Focus: Native Title – Recreating a national Indigenous representative body
5 August 2008
In brief: One of the Federal Government's 2007 election promises was to create a new national Indigenous representative body to replace the Aboriginal and Torres Strait Islander Commission, which was disbanded in 2005. In view of this, the Aboriginal and Torres Straight Islander Social Justice Commissioner, Tom Calma, has released an issues paper. Senior Associate Robyn Glindemann and Lawyer Jess Moir summarise the paper.
How does it affect you?
- The Federal Government is currently consulting with Aboriginal and Torres Strait Islander people and representative groups on the formation of a new national Indigenous representative body.
- The formation of a new national body is unlikely to have a direct impact on a company's dealings with its local Indigenous stakeholders. However, in the longer term, this body, depending on its role and functions, could become a new national voice for policy development and advocacy on behalf of Indigenous people on issues such as native title, cultural heritage protection, employment and education. This could ultimately influence stakeholder relationships.
The Aboriginal and Torres Straight Islander Social Justice Commissioner, Tom Calma, has prepared an issues paper entitled Building a sustainable National Indigenous Representative Body – Issues for consideration (the issues paper). The issues paper was prepared in accordance with section 46C(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which says that it is a function of the Human Rights and Equal Opportunity Commission 'to promote discussion and awareness of human rights in relation to Aboriginal persons and Torres Strait Islanders'.
The issues paper is divided into four parts: the first part traces the history of national Indigenous representation in Australia; the second surveys the bodies that currently exist to represent Indigenous interests; and the third provides an overview of the arrangements that exist for representation of Indigenous people at a national level in other countries, including the United States, Canada and New Zealand, describing the key features of each and commenting on their perceived strengths and weaknesses.
The fourth section of the issues paper discusses the form that a new national Indigenous representative body (NIRB) might take, addressing the following issues:
- foundation principles;
- the functions and membership of a NIRB;
- the structure of a NIRB, including the mechanisms of representing Indigenous people at the regional, state/territory and national level;
- relationship with existing national Indigenous peak bodies, state/territory advisory bodies and governments; and
- a secure resource base for a NIRB.
The purpose of the issues paper is to initiate discussion among Indigenous Australians about the form that a NIRB might take. The issues paper expressly states that it does not intend to set out a particular model. Nevertheless, underlying presumptions and preferences emerge and the issues paper is prefaced on the basis that the need for a NIRB is understood and accepted.
The most recent national representative body, the Aboriginal and Torres Strait Islander Commission (ATSIC), was created in 1989 and abolished in 2005. ATSIC was preceded by the National Aboriginal Conference (1977-1985), the National Aboriginal Consultative Committee (1972-1977) and the Federal Council for the Advancement of Aborigines and Torres Strait Islanders.
The issues paper states that:
While ATSIC was given a broad mandate, it did not capitalise on its functions and was simultaneously blamed for problems that were the responsibility of other agencies.
The issues paper stresses that ATSIC's over-emphasis on program delivery disabled it from effectively fulfilling its broader policy development role. At the same time, mainstream bodies were not held accountable for their own program delivery failures.
A key theme that emerges from the issues paper is that a NIRB must be credible and legitimate in the eyes of both Indigenous Australians and government. The paper stresses the importance of accountability, transparency and independence. It also emphasises the need for a body that is genuinely representative and has clearly defined relationships with other relevant bodies.
Role and functions
The issues paper canvasses a range of possible roles and functions for a NIRB, including policy development and advice, scrutiny of government, involvement in law reform, co-ordination of research and information, and international engagement.
It also raises the possibility of the NIRB playing a role in mediating the interests of Indigenous people and other actors:
There is a large unmet need for mediation between indigenous people and non-Indigenous interests where one impacts upon the other.
