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.