Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Ruth McCausland[*]
Agreement-making has emerged as a key means of engagement between Aboriginal and Torres Strait Islander people and Governments as well as other non-Indigenous groups. While Australia has no treaty or national agreement formally underpinning the relationship between Indigenous and non-Indigenous people, many smaller agreements signed in recent years relating to land, health and policy arrangements have provided a means of formalising relationships between Indigenous groups and governments, including dispute resolution and programs and services delivery. The current Australian Government has continued the focus on agreement-making in its introduction of wide-ranging new arrangements in Indigenous policy.
Shared Responsibility Agreements (SRAs) between Governments and Indigenous communities have become the public face of these new arrangements and are an extension of the Government’s broader policy approach of ‘mutual obligation.’ Under the 186 SRAs signed to date, governments have committed to providing extra funding for infrastructure or services in exchange for Indigenous community or group commitments to contribute something in return, regularly in the form of behavioural change or other actions. SRAs are not legally binding, but are described by the Government as setting out the contributions of communities, governments and others in order to achieve long-term and local level changes in Indigenous communities. Regional Partnership Agreements (RPAs) are another measure proposed by the Government to promote coordination, eliminate overlaps and gaps in government services and programs, and to meet regional needs and priorities in the wake of the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) Regional Councils. While regional representative arrangements have been recognised by the government in a number of areas around the country, only one RPA has so far been publicly announced. This article provides a critique of the development of RPAs and SRAs against a backdrop of lessons emerging from recent agreement-making between Government and Indigenous groups in Australia. It considers whether these new agreement-making frameworks introduced by Government incorporate the more constructive and effective elements of agreement-making practices with demonstrated benefits for Indigenous communities, or instead highlight some of the limitations and pitfalls for Indigenous people in such negotiations. It reflects on the implications of the Government overtly linking such agreement-making to notions of mutual obligation, and in particular the implications for Indigenous governance under the new arrangements. Finally, the article considers the case study of the Murdi Paaki Regional Assembly in NSW which highlights issues of accountability, leadership and resourcing raised by RPAs and SRAs.
Agreement-making has become the major instrument of formal engagement between Indigenous and non-Indigenous Australians in recent decades, whether as a means of resolving disputes, establishing common understandings, or delivering government programs.[1] This emerging culture of agreement-making is evident in a range of fields and jurisdictions, under a range of regimes, and in a variety of contexts and circumstances.[2] Negotiated agreements between Indigenous and non-Indigenous people have been variously referred to as treaties, lasting agreements or settlements, compacts or Makarrata, with a common meaning of resulting from direct negotiations, reaching a written and binding agreement, and placing obligations on each party.[3] Such negotiated agreements have been put forward as evidence to suggest that governments are beginning to accept the legitimacy of Aboriginal decision-making and the benefits of Indigenous governance,[4] and as providing a greater emphasis on establishing partnerships with Indigenous communities and a more effective tool of policy and administration.[5] Many Indigenous representatives and others working in the area have embraced agreement-making as a more constructive and beneficial alternative for Indigenous communities than litigation or uncoordinated policy and service delivery.[6]
The current Australian Government has rejected the notion that Australia could have a treaty with Indigenous people, asserting that treaty-making can only occur between sovereign nations.[7] The Government has also overseen a shift from the generally bipartisan support at a federal policy level for recognition of certain Indigenous rights, such as to self-determination, to a focus on the responsibilities and mutual obligation of Indigenous communities toward governments. Despite this, many academics and practitioners working in the field argue that agreement-making processes between Indigenous peoples and governments in Australia continue to contest national sovereignty by asserting and exercising Indigenous governance and customary authority, and have the effect of recognising the respective jurisdictions of the
Indigenous and non-Indigenous parties and their associated legal, political and economic relationships.[8] Despite an antipathy to the principle of self-determination for Indigenous people on the part of the Australian Government, some Government documents have acknowledged that this ‘new culture of agreement-making’ is giving Indigenous people ‘real influence and control in the affairs of state that matter to them.’9
Negotiated agreements between Indigenous Australians and Governments and other non-Indigenous bodies vary widely in terms of scope, content and enforceability. Some are legally binding; others are closer to statements of commitment or intent. Some are designed to be far-reaching, symbolic and long-term; others are more specific and short-term. Some agreements are designed to address the recognition of rights; others to guide particular service delivery or governance issues. The Agreements, Treaties and Negotiated Settlements (ATNS) Database[10] links current information, historical detail and published material relating to agreements made between Indigenous people and others in Australia and overseas. Australian agreements included on the ATNS database vary from: Indigenous Land Use Agreements between native title claimants and holders and other interested groups such as government, mining companies or land councils; to Framework Agreements that provide guidance for parties about how to approach the detail of future dealings; to Memoranda of Understanding, which vary from pre-contractual arrangements to broad statements of commitment.
