Getting the scale right

the geopolitics of regional agreements

Richie Howitt

Human Geography, School of Earth Sciences

Macquarie University ~ Sydney, NSW 2109

paper presented to a special session of the National Indigenous Working Group

Canberra, May 1997

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The shift towards voluntary regional agreements and co-management arrangements is creating a new geopolitics in indigenous Australia. Those involved are able to draw on the experience of the NT Land Councils in negotiating mining agreements and relevant international experience from Canada, New Zealand, the USA and Scandanavia. In this paper, the lessons of some of that experience is reviewed and it is argued that Aboriginal people involved in negotiating similar agreements here must critically consider the nature of the ‘regions’ that are constructed by ‘regional’ agreements. Getting the scale wrong in such agreements will undermine indigenous landowners’ ability to influence mainstream ‘regional’ development processes, or to secure a meaningful and sustainable flow of benefits from those processes.

Towards comprehensive claims settlements

In recent years, there has been considerable discussion of ‘regional’ agreements as a way of dealing with resolution of native title claims and other Aboriginal grievances in Australia. The initial discussions, drawing to some extent on Canadian practice, envisaged wide-ranging agreements covering large geographic areas such as Cape York or the Kimberleys. There has been little success in putting such comprehensive claims settlement agreements in place in Australia, and development of voluntary agreements with development interests have tended to be more limited in their territorial coverage. The number of non-Aboriginal stakeholders committed as signatories to the Australian agreements has also been generally limited, with particular problems in securing government involvement as signatories.

Given the extent to which the Canadian ‘model’ of comprehensive claims settlements has shaped the vision of what might be desirable, the lack of progress towards such comprehensive settlements in Australia might be seen as a failure of the land rights movement, and the wider movement for indigenous rights. In fact, there are specific factors constraining the transfer of the Canadian model to Australia, and I want to argue here that factors within both the Aboriginal and non-Aboriginal domains mitigate against negotiation of comprehensive agreements covering large territories, and that smaller scale agreements are in fact a major achievement of, and worthwhile target for the movement. The crucial lessons to be drawn from the international precedents, I will argue, are in the issues and topics covered, rather than the scope of their geographic coverage.

Constraints from the non-Aboriginal domain

A number of fundamental issues make negotiation of comprehensive agreements with wide territorial coverage difficult to achieve in Australia.

First, the hostility of state and territory governments to recognising a set of rights and responsibilities attaching to indigenous peoples has meant that even the extension of specified concessions, such as those conferred under the Aboriginal Land Rights (Northern Territory) Act and the Native Title Act, has been resisted. Bringing these governments into voluntary agreements involving large areas has been difficult to say the least. Not surprisingly, arguments about states’ rights, social cohesion and territorial integrity have dominated the rhetoric of governments in their responses to Aboriginal efforts to change the take a stronger position in regional affairs. It is important to acknowledge, in a period when the shift to conservative policies across the nation is a focus of so much comment, that at the state level, there has been a high degree of bi-partisan support for this sort of rhetoric. In Queensland, for example, the Goss Labor government was no more willing to step in as an advocate of indigenous interests (eg the Wik case, the Cape York land Use Agreement and the Century project come to mind) than the present Borbidge National Party government. Similarly, West Australian Labor’s record in defending and extending Aboriginal rights has produced no great legacies for Aboriginal people in that state.

Second, the nature of the commonwealth government’s involvement in efforts to put ‘regional agreements’ in place has also been problematic. The failure of the Hawke Labor government to pursue a national land rights policy in the mid-1980s reinforced the influence of the state and territory governments, and the primacy of industry and economic interests in shaping commonwealth policy in regional affairs. The balance of power between the economic portfolios and Aboriginal and environmental portfolios has meant that the thrust of commonwealth efforts has often emphasised regional economic development, rather than issues of justice, equity or sustainability in regional Australia. This has meant that commonwealth resources to support Aboriginal people in pursuing regional agreements have been difficult to access in most cases, and inadequate even in cases where some funding has been made available. In the current budgetary climate, it is unlikely that either resource or political support for innovative Aboriginal negotiations will be easily won. In addition, much of the substance of Aboriginal grievances and concerns that would be dealt with in such negotiations are related to country, resources and services - virtually all of which are constitutionally in the domain of the states and territories rather than the commonwealth. While there have been some issues on which the commonwealth has brought very substantial pressure to bear against the states and territories (eg guns, some environmental issues and some industry policies), there is no evidence to suggest that social justice for indigenous Australians is likely to be a target for similar commonwealth action.

