Permanent Forum on Indigenous Issues: Panel Discussion: ‘Managing Indigenous Local Governments: balancing traditions with emerging challenges’

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Permanent Forum on Indigenous Issues

Seventh Session

New York, 21 April
– 2 May 2008

Panel Discussion: ‘Managing Indigenous Local Governments: balancing traditions with emerging challenges’

Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission of Australia,

23 April 2008

United Nations Headquarters, New York, Conference Room 2

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Can I begin by thanking the Secretariat of the Permanent
Forum as well as the Division for Public Administration and Development
Management for the invitation to participate in this panel today.

It is ironic that the session is being presided over by Mr
Yates as very recently Bernie and I met back in Australia and one of the issues
that we discussed was the major challenges that are created by local government
administration in Australia for Indigenous peoples. So we will continue our
discussion here today.

Australia has three levels of government – a federal
or central government guided by a Constitution that strictly prescribes its
functions; states and territories – or provincial governments –
which exercise reserve powers and are responsible for the majority of service
delivery to Indigenous citizens of Australia; and then local or municipal
governments that deliver predominately infrastructure services to
communities.

In Australia we very much suffer from the perils of
federalism with cost shifting between levels of government, blame games and
ambiguities about who is responsible for what, and when. This has impacted
significantly on Indigenous peoples with many instances of services not being
delivered to a very high quality standard or not being delivered at all. There
is also variable quality of local government structures in Indigenous
communities which also has a significant impact on the quality of service
delivery to those communities and whether they support self-determined
development.

Across Australia we also have over 1,300 remote
communities that have predominately Aboriginal residents – and these often
have very limited formal economies. This places additional pressures and
importance on the role of local government structures.

In the time available, I am going to discuss some of the
existing local government models in Australia and the challenges and
opportunities they create for Indigenous peoples. I will also do so by
reflecting on the Declaration on the Rights of Indigenous Peoples.

Of particular relevance to the discussion are Articles 3
– 5 and 18 of the Declaration. These provide for a right of
self-determination; including a right to self-government in matters relating to
local and internal affairs, as well as ways and means for financing their
autonomous functions; rights to maintain and strengthen distinct political,
legal, economic, social and cultural institutions; and rights to participate in
decision making, including through representatives chosen by themselves.

Australia has a mix of mainstream local government
authorities which have a responsibility to provide services to, and engage with,
Indigenous members of the community.

Australia also has a number of local Indigenous Community
Council Authorities that govern identified Indigenous communities – often
remotely located. Most often these have been established as a result of reserves
or missions established by the government and churches under assimilation
regimes.

I’ll begin by discussing mainstream local government
structures – that is, councils that administer services for Indigenous and
non-Indigenous populations.

Some remote townships with majority Indigenous populations
which are serviced by mainstream local authorities are often neglected in their
receipt of local government services, land tenure issues, and land and sea
management.

There is great variation in the quality of engagement by
councils with Indigenous communities, particularly in the provision of services.

In Queensland, the Government recently conducted an
amalgamation of local government authorities across the State. This poses a
major challenge to Indigenous self governance as a number of Indigenous Shire
Councils have been amalgamated into mainstream Councils. This has the potential
to significantly affect the level of participation by Indigenous people at the
decision-making table.

Previously elected Indigenous Councils in amalgamated
regions have been reduced to advisory committees with one representative on a
mainstream Local government authority, significantly reducing the capacity to
have Indigenous community issues prioritised and sufficiently
resourced.

In the Torres Strait Islands, there were 17 Island
community councils, which have been reduced to one Council. The main issue with
this is that these communities have lost their self governance and therefore
their self determination as distinct communities.

Mainstream Local Government Authorities are however
attempting to positively engage with Indigenous peoples. Again in Queensland, 16
mainstream local government authorities have worked in collaboration with
Indigenous traditional owner groups to develop a template local government
Indigenous Land Use Agreement. This agreement provides a framework for local
governments to implement the principle of free, prior and informed consent and
develop mechanisms for effective engagement around future development
requirements of the local government authority and the needs and aspirations of
the Indigenous peoples.