It has been observed that while agreement-making has an important place in the evolving relationship between Indigenous and non-Indigenous peoples in Australia, the practical outcomes arising from such processes must be evaluated and the question of whether such agreements do indeed foster a ‘fair and just’ relationship must be considered.[11] In dealing with this question of justness and fairness, Llewellyn and Tehan specifically raise the issue of enforceability of agreements.[12] Brennan et al point out that it is difficult to achieve fair agreements that enjoy legitimacy on all sides if they are negotiated in a context of deep inequality.[13] They also state that an agreement-making model between governments and Indigenous peoples that deliberately puts to one side consideration of the constitutional nature of the relationship and the recognition of inherent Indigenous rights will leave in place a serious power imbalance; an inequality that will be compounded if insufficient attention is paid to the institutions of Indigenous governance.[14] Fox also argues that without a national agreement-making framework, or Government commitment to negotiating such agreements, the outcomes will be haphazard and may result in the signing of substandard agreements with Indigenous peoples whose rights and interests are not legally recognised and who are therefore in a more vulnerable negotiating position.[15] Such observations are particularly salient given the Australian Government’s new approach to Indigenous policy (discussed below) and, in particular, the Government’s focus on negotiating RPAs and SRAs with Indigenous communities.
In 2004 John Howard and then Indigenous Affairs Minister Amanda Vanstone announced the Government’s intention to abolish ATISC and introduce new arrangements for the administration of Indigenous affairs from 1 July 2005.[16] The wide-ranging ‘new arrangements’ introduced by the Government included the transfer of Indigenous specific programs formerly managed by ATSIC/ATSIS to mainstream government departments and agencies; the establishment of the Ministerial Taskforce on Indigenous Affairs chaired by the Minister for Indigenous Affairs and supported by the Secretaries’ Group on Indigenous Affairs; the establishment of an appointed National Indigenous Council; the creation of an Office of Indigenous Policy Co-ordination (OIPC) to coordinate services and programs; the creation of regional Indigenous Coordination Centres (ICCs); movement to a single budget submission for Indigenous affairs; and the negotiation of RPAs and SRAs with Indigenous peoples at a regional and community level. These changes marked a significant departure from the generally bipartisan approach to Indigenous policy of the past 30 years. Support for the new arrangements from Indigenous leaders included a recognition of the potential for significant innovations in the delivery of federal programs and services to Indigenous communities and in the commitment to working in partnership with Indigenous people,[17] and acceptance of the idea that the demise of ATSIC as the primary service provider for Indigenous people could bring increasing responsibility by mainstream Government departments for Indigenous disadvantage.[18] The Government’s philosophy of mutual obligation may be perceived as akin to Indigenous notions of reciprocity and as a means to move away from the destructive cycle of welfare dependency in Indigenous communities.[19] However, criticisms of the Government’s approach by other Indigenous leaders highlighted the demonstrated failure of mainstream Government agencies to deliver services to Indigenous people in a culturally appropriate or effective way,[20] and the loss of ATSIC and lack of commitment to self-determination brought Indigenous affairs back to a former era.[21] A Senate Select Committee into the Administration of Indigenous Affairs found that the Government had furthered an assimilationist agenda by dissolving the administrative structures that provided specialist, specific services to Indigenous communities. It is now more difficult for Indigenous people and the Parliament to monitor and evaluate the performance of the Government in Indigenous affairs.[22]
Since the introduction of the new arrangements, the Australian Government has negotiated overarching bilateral agreements on Indigenous policy with four State and Territory Governments, with agreements in other jurisdictions currently in the process of being finalised.[23] The agreements state that they aim to create mechanisms to promote joint planning, and improve and streamline service delivery so that appropriate services are accessible to Indigenous people. The agreements set out strategic approaches for joint and innovative action by governments in partnership with communities, and are underpinned by the Council of Australian Governments (COAG) National Framework of Principles for Delivering Services to Indigenous Australians. These principles include: sharing responsibility; mainstreaming; streamlining service delivery; establishing transparency and accountability; developing a learning framework; and focusing on priority areas.[24] These bilateral agreements also inform the negotiation of RPAs and SRAs to which State and Territory Governments are parties.
Since the abolition of the ATSIC Regional Councils, the Australian Government has been consulting with Indigenous communities in relation to the development of new regional structures. In June 2005, Indigenous Affairs Minister Vanstone announced that regional representative arrangements had been agreed to in 10 of the former 35 former ATSIC regions to:
act as the interface between communities and governments. They will help articulate community views and provide a framework for contributing to Regional Partnership Agreements.[25]
Indigenous regional representative bodies recognised by the Government were identified in Murdi Paaki, western NSW;
Many Rivers, central and northern coast NSW; the Gulf and West Queensland; Central Queensland; Cairns and district; Wunan, east Kimberley; Kullarri, west Kimberley; Yamatji, central west WA; Ngaanyatjarra, Warburton regional WA; and Nulla Wimila Kitja, north east SA.[26]
In August 2005, Vanstone announced the signing of the first RPA under the new arrangements with the Ngaanyatjarra community in Western Australia. The RPA committed all parties to ‘working together to improve essential services; develop a 20–30 year vision for the future; establish meaningful representative arrangements and reduce red tape.’[27] The Minister also noted that RPAs are to be linked to the individual SRAs being negotiated across the region.[28] This first RPA relates to 12 communities on the Ngaanyatjarra lands and a copy of this RPA is available on the Government’s Indigenous Portal website.[29] It is framed as being ‘made in the spirit of partnership and shared responsibility’ to establish the principles and engagement processes necessary to enable a range of agreements, including SRAs; to be developed through cooperation and partnership; to ensure that all parties have the capacity and capability to effectively develop agreements and their respective service or funding agreements; and to increase Indigenous peoples’ access to government at all levels of service delivery.[30] The RPA also states that it is intended to be:
a statement of the mutual intentions of the Parties and is not intended to give rise to any enforceable rights or binding obligations on the part of any Party.
