THE DILEMMAS OF THE
Representing constituents and speaking for country
The promising and bold expression, ‘the Indigenous leadership’ hides a multitude of ambiguities and is often used to describe individuals who differ greatly in terms of the nature and source of their power and influence.1 In this chapter the expression is confined to mean the official ‘Indigenous leadership’ in the context of native title. For most of the history of the NTA, the formalised Indigenous leadership was constituted by the Aboriginal and Torres Strait Islander Commission supplemented by a number of peak-level ‘native title working groups’. However, in 2005 the abolition of ATSIC was followed by the establishment of two new bodies, the National Indigenous Council and the National Native Title Council. Among the Indigenous leadership, lines of authority and mandate always remained contested and ambiguous, a phenomenon of varying voices and shifting spaces. In the politics of native title, the locus of Indigenous power proved elusive and contextual, and the omnipresent question of ‘who speaks for the blacks’ was incapable of an unconditional answer. Tensions between different kinds of Aboriginal representation are an enduring theme in Indigenous affairs in Australia.
Few things have given rise to more strife in Aboriginal affairs in the last 25 years than the attempts of governments to insist on Indigenous Australians working through representative, accountable organizations. People of European background treat such bodies as a universal norm, for they are heirs to a long struggle to develop representative institutions to wrest power to make binding community decisions from monarchies and oligarchies.2
Disjunctions existed between the elected authority of ATSIC politicians, the executive power of Indigenous government appointees and public servants, NTRB leaders and Aboriginal men and women of high degree exercising culturally based clout. Whatever else can be observed about ATSIC, it was a top-down creation with ultimate facility and funding depending on the imprimatur of government. The democratic structure of ATSIC was mandated in statute and was always at odds with traditional law and custom, which necessarily privileged those with cultural authority to speak for kin and country.3 According to anthropologist Gillian Cowlishaw, seeking a position with ATSIC offered
access to a new social identity . . . Well paid jobs, social esteem and public respect entirely reshaped many individuals’ lives at the same time as they created divisions within communities. An ATSIC representative, a board and committee member . . . would find themselves in an invidious position. Kin networks are not only affective and symbolic but entail responsibilities which readily take priority over responsibility to the state . . . Local organizations thus became a fraught domain of complex and tense social action.4
Although the ATSIC zones and regions were to some extent designed around traditional cultural boundaries, the organisation was not ‘organic’ and exercised no customary legitimacy within Indigenous society, making local rivalries endemic. The uneasy power relationships which existed were complicated further by the extent to which individuals could exercise multiple roles, creating dynamic tensions that spilled promiscuously across organisations and circumstances.
Despite the complex undercurrents and with various exceptions, the Indigenous leadership was largely able to maintain public unity. Representations were generally made, either implicitly or explicitly, on behalf of ‘Indigenous (or Aboriginal) People (or Peoples)’ (or sometimes ‘traditional owners’) and comparatively rarely received challenge from any nonconforming voice. Such dissentients as became heard were mainly confined to the level of the local newspaper. Indeed, on the face of it, the position of the Indigenous leadership in relation to native title might be thought to be quite clear and readily amenable to political solidarity. On closer inspection, though, the confused patterns of mandate and authority are expressive of other complexities. The Indigenous leadership routinely supported and promoted native title, but that advocacy was expressed in varying ways over time, and meant diverse things to different people, all on shifting grounds. The breadth of significance attached to the expression ‘native title’ as described in Chapter 1 meant that the focus of Indigenous advocacy was not always plain or self-evident. Further, even if ‘native title’ was being defended in the narrow doctrinal sense of the term, there were still multiple (and sometimes inconsistent) reasons why the law might be thought to be, or endorsed as, a good thing. Despite the universalising tendency of the verbiage, there was never an unqualified and singular ‘Indigenous position’ in support of native title, but rather a variety of rationales determined by a range of factors, including external political and strategic considerations, as well as differences in ideological proclivity. Although the contradictions were seldom exposed, the Indigenous leadership advocated for native title on a range of bases that could oscillate radically.
