41. At https://www.humanrights.gov.au/sites/default/files/content/social_justice/sj_report/sjreport02/Social_Justice_Report02.pdf (viewed 1 October 2014).
^[503] For the ICGP research findings, see J Hunt & D Smith, Building Indigenous community governance in Australia: Preliminary research findings, Centre for Aboriginal Economic Policy Research, Australian National University, Working Paper No 31 (2006); J Hunt & D Smith, Indigenous Community Governance Project: Year Two Research Findings, Centre for Aboriginal Economic Policy Research, Australian National University, Working Paper No 36 (2007); J Hunt et al, Contested Governance: Culture, power and institutions in Indigenous Australia, Centre for Aboriginal Economic Policy Research, Australian National University, Research Monograph No 29 (2008).
^[504] D Smith, Researching Australian Indigenous Governance: A Methodological and Conceptual Framework, Centre for Aboriginal Economic Policy Research, Australian National University (2005), pp 1-4.
^[505] Led by Professor Daryle Rigney & Associate Professor Steve Hemming, Flinders University.
^[506] Led by Chief Investigator Professor Larissa Behrendt, Director of Research at IHL, University of Technology, Sydney.
^[507] Led by Chief Investigator Dr Mark McMillan, University of Melbourne.
^[508] Led by Partner Investigator Damein Bell.
^[509] Led by Partner Investigator Tim Hartman.
^[510] Professor Larissa Behrendt & Dr Alison Vivian.
^[511] Professor Stephen Cornell & Dr Miriam Jorgensen.
^[512] Dr Mark McMillan & Dr Raymond Orr.
^[513] Professor Daryle Rigney & Associate Professor Steve Hemming.
^[514] Ms Faye McMillan & Ms Debra Evans.
^[515] Dr Yoko Akama & Mr Peter West.
^[516] Dr Asmi Wood.
^[517] Led by Senior Research Fellow Toni Bauman with researcher, Dr Christiane Keller.
^[518] See Australian Institute of Aboriginal and Torres Strait Islander Studies, AIATSIS Research: Governance and Public Policy, http://www.aiatsis.gov.au/research/governance.html (viewed 1 October 2014).
^[519] See Australian Indigenous Governance Institute, About us – history, http://www.aigi.com.au/about-us/history/ (viewed 1 October 2014).
^[520] M Jorgensen & A Vivian, ‘Challenging Indigenous Australia Inc: Indigenous Community Political Governance’ (forthcoming).
^[521] S Cornell & J P Kalt, 'Two Approaches to the Development of Native Nations: One Works, the Other Doesn't' in M Jorgensen (ed), Rebuilding Native Nations: Strategies for Governance and Development (2007) 3, pp 7, 19.
^[522] S Cornell & J P Kalt, above.
^[523] Cornell & Kalt, note 49, p 26.
^[524] Cornell & Kalt, above, p 21.
^[525] Cornell & Kalt, above.
^[526] Cornell & Kalt, above.
^[527] Cornell & Kalt, above.
^[528] Cornell & Kalt, above, p 23.
^[529] Cornell & Kalt, above, p 22.
^[530] Cornell & Kalt, above, p 25.
^[531] J Hunt & D Smith, ‘Understanding and Engaging with Indigenous Governance – Research Evidence and Possibilities for Engaging with Australian Governments’ (2011) 14(2-3) Journal of Australian Indigenous Issues 30, p 31.
^[532] Jorgensen & Vivian, note 48.
^[533] Jorgensen & Vivian, above, citing M A Begay et al, 'Rebuilding Native Nations: What Do Leaders Do?' in M Jorgensen (ed), Rebuilding Native Nations: Strategies for Governance and Development (2007) 275; Hunt & Smith, 2007, note 31, pp 8-12.
^[534] Jorgensen & Vivian, note 48, citing Hunt & Smith, 2007, note 31, pp 12-14, 21, 24, 27; Cornell & Kalt, note 49, pp 24-25.
[535] Jorgensen & Vivian, note 48, citing D E Smith, From Gove to Governance: Reshaping Indigenous Governance in the Northern Territory, Centre for Aboriginal Economic Policy Research, Australian National University, Working Paper No 265 (2004), p 27; S Cornell, 'Remaking the Tools of Governance: Colonial Legacies, Indigenous Solutions' in M Jorgensen (ed), Rebuilding Native Nations: Strategies for Governance and Development (2007) 57, p 73.
^[536] M Gooda, 2012, note 1, pp 118-119.
^[537] United Nations Declaration on the Rights of Indigenous Peoples, 2007, art 18.
^[538] United Nations Declaration on the Rights of Indigenous Peoples, 2007, art 23.
^[539] United Nations Declaration on the Rights of Indigenous Peoples, 2007, art 19.
^[540] Jorgensen & Vivian, note 48.
^[541] Jorgensen & Vivian, above.
^[542] Jorgensen & Vivian, above.
^[543] Jorgensen & Vivian, note 48.
^[544] Jorgensen & Vivian, note 48.
^[545] Jorgensen & Vivian, above.
^[546] Jorgensen & Vivian, above.
^[547] Jorgensen & Vivian, note 48.
^[548] Jorgensen & Vivian, above.
^[549] Jorgensen & Vivian, above.
^[550] T McAvoy, ‘Building an Assembly of First Nations’ (Powerpoint presented at the National Native Title Conference, Alice Springs, 3-5 June 2013).
^[551] Australian Institute of Aboriginal and Torres Strait Islander Studies, Native Title Research Unit, Registered Native Title Bodies Corporate (RNTBC) & Prescribed Bodies Corporate (PBC) Summary (2014), p 1. At http://www.aiatsis.gov.au/ntru/issues.html (viewed 1 October 2014).
^[552] T McAvoy, ‘Interim Charter of the Assembly of First Nations’ in T McAvoy, An Assembly of First Nations and a Treaty (Powerpoint presented at the National Native Title Conference, Coffs Harbour, 2 June 2014). At http://www.aiatsis.gov.au/_files/conferences/national_native_title_conference_2014/tony_mcavoy.pdf (viewed 1 October 2014).
^[553] T McAvoy, above.
^[554] T McAvoy, above.
^[555] M Gooda, Draft Outcomes of the Meeting to Establish an Assembly of First Nations, 3 June 2014, Coffs Harbour, unpublished.
^[556] Jorgensen & Vivian, note 48.
^[557] M Gooda, 2012, note 1, p 117.
^[558] M Gooda, above, pp 113-117.
^[559] Australian Institute of Aboriginal and Torres Strait Islander Studies, 2014, note 80, p 1.
^[560] See Department of Prime Minister and Cabinet, Prime Minister’s Indigenous Advisory Council,
https://www.dpmc.gov.au/indigenous_affairs/indigenous_advisory_council/index.cfm (viewed 1 October 2014).
^[561] M Gooda, note 1, pp 113-117.
^[562] A Tudge, Department of Prime Minister and Cabinet, ‘Parliamentary Secretary Tudge: Project launched to “Empower Communities”’, 6 February 2014. At http://www.indigenous.gov.au/parliamentary-secretary-tudge-project-launched-to-empower-communities (viewed 1 October 2014).
^[563] Cape York Institute for Policy and Leadership, Empowered Communities Proposal, http://cyi.org.au/empowered-communities (viewed 1 October 2014).
^[564] M Gooda, note 1, pp 183 - 198.