This RPA resembles a broad Statement of Commitment or Memorandum of Understanding between the Government and Indigenous parties, outlining the way future negotiations about other agreements and service delivery matters will take place. The Aboriginal and Torres Strait Islander Social Justice Commissioner has noted that there are structural aspects of the RPA that should be applauded, namely the integration of Federal, State, Local and Indigenous governing structures. The RPA also:
While such structural elements are important and promising there are other elements of this first RPA that raise significant
questions. The issue of the RPA not giving rise to any enforceable rights or binding obligations is a significant one, for, as noted above by Llewellyn and Tehan, it is a crucial factor in the agreement being considered fair and just in the long term, with practical and beneficial outcomes for Indigenous people. While capacity to be flexible and responsive is clearly important for all parties given the new policy environment in which the RPA has been signed, there remains a significant power imbalance between the parties that makes it difficult for the Indigenous signatories to hold the Government to account should there be a perception that it is not living up to its commitments. Despite the reference to ensuring that all parties have the capacity and capabilities to effectively develop agreements under the RPA, the crucial question of adequate funding and support for Indigenous representative bodies has not been adequately dealt with.
Kerry Arabena notes that, at the last meeting of the Regional Council Chairs in April 2005, the parameters of the Government consultations to bring the new regional arrangements into effect were discussed.[32] Senior bureaucrats from OIPC stated that different models would be considered on a case-by-case basis, and there would be support for people coming together to have regular and ongoing meetings to work with governments on RPAs. They also reportedly noted that government would not support elections, and there would be no funding to pay for legal costs to incorporate, nor support for Regional Authorities functioning in a manner similar to the Torres Strait Regional Authority.[33] Arabena points out that what is lost in these new arrangements is an independent representative voice that can promote the engagement of Indigenous people with each other, without the involvement of government, on issues of common concern.[34] In particular, she notes that RPAs and SRAs are instead focused on forming unequal reciprocal relationships with the state, and do not reinvigorate relationships between individuals in communities. That is, all relationships under the new arrangements are about Indigenous people developing relationships with institutions; not with each other.[35]
That there has only been one RPA announced in more than two years under the new arrangements[36] may be construed as a reflection of the Government’s lack of commitment to supporting regional representative structures linking all tiers of governance for Indigenous communities. A significant gap also exists in the planning and proposals relating to urban arrangements. The 10 regions identified by Indigenous Affairs Minister Minister Vanstone in 2005 as those that included regional representative structures did not include Australia’s capital cities, where a large proportion of Indigenous people live. Until regional bodies representing the diversity of Indigenous people around the country are recognised and supported, there are reduced prospects for the RPA framework to be an effective governance mechanism.
SRAs have become the public face of the Australian Government’s new arrangements in Indigenous affairs through the significant focus they have been given in the media and in the priorities assigned to regional ICC offices. One hundred and eighty six SRAs have been signed with Indigenous communities and groups to date, and are described by the Government as including initiatives addressing nutrition, community safety, business support, skills development and a range of other community needs. In return, communities make commitments to such things as improved school attendance, better controls over substance misuse and increased involvement in youth recreation activities.[37] The Government describes SRAs as voluntary agreements made in the spirit of ‘non-legal partnership and shared responsibility’ between governments and Indigenous communities.[38] SRAs ‘set out what families, communities, governments and other partners will contribute to address local priorities and the outcomes to be achieved.’ In return for community commitment to specific actions or changes in order to achieve identified goals, the Government will provide ‘discretionary benefits’; namely funding including that previously administered by ATSIC.
The Government also states that SRAs are not about placing conditions on the delivery of essential services, nor do they ‘affect Indigenous people’s access to benefits or services available to all Australians.’[39] The negotiation of SRAs with Indigenous communities is conducted by different Federal Government departments and coordinated through the ICCs that replaced the ATSIC regional offices. Relevant State and Territory Government agencies can also become parties to SRAs. SRAs are an extension of the Government’s broader policy approach of ‘mutual obligation’, where certain groups such as the unemployed are required to ‘give something back’ in return for government assistance.
The first SRAs were negotiated as part of COAG’s Trial Sites project in various regions around the country before the introduction of the new arrangements. These Trial Sites sought to explore what change could be effected in Indigenous communities with intensive government cooperation and resourcing.[40] These early SRAs were broad statements of commitment by the communities and Commonwealth and State or Territory Governments working in those trial sites, and they identified strategic areas for action. Before the COAG trials were comprehensively evaluated, the Government announced that they would form the basis for their new Indigenous policy arrangements. In particular, the Government embraced the language and concept of SRAs, although the second group of SRAs that have now been initiated under the Government’s new arrangements are significantly different from those negotiated as part of the COAG trials. The SRAs in the COAG trial sites were negotiated between the Australian Government, the relevant State or Territory Government, and the local ATSIC Regional Council. The COAG Trial Site SRAs did not have specific funding attached to them and tended to be part of the broader planning processes for that region. They also identified a range of strategic areas for action and focused on insights to apply to future policy and programs for Indigenous communities. The more recent SRAs are generally single-issue agreements with specific and usually small amounts of funding tied to them.