This is most obviously the case where the current resources boom expands mineral exploration and exploitation into Indigenous areas. Native Title claims often provide the focus for mediation. They often also bring up the need to mediate between, and facilitate decisions among, different Indigenous actors in the process. (footnote omitted)
There may also be a need for mediation and facilitation between Indigenous people and government. If the NIRB was separate from government, it could offer mediation, facilitation and negotiation services directly to public and private entities (for a fee). Alternatively, the issues paper suggests that the NIRB could support or accredit third-party providers.
The issues paper expresses a firm view that the NIRB should not be involved in service delivery (subject to consultation indicating a strong preference among Indigenous people for a body that fulfils this role). In lieu of direct involvement, the issues paper suggests that the NIRB could 'influence' service delivery by engaging with local and regional organisations that are responsible for delivering programs. It also suggests that the NIRB could be involved in planning and monitoring service delivery.
The issues paper is emphatic that it would not be enough for the NIRB to fulfil a purely consultative function. Rather, it should be actively engaged in advocacy on behalf of Indigenous people.
A basic structural issue is whether the NIRB should operate at a national level or whether it ought to have state, territory or regional structures as well. The issues paper stresses the importance of engagement at regional, state and territory level, noting that ATSIC was criticised for having an overly 'top down' approach. The paper canvasses different mechanisms for achieving such representation, some formal and some informal.
In terms of the national structure, the issues paper puts forward three broad possibilities for determining the composition of the NIRB's executive:
- direct election, where individual members vote for representatives;
- delegation, where member organisations choose representatives; and
- merit selection, where a 'panel of eminent Indigenous peers' selects representatives from a pool of nominees (this is envisioned as a temporary arrangement only).
Another key structural issue is whether particular sub-groups ought to have specific representation. In particular, the issues paper identifies traditional owners, the Stolen Generation, youth and Torres Strait Islanders. A certain number of executive positions could be allocated for particular sub-groups. Alternatively, specialist advisory groups could be formed and consulted on relevant issues.
A further issue is whether there should be a requirement for equal numbers of men and women within the leadership structure. The issues paper acknowledges that guaranteeing gender equality is an important issue.
On the involvement of non-Indigenous people, the issues paper firmly states that, if the NIRB '... is to provide a uniquely Indigenous perspective then it cannot involve non-Indigenous people in its core representative structure'. However, the paper does raise the possibility of associate membership for non-Indigenous groups who could play an advisory role.
Funding and relationship with government
The NIRB may be established by the Federal Government (possibly as a statutory body) or it may be independent of government. The issues paper appears to lean toward a government NIRB: '[a]rguably, a statutory body can meet the requirements of both independence and privileged access to government'.
The issues paper suggests several ways the NIRB might have a close relationship with government, which is seen as critical to the effective discharge of the NIRB's functions. These include:
- ex-officio membership of the Ministerial Taskforce on Indigenous Affairs and the Secretaries Group on Indigenous Affairs;
- participation in Council of Australian Governments discussions;
- powers to table advice and reports in Federal Parliament;
- a role in (or influence over) one or more existing parliamentary committees; and
- a new parliamentary committee comprised solely of Indigenous Australians, with full parliamentary powers, elected at the time of the general election.
If the NIRB is a government body, it would be funded by government. If it is a non-government body, it may still receive government funding. However, the issues paper notes that government funding may compromise the body's independence, stating that '[i]t seems inescapable that an organisation wishing to be substantially independent of government will need to raise at least some of its income elsewhere'. The issues paper identifies charitable donations, membership fees, and proceeds raised from the sale of products and services as possible alternative funding sources. It also discusses the possibility of a foundation fund, but expresses concerns about the limitations of that funding model.
Aboriginal and Torres Strait Islander people are invited to attend consultation meetings being run by the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs in every state and territory in August 2008. These meetings will be held in major cities, as well as more remote locations such as Ceduna, Kalgoorlie, Dubbo and Mt Isa.
Written submissions will be accepted until 19 September 2008. For more information, go to the Department of Families, Housing, Community Services and Indigenous Affairs' website.
- Ben ZillmannPartner,
Ph: +61 7 3334 3538