These mechanisms are developed and agreed to by both
parties. Opportunities are also negotiable concerning issues other than those
related to land, including community development, training and
employment.

If I turn now to indigenous specific local council
structures. Such councils exist in various states and the Northern Territory in
Australia.

The major challenge for Indigenous Community Shire
Councils is the extent to which their responsibilities are extended well beyond
those of mainstream local government authorities. Often Indigenous Councils are
the first point of contact for all sectors of government and industry. Often the
Indigenous Community Shire Councils are responsible not only for the basic local
government services, but they become the interface for all activity and
engagement with all levels of government.

They are also required to participate in negotiations
dealing with land tenure where relevant and are expected to contribute to issues
which they are often not funded or resourced to deal with. They are required to
engage with a variety of processes, mechanisms, and legislative arrangements at
all levels of government.

Indigenous Shire Councils not only have an accountability
back to their communities responsibility but they are also often subject to
numerous government reporting requirements.

Yarrabah Aboriginal Shire Council outside Cairns in
northern Australia is an example where the Council has been successful in
maintaining their Indigenous local government authority. In order to resolve
land tenure issues and residential town planning requirements for their
community, the Council have entered into negotiations for an Indigenous Land Use
Agreement, where traditional owners will have the opportunity to give their
free, prior and informed consent to lands allocated for accommodating the
residential needs of their Indigenous residents. As part of this process the
Council has also been in negotiations with the State Government to establish a
99 year lease over lands in the township area with the Aboriginal Shire Council
maintaining control of the lease rather than the Government or some other entity
controlling the lease.

This is in contrast to lease provisions that have been
introduced by the previous federal government in the Northern Territory. Those
provisions provide that agreements for 99 year leases struck without consent are
still valid. such leases are controlled by an government controlled entity and
not the community.

There is one other major issue that affects indigenous
local government as it currently exists. The federal government operates a
scheme known as the Community Development Employment Projects or CDEP Scheme
– this provides a wage equivalent to participants in lieu of welfare
payments in order to undertake activities that will benefit the community. It is
intended to be an alternative to what is called ‘sit down money’ or
passive welfare.

While results of this scheme are variable nationally, a
significant issue that has arisen is local governments relying on CDEP payments
to subsidise what in other settings would be normal council services. So often,
it is Indigenous people on welfare equivalent payments self-managing sanitation,
garbage collection, maintenance of community public spaces and roads, and other
services. The problem with this is that in urban parts of Australia and
communities with predominately non-Indigenous populations, these services are
provided through fully paid employment by the local council.

So this has resulted in a lack of systematic service
delivery by some local councils for Indigenous communities. This issue is
complicated by the fact that some of these communities are on Aboriginal land
and are not subject to the payment of rates or local government taxes –
this has been the basis on which mainstream local governments state they are not
obliged to provide such services even though they still receive payments from
the federal government for service delivery to those communities.

So in this brief snapshot you can see a great complexity
where there has been cost-shifting from governments providing core services to
Indigenous people and the transfer of those responsibilities onto Indigenous
people themselves – without appropriate funding support, and without
creating sustainable economies and employment options for those communities.

Governments are responsible for delivering citizenship
entitlements to Indigenous communities but are currently not sufficiently
accountable for this in Australia. Mechanisms for participation are also
variable, and there is a need for training and other support to improve existing
Indigenous councils governance issues so that they are functional. All of
these highlight the importance of capacity building and technical assistance, as
well as including in the discussion the resource base upon which local councils
will operate – again, the existing situation in Australia is that there is
limited recognition of resource rights or sustained funding based on the first
nations status of Indigenous people which could form the basis of truly
self-determined local government structures.

The Declaration provides an important tool to re-assess
this situation and to analyse how local government structures can better support
Indigenous aspirations.

Thank you.