The Government has been critical of Indigenous organisations that have been perceived as acting as ‘gatekeepers’ in delivering programs and services to Indigenous communities. The Government has stated that under the new arrangements it wishes to sign SRAs directly with ‘communities, families or clans’, implying a bypassing of such organisations. However, at a practical level, funding from governments committed under SRAs must be provided through incorporated organisations, such as a community council or Community Development Employment Project (CDEP) service provider. SRAs are, in effect, more akin to
Memoranda of Understanding, and require supporting funding agreements to render them fully operational. Indeed, inequality in Indigenous communities’ negotiations with governments may well be compounded unless there is appropriate support for the institutions of Indigenous governance.[41]
The parties of the 186 SRAs signed to date include those signed between Commonwealth, State, Territory and Local governments, and Indigenous communities, groups and organisations. The SRAs vary widely in terms of focus, scope, and the amount of funding provided. None are listed as having been signed in the ACT; 2 have been signed in Victoria; 7 in Tasmania; 21 in South Australia; 28 in Queensland; 39 in the Northern Territory; 41 in NSW; and 48 in Western Australia.[42] The amount of funding committed by the Australian Government varies from $3000 to Ringers Soak, Western Australia, for the ‘Activities for Young People’ program, to $2 million to the Murdi Paaki Regional Council for the ‘Improving Living Conditions’ project.[43] The majority of SRAs have been signed in remote or regional communities, with a high representation in the COAG Trial Sites where formalised relationships between government agencies and Indigenous communities pre-existed the new arrangements.
There is very little information relating to the 186 SRAs listed on the relevant Australian Government website.[44] Publicly available information is limited to the community and State or Territory in which the agreement was signed, the general title of the agreement and the date of signing the agreement.
The website does not include detail of the specific objectives, performance indicators, benchmarks, existing baseline data, community identified priorities, dispute resolution, monitoring or evaluation mechanisms.[45] In cases where the detail of SRA funding levels has been publicly released, this has not been accompanied by information about the costs of government administration of the scheme or in-kind contributions by governments or communities. The transparency, accountability and consistency of the SRA approach are serious issues.[46]
The cost-benefit analysis of SRAs was another issue raised in consultations conducted by the Centre for Aboriginal Economic Policy Research (CAEPR). The amount of time spent negotiating SRAs may not be commensurate to the value of the grants. One example involved an estimated five days work to negotiate an SRA worth under $10,000.[47] The editor of the National Indigenous Times (NIT) has pointed out that the amount of money different communities receive under SRAs:
seems to bear no resemblance to the size of the problem or the outcome sought: Rather, it seems to depend on a combination of factors including the negotiating skills of the community; the negotiating skills of the bureaucrat directly involved in the agreement; and the government department which signs the agreement.[48]
There have been further criticisms by Indigenous and non-Indigenous leaders that SRAs are variously: patronising and coercive;[49] racially discriminatory;[50] a product of an illogical connection between the purpose of the funding and the community’s commitment;[51] and a mere rebadge of existing community initiatives as a government-driven instant policy success.’[52] Such criticisms suggest that, without a national framework guiding such agreement-making, Indigenous people with little legal and political capacity may be further disadvantaged.[53]
Furthermore, although the Government states that funding allocated under SRAs is not for the purpose of funding essential infrastructure or services, what is considered ‘discretionary’ and what is a general citizenship right remains contested.[54] From the information that is currently publicly available, it would appear that essential infrastructure or services may be provided under some SRAs.[55] Requiring Indigenous people to commit to behavioural change and other actions in return for funding for services that other Australians take for granted raises the potential for racial discrimination and breaches of Australia’s international human rights obligations.
While SRAs may be a means of Indigenous communities accessing much-needed funding for services and infrastructure and indeed enjoy the general support of communities who sign up to them, significant questions remain about the implications of the different levels of power and choice faced by governments and Indigenous communities in entering into SRAs and the possible negative consequences for Indigenous communities who sign such agreements.56 SRAs negotiated to date have been single-issue, short-term, reactive agreements. While such agreements could arguably work effectively as one aspect of Indigenous service delivery, the almost exclusive focus on SRAs to date has been at the expense of strategies to address the systemic causes of complex disadvantage in the areas of health, housing and education. SRAs have been negotiated in an ad hoc fashion before the introduction of RPAs, which have the potential to provide a proper framework for identifying priorities and processes around SRA development.
Mutual obligation has been a regular refrain in welfare policy under the Howard Government. It is an approach that marks a shift from a system where all citizens are entitled to government welfare payments if they are unable for some reason to support themselves through paid work, to a system characterised by individual contractual arrangements where people receiving welfare payments must ‘give something back’ by fulfilling certain obligations set by the government.