Third, the attitudes and approaches of other stakeholders in regional agreement-style initiatives have often reflected aspects of the historical legacies of previous policy frameworks in Aboriginal affairs and regional policy. Thus, mining companies and pastoralists who have never had to ‘negotiate’ previously with Aboriginal interests are poorly equipped to accommodate the sorts of mind-shifts required to enter into voluntary binding agreements. While there is substantial evidence emerging of a ‘cultural shift’ in some of these stakeholders, such a shift remains vulnerable and problematic. When people come to the task of sitting around a table together to discuss just what go into a ‘voluntary binding agreement’, many of those chosen to represent industry stakeholders have little real background in dealing with the issues put on the table by Aboriginal stakeholders; in some cases, the very things which give an individual credibility on the corporate side undermine it on the Aboriginal side (and vice versa). In addition, when it comes to regional rather than project-centred agreements, industry stakeholders in mining, tourism, fisheries, forestry and others who rely on Aboriginal country for their prosperity must deal with the specifics of their commercial (competitive and often marginal) operations in areas of interest and concern to Aboriginal negotiators. Tackling such concerns will have competitive consequences, and may raise issues of commercial confidentiality which make open discussion and effective negotiation extremely difficult.

Issues from the Aboriginal domain

There are also issues within the Aboriginal domain, make negotiation of comprehensive agreements with wide territorial coverage difficult to achieve in Australia.

The diversity of Aboriginal interests, and the nature of the cultural landscape often means that dealing with regional level issues involves a political complexity that is difficult to deal with in practice - a complexity for which institutional support is often non-existent, despite the efforts of various Land Councils, regional councils and other representative bodies to develop a framework at this scale. For example, significant funding from ATSIC for ‘regional planning’ exercises, has largely focused on dealing with distributional issues related infrastructure almost independent of the complexities and specificities of the cultural landscape and the intricacies of regional Aboriginal politics. In terms of the process of generating ‘regional agreements’ this sort of ‘expert-oriented’, consultant-led regional planning simply fails to target key issues such as land use, economic development, cultural maintenance and environmental management. So, issues such as identifying appropriate signatories, and constructing issues on which Aboriginal signatories are able to deliver, becomes harder at the regional scales than it is at smaller, more local scales, and all but impossible to achieve using the currently available programs.

The particular geopolitics of Aboriginal rights

These factors have all made it difficult to move quickly to negotiation of comprehensive land claim settlements at the sort of spatial scale that has occurred in Canada. In developing strategies to advance Aboriginal rights through negotiation of voluntary agreements, it is important that we recognise that the absence in traditional Australian societies of wider scale political organisation equivalent to the centralised leadership of many Native American and Maori groups, produces a very different geopolitics within the Aboriginal domain. By this I mean that the specific political processes which should be recognised and empowered in efforts to advance recognition of and respect for indigenous rights, including but not limited to land rights, are built on local rather than regional geographies in most parts of Australia. They are built on clan and family structures rather than organised ‘indigenous nations’. In other words, for many Aboriginal groups, sovereignty is derived at a much more local scale within the particular relationships between people and their country, rather than in the institutional infrastructures of ‘national’ government and leadership.

This is the geopolitical reality within which Aboriginal negotiators and their support staff and resource people must be held accountable. To dismiss this in order to pursue a preferred model such as the Canadian approach, would be to jeopardise the credibility of agreements when they are finally reached.

It is quite clear that outcomes in Canada, such as the James Bay and Northern Québec Agreement of 1975, or the Nunavut and Yukon regional agreements, are products of specific historical, cultural, political and geographical circumstances that constructed a particular territory as the appropriate scale at which to negotiate specific terms of agreement and settlement. In contrast, experience in New Zealand, for example, has been oriented to two national level issues - the Treaty of Waitangi (through the Treaty of Waitangi Act 1976 and the 1986 amendments) and the reorganisation of the nation’s system of resource management (through the Resource Management Act 1991). New Zealand’s status as a unitary rather than federal state has meant the national policy commitments to recognition of Maori values and commitment to ecological sustainability as a societal goal, have been implemented without resistance from a lower level of sovereign government. Thus, in New Zealand, pursuing resolution of grievances at the level of the iwi and hapu has inevitably involved addressing a number of regional scale claims - without necessarily pursuing a New Zealand version of the ‘Canadian model’.

