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Chapter 3 - Sustainability and the way ahead

Index

Introduction

Our Terms of Reference required us to look beyond the present situation and consider the way forward to achieve the objectives of the NTER—namely to provide a sustainable and better future for the Aboriginal people living in the remote communities of the Northern Territory.

Although many facets required attention, our restricted timelines limited us to dealing with only those to which we considered some priority should be given. In looking to the future, we have to understand the lessons of the past and to avoid repeating them to the disadvantage of those we seek to help.

We have concluded that many of the measures of the NTER could, if properly implemented and augmented with increased and ongoing resources, make a significant improvement to the lives of Aboriginal citizens living in the remote areas of the Northern Territory.

We have also concluded that the way in which the measures have been implemented have negated much of the good that they were designed to achieve.

In this chapter we set out our views and recommendations on the way in which some of the more institutional and structural issues relating to government administration and community engagement might be dealt with to achieve the outcomes sought by Aboriginal communities, governments and the wider Australian community.

3.1 Human rights and the Intervention

Criticisms of the Intervention have tended to focus on the explicit exclusion of the Racial Discrimination Act 1975 (RDA) and the Northern Territory Anti-Discrimination Act in the Northern Territory National Emergency Response Act 2007 and the Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Welfare Reform Act).

The two key measures identified as having possibly breached the RDA were income management and the compulsory acquisition of land under five-year leases.

The exclusion of Commonwealth legislation that was enacted to give effect to Australia's obligations at international law is a significant development in Commonwealth legislative policy. The matter was directly addressed in the explanatory memorandum to the Northern Territory National Emergency Response Act 2007.

Not surprisingly, there was a convergence among official commentaries and submissions to the Board around the fundamental principle of international human rights law that different classes of rights cannot be traded off against each other. This principle is captured in article 5 of the Vienna Declaration on Human Rights (1993).

It is important to note that criticisms over the exclusion of the RDA do not simply reflect an 'academic' debate. Throughout the Board's community visits and consultations with various organisations and representatives, it was made abundantly clear that people in Aboriginal communities felt humiliated and shamed by the imposition of measures that marked them out as less worthy of the legislative protections afforded other Australians.

These concerns were most palpable in the context of comments and submissions relating to the compulsory acquisition of land41 and the exclusion of external merits review in the income management scheme applied in the Northern Territory.42

Children, women and race

The fact that different sets of human rights are not to be traded off against one another is particularly critical in the context of addressing specific concerns in Aboriginal communities. The indivisibility and interdependence of human rights in this context means that addressing issues of violence and abuse (thus honouring Australia's obligations under the Convention of the Rights of the Child (CRoC) and the Convention on the Elimination of Discrimination Against Women (CEDAW)) cannot be done by enacting racially discriminatory measures. Indeed, the critical point to be made here is that addressing the safety and wellbeing of children, women and families requires a strengthening of human rights frameworks. Such strengthening cannot occur in the context where different categories of rights are considered to be inherently inconsistent—which is not the case.

As the Law Council and others made plain, addressing specific concerns in Aboriginal communities does not require the exclusion of fundamental human rights such as the RDA. This was also made clear in the Aboriginal and Torres Strait Islander Commissioner's Social Justice Report which identified a 10-point 'action plan' to modify the NTER to ensure compliance with human rights.

From the Board's perspective, it is critical to ensure that the fundamental issues concerning the exclusion of the RDA, the right to procedural fairness including the right to seek external merits review, the exclusion of anti-discrimination laws in the Northern Territory and the deeming of measures as 'special measures', are all matters that require immediate change. Changes to other measures, such as income management, the acquisition of land, the development of community development partnership agreements and community development plans also need to be made, but may require an intermediate period to transition from the present scheme to alternative arrangements as identified by the Board in its recommendations in chapter 3.

In the Board's view, there are no convincing arguments for excluding human rights principles and the RDA. Consistent with a key theme of the review the Board believes the re-engagement process has to be underpinned by acknowledgment of the informed consent principle and human rights provisions.

Recommendations on Human rights

3.2 Re-engagement and communication

Consultation should be from the grass roots level. The departments all start from the top down. They should go to the people first at the grass roots. People have to be taken seriously and listened to. They should get away from the mentality that they know what's best for Aboriginal people. How many times do people have to say this?

This is a quote from an Aboriginal and Torres Strait Islander Information Needs Study in 1995. It was recently used to introduce the report of review commissioned by FaHCSIA and Centrelink into communications supporting the NTER measures.