Mutual obligation policy tends to most affect those who are most disadvantaged and disempowered in society, and often involves popular rhetoric around ‘deserving’ and ‘undeserving’ recipients of government support. The new arrangements in Indigenous policy have been accompanied by much rhetoric regarding the detrimental impact on Indigenous communities of ‘passive welfare’ and the need for greater ‘reciprocity’ between Indigenous people and governments. Such popular narratives around mutual obligation serve to shift responsibility for disadvantage from Government and systemic causes to individuals or Indigenous communities themselves. While it is clear that community-driven initiatives and strategies and Indigenous responsibility for services and programs are crucial to addressing discrimination and disadvantage experienced by Indigenous communities, this should not be used as a means for governments to abrogate responsibility for adequate and appropriate funding, support and accountability.
The conditions produced by mutual obligation policy become justified in terms of a kind of ‘social contract’between the state and certain groups of citizens.[57] The implication is that by accepting the ‘discretionary benefit’, Indigenous communities have consented to the conditions of a contract that will enable two parties to mutually benefit from the agreement. Yet critics have questioned how this reasoning holds up when the recipient acts not from free choice but effective coercion.[58] If Indigenous communities have no other source of funding for greatly needed infrastructure and services, how free is their choice to enter into SRAs? As Behrendt has stated, mutual obligation as it has been introduced into Indigenous policy ‘means that the Federal Government is attempting to reward those who meet standards of behaviour that the Government sets for them and punish those who do not.’[59] In the history of Indigenous agreement-making, the overt linking of SRAs to mutual obligation brings a new layer of complexity and ideology to negotiations and outcomes. There are particular issues raised by the form of mutual obligation represented by SRAs. As Sam Jeffries, Chair of the Murdi Paaki Regional Assembly has stated:
Under a Shared Responsibility Agreement, how do you commit the whole community, the Aboriginal community, essentially for ten new homes which are going to be built: it only affects ten families. So you can’t essentially commit the whole community to mutual obligation when essentially only ten families are going to benefit from it. So the process of applying this mutual obligation, it’s got too many grey areas as far as what is deemed to be mutual obligation and what isn’t. And how do you actually apply it in a more equitable way?[60]
It has become apparent that, despite the refrain of mutual obligation, the Government is not fulfilling its commitments pursuant to SRAs within reasonable timeframes.[61] Despite spending a significant amount of time on their input and fulfilling their commitments under SRAs, Indigenous parties are consistently experiencing significant delays and setbacks in governments delivering on their commitments. Given the apparent lack of provision for the comprehensive and independent monitoring or evaluation of SRAs, Indigenous communities have little recourse. This raises questions about the possibility that it will in the future be implied that Indigenous people and their organisations did not take sufficient responsibility for addressing disadvantage in their communities. Governments have little to lose from such ‘mutual obligation’ agreements, whereas communities have much.
There are particular implications for Indigenous governance against the backdrop of new agreement-making frameworks. It is ironic that the introduction of the new Indigenous policy arrangements, RPAs and SRAs in particular, rely on representative Indigenous organisations at a time when such organisations are being effectively undermined. Research undertaken at CAEPR has found that the rapidly changing national policy and funding environment is causing considerable difficulties for many Indigenous organisations and communities. This in turn creates a negative impact on the functionality of such organisations in terms of their service delivery functions, funding capacity, management and administrative workloads.[62] CAEPR also found that organisations remain locked into increasingly uncertain program and funding arrangements administered by multiple government departments which retain separate financial authority, setting onerous accountability conditions based around single programs.[63] Despite Government discussion about working directly with ‘Indigenous communities, families and clans’,[64] in reality SRAs and RPAs require the Government to draw on these Indigenous organisations and representative structures.
TheAustralianGovernmentabolishedATSICin2005,branding it a ‘failure’ in separate, elected representation.[65] However, the ATSIC Regional Councils were a crucial party to much agreement-making between Indigenous communities and governments, and to the COAG trials in particular. The lack of such regional networks raises significant challenges for the Government’s new policy arrangements. It has been noted by Sullivan that, in order to work effectively, regional Indigenous representative networks required to be responsible for RPAs will need to confront some of the most pressing problems of authority and legitimacy in Indigenous communities. This will require active facilitation and mediation of a skilled nature that cannot appropriately be undertaken by the staff of the ICCs.[66] Potentially problematic issues of consultation and representation confront each Indigenous leader, group or organisation seeking to engage with the Government’s new policy arrangements. However, there appears to be little funding or other support available for Indigenous communities seeking to develop such networks or build capacity to the extent required for effective negotiation with Government.
Issues of accountability are raised by the mismatch between the broad direction that Indigenous policy is taking (that is, focusing attention on partnerships with specific regions, communities and families) and the availability and reporting of information at all these levels.67 Despite the Government assertion that the policy is focusing on effecting change at the local level through a partnership approach that prioritises practical outcomes, commensurate government commitment to data and evaluation mechanisms has not been evident. Communities have not been resourced or supported to gather data or information that could be used to measure positive or negative change as a result of SRAs. In fact, anecdotal evidence suggests that communities have been told not to supply information or data relating to SRAs on the basis that this information is the property of the Commonwealth Government.[68] Indigenous representatives or organisations are then placed in the position of having to decide whether or not to try to negotiate an agreement on behalf of their constituents in order to access funding, which may have negative ramifications given their inability to adequately demonstrate change which could in turn affect their future eligibility for government funding.