Australian agreements and environmental assessment

In Australia, the environmental assessment system has also mitigated against broader scale agreements by focusing attention on specific projects. In the absence of any systemic responses such as appropriate regional planning, wider comprehensive settlement procedures or cumulative and regional impact assessment procedures, project specific impact assessment has often been the most accessible means available for Aboriginal people to influence regional development processes. Despite substantial criticism, and despite moves to streamline, simplify and co-ordinate commonwealth, state and territory procedures, significant structural commitment to a project-by-project evaluation of and response to environmental impacts - including social, cultural, economic and biophysical environmental impacts on indigenous peoples - rather than development of regional and systemic responses. As a result, where Aboriginal people have some standing in decision-making processes - often as a result of statutory land rights, it must be said - their involvement is often limited to responding to somebody else’s plans, initiatives and priorities rather than constructing preferred local and regional futures. Where Aboriginal people have no such standing - in areas where statutory land rights have not been granted and where neither the common law nor the Native Title Act will deliver specific rights - the success of Aboriginal people in leveraging their way into anything even vaguely resembling a regional agreement has been even more limited.

Towards ‘regional’ agreements - what does ‘regional’ mean?

Despite these limitations, difficulties and structural legacies of past patterns of regional policies and practices, Aboriginal leaders, Aboriginal people, Aboriginal representative bodies and their advocates and supporters have persisted in targeting ‘regional’ agreements of various sorts. The persistent reference to international arenas such as Canada, where the meaning of the region in regional agreements has quite clearly involved quite large territories risks a default targeting of outcomes whose spatial scope is inappropriately large. In my reading, there is a need to deal more realistically with the geopolitics of the Aboriginal domain, and target smaller areas for regional agreements. It seems likely also that in many parts of Australia regional agreements between Aboriginal interests and other stakeholders such as mining and pastoral industries, will need to be built on prior negotiation of regional agreements within the Aboriginal domain.

It is clear that in most circumstances that Aboriginal people involved in negotiation of voluntary agreements of various sorts demand as a non-negotiable element of any such agreement some recognition of their interests in land, and related rights and responsibilities in various aspects of resource and environmental management. Within Aboriginal politics, the inability of landowners to speak for other people’s country means that any expansion of the geographical scale of regional agreements must be built on structures of direct participation and accountability to Aboriginal values, rather than non-Aboriginal patterns of representation and delegation. This restricts the scale at which settlements can be achieved until institutional arrangements which enable Aboriginal people to participate directly and accountably at wider scales are developed and supported by adequate resources.

The down side of this observation is that smaller scale agreements will tend to restrict the flow of benefits and consequently limit the extent to which Aboriginal people are empowered to address wider regional issues affecting their lives and constraining their futures. As the enormously important role played by the Northern Territory Land Councils and the non-statutory regionally-based land councils in other states suggests, there are important roles that need to be fulfilled at wider regional scales, and it is often important to mobilise high quality specialist staff such as lawyers, mineral economists, environmental scientists, anthropologists etc, that are beyond the capacity of smaller organisations to retain. In negotiating voluntary agreements about new development projects or co-management regimes in specific areas, such people are often crucial in securing reasonable outcomes. Yet trying to negotiate such agreements to cover areas as big as those covered by a whole land council and encompassing the diverse interests of the many Aboriginal organisations active in such an area will present as many problems between Aboriginal interests as there are between Aboriginal and non-Aboriginal parties.

There is, of course, no easy solution - no single correct path to follow. The struggle to build on the achievements of twenty years of legislative recognition of Aboriginal land rights to achieve meaningful and sustainable benefits for Aboriginal people throughout Australia will produce a range of approaches to regional scale settlement of Aboriginal claims and grievances. In reviewing the international precedents, it is important that Aboriginal people do not overlook the importance of bringing those precedents to bear on their own priorities, rather than seeing them as a model to reproduce here. An important part of doing this must be ensuring that the actual regions constructed in the process of such negotiations are consistent with the fundamentals of Aboriginal relationships with country, and that the scale of the agreements and the procedures involved in monitoring and implementing them is accessible and accountable to the intended Aboriginal beneficiaries.

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