ATSIC, NIWG , QIWG and WAANTWG
ATSIC was established by Bob Hawke’s Labor government in 1990 as a statutory body designed to enable a form of limited ‘Aboriginal and Islander self-management’ in a manner that was to be both ‘effective and accountable’.5 ATSIC divided Australia into a number of Regional Council areas to decide on local priorities and larger zones that returned Commissioners to a national board, presided over by a chair. The first two Chairpersons of ATSIC, Lowitja O’Donoghue (1990–96) and Gatjil Djerrkura (1996–2000), were appointed by the Commonwealth, while the third and last, Geoff Clark (2000–04), was elected from among the Board of Commissioners. At regional, state and national levels, the elected arm of ATSIC was assisted by a substantial bureaucracy of Commonwealth public servants initially drawn from existing government agencies.6 Only Indigenous people registered on the Commonwealth electoral role were permitted to vote and participation was voluntary, with actual turn-out estimated to average around 20–25 per cent of the total eligible population.7 ATSIC could only ever exercise a highly contingent form of independence from the federal government. As Minister for Aboriginal Affairs, Gerry Hand, told the House of Representatives at ATSIC’s birth, the body’s power was entirely ‘derived from legislation’ and was entirely ‘accountable to the Minister’ and Parliament.8 ATSIC was sometimes held out as an exercise in ‘self-determination’, but in truth the organisation’s fate and funding remained always at the caprice of the Commonwealth.9
Native title was seen to herald a new ‘operating environment’ for ATSIC, but the only statutory function specifically provided to the national body under the NTA was a discretionary power to provide financial assistance to native title representative bodies.10 Although native title program funding was quarantined from other areas of expenditure, in years when ATSIC had a surplus, the Board of Commissioners could exercise discretion to allocate extra money to NTRB programs and often did.11 More amorphously, the Commission also exercised responsibility for broad-based advocacy in relation to native title pursuant to a general statutory mandate to represent the interests of Indigenous people.12 A third function undertaken by ATSIC was to provide advice to the Commonwealth Minister in relation to the operation of the NTA. ATSIC’s Annual Report 2000–2001, for example, noted that the organisation had ‘played a major role in advocating an Indigenous position’, which ‘involved . . . provision of advice to governments; participation in interdepartmental committees; [and] maintaining constructive working relationships with relevant government and non-government bodies’.13 The Commission was cast in the role of interlocutor between Aboriginal and Torres Strait Islander people and NTRBs on the one hand and the federal administration on the other. It was the fate of ATSIC to be perpetually caught in the middle, sometimes accused of being ‘just another government agency’ yet simultaneously trying to pursue the particular interests of its constituents, often against the tide of a broader Commonwealth agenda.14
More informal than ATSIC were the various peak bodies brought into existence to lobby on native title issues: the National Indigenous Working Group (NIWG), the Queensland Indigenous Working Group (QIWG) and the Western Australian Aboriginal Native Title Working Group (WAANTWG). All of the working groups included representatives from both NTRBs and ATSIC, while NIWG also incorporated representatives from certain other agencies.15 In each case the impetus for the establishment of the working group was three-fold. First, the ambiguous nature of ATSIC in relation to native title meant that, without augmentation, it was regarded as an unsuitable representative by the leadership of some NTRBs who craved a more direct and independent collective line to government. Second, the absence of an overall peak body for NTRBs and the diffusion of jurisdiction among a number of rep bodies in Western Australia and Queensland in particular meant that it was strategically advantageous, both nationally and in those two states, to establish some level of coordination. Third, the specific imperatives for cooperative action were various clear and present dangers that emerged at both state and national level insofar that the advances achieved in Mabo and the original NTA were at risk of being legislatively undone: the WA government’s attempt to extinguish all native title by legislation in 1993 precipitated the formation of WAANTWG,16 the election of the Howard government in March 1996 prompted the establishment of NIWG17 and QIWG was hastily set up when the Labor administration led by Premier Peter Beattie proposed to implement certain state-based reforms.18 All three working groups received ATSIC funding to operate.19
The vexed question of coordination
It was always conventional wisdom that ‘coordination and funding of claims on a state, and preferably on a national basis’ would feature as part of any sensible strategic approach by the organisations representing native title claimants.20 A country-wide effort would presumably have involved the selection and pursuit of the most promising test cases run by top counsel, as well as careful benchmarking of negotiated outcomes, complemented by horizontal integration between NTRBs sharing accumulated experience and the systematisation of precedents. Ultimately, though, the system was not conducive to a synchronised approach and hopes of national coordination were never fully realised. Centrifugal concerns and the realities of the distribution of decision-making power largely overcame centripetal aspirations. The result was a system driven by local needs and pressures, subject to a limited degree of broader dialogue generally in response to government. Decisions on priorities and funding at a national level invariably trailed events, rather than dictated them. In practice, the cases that set precedents were rarely, if ever, chosen after some preliminary process of state or national evaluation, but rather ‘followed the fact’ of individual actions having been initiated by particular claimants or rep bodies.
It is not clear that the Commission ever understood the extent of its own operational frailty, often making rhetorical claims well beyond the organisation’s actual capacity. In its Annual Report 1995–1996, for example, ATSIC indicated that it would seek ‘better prepared and researched claims being lodged and processed’ and ‘a significant advance in the progress’ of applications, both of which, though laudable objectives, were well beyond the Commission’s volition.21 Again, in 1997–98, ATSIC included as a performance indicator the ‘number of native title agreements and determinations reached’—both matters which were very clearly outside of its control.22 In one of its last gasps in 2003–04, ATSIC increased ‘the input’ of its Regional Councils ‘into the setting of native title policy’ but apparently with little idea of what the initiative could possibly mean in practice.23 Matters were made worse by what seemed at times to be a fairly superficial understanding of the native title system among parts of the Commission. In 1996–97, for example, amidst the wild proliferation of overlapping applications in some areas, ATSIC nevertheless indicated that one of its key performance indicators for NTRBs was the blunt quantitative measure of ‘number of claims lodged’.24
ATSIC and the working groups were weak organisations in the sense that they had little capacity to bind individual NTRBs and, still less, particular claim groups to a particular position or course of action. Any potential for voluntary harmonisation of approach was undercut by the fact that the bodies that needed to cooperate to make any hope of coordination meaningful were actually engaged in competition over an insufficient and finite pool of resources. A national perspective, which contemplated allocating resources on the basis of a more global appraisal of strategic needs, was clearly not the same as the organisation-specific imperatives driving each NTRB to maximise their share of the available funding by concentrating on local priorities. NIWG, QIWG and WAANTWG competed for allocations from the same funds with the NTRBs, which also vied with each other, creating inevitable contention over the relative merits of priorities and without any clear and transparent basis for resolving the contest. Whatever the external displays of Indigenous unity and blustering about the need for intra-organisational cooperation, behind the façade was internecine competition for scarce resources.
The ‘Indigenous position’
ATSIC described its primary role in relation to native title as ‘advocating an Indigenous position’ to government and in the community at large.25