SRAs also require Indigenous communities, groups and organisations to spend significant amounts of energy and resources on negotiating such agreements, often with relatively little funding. Sam Jeffries has noted that his organisation needs to spend the majority of its time negotiating separate individual SRAs in order to receive Government funding leading to the view that ‘The Shared Responsibility Agreements have become the [policy] centerpiece, rather than [the Government] actually doing something about the issues.’[69]
The Murdi Paaki Regional Assembly is often held up as a positive example of a regional governance structure that works effectively within the Government’s new arrangements. Not coincidentally, the Regional Assembly formed out of the structure and personnel of the former ATSIC Regional Council, and was the COAG Trial Site for NSW. As a result, the Murdi Paaki Assembly has been involved in negotiating numerous SRAs with various levels of government since 2002. The Assembly is made up of 16 Community Working Parties representing the communities within the region. To date, the Assembly has negotiated a number of SRAs involving a total Government commitment of millions of dollars. The Murdi Paaki Regional Assembly model provides an insight into into the achievements of one regional representative body in the wake of the new arrangements, and also highlights the inherent limitations of the regional partnership and shared responsibility agreement-making approach under the new Government arrangements.
At the time when debate about the merits of SRAs first became public over the Mulan agreement, in which a community in Western Australia committed to washing children’s faces and upholding certain hygiene measures in return for Government funding for petrol bowsers, Sam Jeffries, the Chair of the Murdi Paaki Regional Assembly, publicly stated that his community would refuse to trade their rights when signing a series of agreements with the Commonwealth, NSW and local governments: ‘They will never use their citizenship rights, their basic human entitlements, to bargain for any resources out of the Commonwealth or state.’[70] The Assembly is the only Indigenous representative body that has signed SRAs recognising their community-based representational status and providing some secretariat and administrative support.
The Murdi Paaki Regional Assembly has not emerged under the government’s new arrangements, but is instead a product of longer-term planning and governance structures, including the ATSIC Regional Council model. As former Democrats Senator Aden Ridgeway has noted that the Murdi Paaki agreements:
‘are the result of experience, co-ordination and good community communication. They are not the result of glib policy phrases like ‘shared responsibility’ and ‘mutual obligation.’71
The Assembly is the result of ten years of ‘modelling, shaping, reshaping, and remodelling a representative structure’ to suit the communities of the Murdi Paaki region and their economic and social circumstances, and is ‘underpinned by the notion of community governance.’[72]
While other communities have looked to Murdi Paaki as an example of effective SRA negotiations, one Murdi Paaki SRA that was negotiated early under the new arrangements has provoked some apprehension. The SRA involved the provision of $2 million by the Australian Government for the installation of air conditioning units in 200 community-owned houses in the region. The NSW Government in turn committed to administer the funds and provide technical support for the units. As a further condition, the funding is dependent on individual communities then developing their own SRAs, and each community having members who ensure the project is working by developing technical knowledge and monitoring the units. The Murdi Paaki Regional Housing Corporation also committed to employing a coordinator to oversee the program. The longer-term outcomes of the SRA were identified as improving living conditions, increasing school attendance and decreasing incidences of family violence. Sam Jeffries has provided a rationale for linking the provision of air-conditioning to such complex, systemic problems, including such outcomes in the SRA has been noted to be disproportionate given the Government’s specific commitment, and has raised concerns about what happens if the agreements are deemed to have failed in the future, when in reality the Indigenous parties to the SRA may have little control over such indicators.[73] It has been reported that despite the community meeting its obligations under the SRA, two-and-a-half years later not a single air conditioner had been installed.[74] Although the Assembly has been recognised and lauded by Government, the Chair has also identified one of the key limitations of its new approach to Indigenous representative structures:
The Assembly has limited resources. The Commonwealth provides funding so that the Assembly can meet with government from time to time to advise it of the issues impacting on the region and its communities. The Assembly is not funded for its functions, it’s not funded to undertake advocacy, planning or policy and strategic development.
There are no funds for wages, sitting fees, legal costs, etc. Significantly, the Assembly does not have a Regional Office to support its activities. It, therefore, does not have the capacity previously available to the elected Regional Council.[75]
Jeffries has presented three critical aspects of the former ATSIC legislation that are crucial to Indigenous empowerment but not present in the new arrangements:
elected national and regional leadership by Aboriginal and Torres Strait Islander people; a consistent enabling legislative framework to underpin that leadership with authority to deal in matters important to them; and effective governance arrangements involving full participation in decision-making by those for whom government programs and services were being provided.76
Without such elements, inequality and disadvantage experienced by Indigenous people will only be compounded.
While RPAs and SRAs may represent the most recent manifestations of a culture of agreement-making that has emerged between Indigenous people and governments and other non-Indigenous groups over recent decades, the evidence to date suggests that these agreements represent a new and concerning direction that does not appear to be based on evidence regarding the most effective and equitable negotiation outcomes for Indigenous communities. In particular, the intersection of such agreement-making with the Government’s approach of mutual obligation and bypassing of many existing Indigenous representative organisations under the new Indigenous policy arrangements brings a new layer of complexity and ideology to an already imbalanced negotiating table. RPAs and SRAs will not be fair and just unless they are underpinned by Government recognition of Indigenous rights, accompanied by support for institutions of Indigenous governance, and developed within a national framework to ensure consistent outcomes for communities operating in a variety of legal, political and cultural contexts.
* Ruth McCausland is a Senior Research Fellow at Jumbunna Indigenous House of Learning, University of Technology Sydney.
[1] David Llewellyn and Maureen Tehan, ‘“Treaties”, “Agreements”, “Contracts” and “Commitments” – What’s in a Name? The Legal Force and Meaning of Different Forms of Agreement Making’ (2005) 7 Balayi: Treaty 6.
[2] Marcia Langton and Lisa Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’ (2003) 8(1)
Australian Indigenous Law Reporter 1.
[3] Jo Fox, ‘History of Negotiated Agreements in Australia’ (2005) 7 Balayi: Treaty 41.
[4] Ibid.
[5] Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams, Treaty (1st ed, 2005) 39.
[6] Marcia Langton and Lisa Palmer, above n 2.
[7] Sean Brennan, Brenda Gunn and George Williams, ‘“Sovereignty” and its Relevance to Treaty Making Between Indigenous Peoples and Australian Governments’ [2004] SydLawRw 15; (2004) 26 Sydney Law Review 307.
[8] Marcia Langton and Lisa Palmer, ‘Treaties, Agreement Making and the Recognition Indigenous Customary Polities’ in Marcia Langton et al (eds) Honour Among Nations: Treaties and Agreements with Indigenous People (1st ed, 2004) 48–9.
[9] ‘Shared Responsibility Through Partnership’ (Indigenous Issues Fact Sheet Series, October 2003) 1, cited in David Llewellyn and Maureen Tehan, above n 1, 6.
[10] The Agreements, Treaties and Negotiated Settlements Project (2004) Indigenous Studies Program, University of Melbourne <http:// www.atns.net.au/> at 23 October 2006.
[11] David Llewellyn and Maureen Tehan, above n 1, 8.
[12] Ibid.
[13] Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams, above n 5.
[14] Ibid.
[15] Jo Fox, above n 3, 55.
[16] Prime Minister John Howard and Senator Amanda Vanstone, ‘Subject: ATSIC’ (Joint Press Conference, Australian Parliament House, Canberra, 15 April 2004), <http://www.pm.gov.au/news/ interviews/interview795.html> at 23 October 2006.
[17] Aboriginal and Torres Strait Islander Social Justice Commissioner Social Justice Report 2004, Human Rights and Equal Opportunity Commission Report (2005).
[18] Stephen Hagan, ‘ATSIC Must be Replaced with a New Body Without “Flexible Integrity”’ Online Opinion, 28 April 2004, <http://www.onlineopinion.com.au/view.asp?article=2169> at 23 October 2006.
[19] Patrick Dodson and Noel Pearson cited in Paul Kelly, ‘Black Leaders Offer New Accord’, The Australian (Sydney), 4 December 2004. 20 Reconciliation Australia Submission 225 cited in Select Committee on the Administration of Indigenous Affairs, Australian Senate, After ATSIC: Life in the Mainstream? (2005) 107.
[21] Linda Burney cited in ‘Indigenous Leaders Condemn ATSIC Decision’ ABC Message Stick: Aboriginal and Torres Strait Islander Online, 15 April 2004, <http://www.abc.net.au/message/news/stories/ms_news_1088120.htm> at 23 October 2006.
[22] Select Committee on the Administration of Indigenous Affairs, Australian Senate, After ATSIC: Life in the Mainstream? (2005) xvi–xvii.
[23] See the website of the Office of Indigenous Policy Coordination (2006) Australian Government <http://www.oipc.gov.au/bilateral_agreements/default.asp> at 23 October 2006.
[24] Ibid.
[25] Amanda Vanstone, ‘Minister Announces New Indigenous Representation Arrangements’ (Press Release, 29 June 2005).
[26] Ibid.
[27] Amanda Vanstone, ‘Minister Vanstone Congratulates Ngaanyatjarra People on First Regional Partnership Agreement’ (Press Release, 12 August 2005).
[28] Ibid.
[29] Available online at Indigenous Portal (2006) Australian Government <http://www.indigenous.gov.au/sra.html> at 23 October 2006.
[30] Ngaanyatjarra Council, Australian Government, State Government of Western Australia and Shire of Ngaanyatjarra, Regional Partnership Agreement (Signed 12 August 2005) 2.
[31] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2005, Human Rights and Equal Opportunity Commission (2006) 17.
[32] Kerry Arabena, ‘Not Fit for Modern Australian Society: Aboriginal and Torres Strait Islander People and the New Arrangements for the Administration of Indigenous Affairs’ (Discussion Paper No 16, Australian Institute for Aboriginal and Torres Strait Islander Studies, 2005) 37.
[33] Ibid 378.
[34] Ibid 39.
[35] Ibid 52.
[36] The Murdi Paaki Regional Assembly has also signed an SRA that recognises it as the peak regional Indigenous community structure and provides its Community Working Parties with secretariat and administrative support.
[37] Available online at Indigenous Portal (2006) Australian Government <http://www.indigenous.gov.au/sra.html> at 23 October 2006.
[38] Ibid.
[39] Ibid.
[40] Council of Australian Governments ‘Communique’, (Canberra, 5 April 2002), <http://www.coag.gov.au/meetings/050402/index.htm> at 23 October 2006.
[41] See, eg, Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams, above n 5.
[42] Available online at Indigenous Portal (2006) Australian Government <http://www.indigenous.gov.au/sra.html> at 23 October 2006.
[43] Ruth McCausland, ‘The New Mainstreaming of Indigenous Affairs’ (Briefing Paper No 3, Ngiya Institute for Indigenous Law, Policy and Practice, 2005) 32.
[44] See Indigenous Portal (2006) Australian Government <http://www.indigenous.gov.au/sra.html> at 23 October 2006.
[45] Ibid.
[46] Ruth McCausland, above n 43, 32.
[47] Janet Hunt and Diane Evelyn Smith, ‘Building Indigenous Community Governance in Australia: Preliminary Research Findings’ (Working Paper No 31, Centre for Aboriginal Economic Policy Research, Australian National University (2006) 48.
[48] Chris Graham, ‘The Dollars and Sense of Shared Responsibility Agreements Just Don’t Add Up’, National Indigenous Times, 1 September 2005.
[49] Kim Carr quoted on ABC Radio, ‘Government Makes “Shared Responsibility” Deal with WA Indigenous Community’, The World Today, 9 December 2004, <http://www.abc.net.au/worldtoday/ content/2004/s1261373.htm> at 23 October 2006.
[50] Mick Dodson quoted in Patricia Karvelas and Amanda Banks, ‘We Are Just Saving our Kids’, The Australian (Sydney), 10 December 2004, 1.
[51] Pat Dodson and Noel Pearson, ‘The Dangers of Mutual Obligation’, The Age (Melbourne), 15 December 2004, 17.
[52] See, eg, ‘Shared Responsibility Agreements Prompt Mixed Response’ ABC Message Stick: Aboriginal and Torres Strait Islander Online, 28 May 2005, <http://www.abc.com.au/message/news/stories/ms_news_1379233.htm> , at 23 October 2006.
[53] Jo Fox, above n 3.
[54] Ruth McCausland, above n 43, 32.
[55] Ibid.
[56] Ruth McCausland ‘Negotiating Shared Responsibility Agreements: A Toolkit’ (Ngiya Institute of Indigenous Law, Policy and Practice, 2005).
[57] Jeremy Moss, ‘Ethics, Politics and Mutual Obligation’, (2001) 36(1) Australian Journal of Social Issues 1.
[58] Ibid.
[59] Larissa Behrendt, ‘Nothing Mutual about Denying Aborigines a Voice’, The Sydney Morning Herald (Sydney), 8 December 2004 13.
[60] Quoted on ABC Radio National ‘Shared Responsibility: Mutual Obligation’, Background Briefing, 12 March 2006, <http://www.
abc.net.au/rn/talks/bbing/stories/s1586975.htm> at 23 October 2006.
[61] Ruth McCausland, above n 43, 47.
[62] Janet Hunt and Diane Evelyn Smith, above n 47.
[63] Ibid.
[64] Available online at Indigenous Portal (2006) Australian Government <http://www.indigenous.gov.au/sra.html> at 23 October 2006.
[65] Prime Minister John Howard and Senator Amanda Vanstone, ‘Subject: ATSIC’ (Joint Press Conference, Australian Parliament House, Canberra, 15 April 2004), <http://www.pm.gov.au/news/ interviews/interview795.html> at 23 October 2006.
[66] Patrick Sullivan, ‘Strange Bedfellows: Whole-of-Government Policy, Shared Responsibility Agreements, and Implications for Regional Governance’ (Paper presented at CAEPR/Reconciliation Australia ICG Project Workshop, Perth, 18 October 2005) 15.
[67] John Taylor, ‘Indigenous Peoples and Indicators of Well-Being: An Australian Perspective on UNPFII Global Frameworks’ (Working Paper No 33, Centre for Aboriginal Economic Policy Research, 2006) 6.
[68] Geoffrey Scott cited in Chris Graham, above n 48.
[69] Chris Graham, ‘“Mutual’ MIA in Govt’s MO’, National Indigenous Times, 10 November 2005, 8.
[70] Cited in Meaghan Shaw, ‘No Deal on Our Rights, Group Says’, The Age (Melbourne),15 December 2004, 2.
[71] Senator Aden Ridgeway cited in ‘NSW: Murdi Paaki Shared Responsibility Agreement shows the importance of retaining ATSIC Regional Councils’ ABC Message Stick: Aboriginal and Torres Strait Islander Online, 15 December 2004, <http://www.abc.net.au/ message/news/stories/s1265947.htm> at 23 October 2006.
[72] Sam Jeffries, ‘Cross Roads in Indigenous Leadership’ (2006) (unpublished, copy on file with author).
[73] Quoted on ABC Radio National ‘Shared Responsibility: Mutual Obligation’, Background Briefing, 12 March 2006 <http://www.abc.net.au/rn/talks/bbing/stories/s1586975.htm> at 23 October 2006.
[74] Chris Graham, above n 48, 8.
[75] Sam Jeffries, above n 72.
[76] Ibid.
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