It clearly articulates the widespread sentiment found by the Review Board in discussions with Aboriginal people about the NTER.

During the course of this Review, it has been explained to the Board many times by government officials that the emergency nature of the intervention required fast-paced implementation.

The result was that it did not provide room for effective planning, consultation and meaningful engagement or understanding by the people it affected.

The Board has been asked to 'examine evidence and assess the overall progress of the NTER in improving the safety and wellbeing of children and laying the basis for a sustainable and better future for residents of remote communities in the NT'43.

It is very evident that the processes which characterise the design and implementation of the NTER were not based on a consideration of current evidence about what works in Indigenous communities. That evidence is based on both domestic and international experience from which a set of recognised principles has been distilled and which we recommend provide the foundation for future action. These principles are set out in summary form in the submission received from Reconciliation Australia but are expressed in similar terms in many other submissions received by the Board.44

The principles are:

No one has suggested that implementing these principles will be an easy task. Indeed there is wide acceptance that it will require high levels of leadership, skill, sustained effort, commitment, time and resources to see those principles translate into successful outcomes on the ground. What is equally recognised is that there is no alternative simpler set of processes that can do the same thing—not even in the short term. There is no silver bullet.

The lack of genuine engagement and communication between governments and Indigenous people did not start with the NTER of course. The scale and dimensions of that exercise certainly exacerbated the problem and has highlighted the flaws of the 'top down' imposition approach.

Our visits to communities left us with a clear impression that there has been a progressive disengagement by government agencies from Aboriginal communities. By this we mean that not only are there few government personnel located in communities but that decisions affecting the communities in a very direct way were seen by the communities to be made by unknown people 'in Canberra'. This compounds the loss of power and respect that community leaders feel, especially in the face of the Intervention, local government changes and reforms to the CDEP and Work for the Dole. The notion of engagement is a distant memory.

To move forward, government must rebuild trust and confidence as quickly as possible with Aboriginal people in the Northern Territory. The Board noted a significant number of willing participants within the communities who stand ready to engage with governments and their agencies in developing genuine and respectful partnerships. This will allow local communities to determine and prioritise their needs and to then negotiate on an equitable basis, a timely and effective response to those needs.

It is this approach that has the greatest prospect of success and will be welcomed and in time, driven, by the people most directly affected. Very few people want to go backwards. Most people the Board spoke to want to move forward and they want to do so with government. They want change but it has to occur in a way they understand and where they can be full participants in shaping the future for themselves, their children and grandchildren.

Resetting the relationship

The renewed engagement needs to fundamentally reset the relationship between governments and Indigenous people. This will require change on multiple levels.

From the top

It should start from the top with governments signalling a change of attitude, and preferably on a bipartisan basis. Some of this has begun already with the Prime Minister's Apology to the Stolen Generations and new resolutions through the Council of Australian Governments (COAG) to closing the gap on Indigenous disadvantage. It needs to quickly translate from there into all areas and levels of the bureaucracy.

The new attitude needs to redefine Indigenous people, not as problems, but positively and distinctively. It needs to focus on Indigenous people as capable and adaptive people. It needs to support the development of Indigenous people's capacity to be independent, self-managing and self-supporting. There needs to be much greater understanding of the different world views of Indigenous, cultural and regional richness and the social integrity of Indigenous families and communities.

Government ministers and agency heads must lead the way in securing attitude change—they must ensure it becomes embedded within their agencies, down through senior program managers in Canberra and Darwin who pull the strings, and out to the field staff working in communities. This will require allocating appropriate resources for change management training for people at all key levels within the bureaucracy who have Indigenous affairs responsibilities.

In the field

There were numbers of submissions to the NTER Review46 suggesting the language and delivery models from international development theory provided key concepts and terminology that could underpin developing a new approach.

If development approaches are to be adopted they must resonate with Indigenous Australians, their aspirations and their circumstances. The goals of development need to be relevant to and tackle the real challenges that Indigenous Australians face.

Government personnel working in remote Indigenous communities need to be capable of providing professional services in a cross cultural context, and governments have to be prepared to invest the time and funding in developing their people to do this.

GBMs, Community Employment Brokers, teachers, police, health workers and others all need to be part of this.

The GBMs, however, have a central part to play. To do this effectively GBMs will require a much greater understanding of community engagement principles and dynamics than was evident in the Board's visits.

Achieving this outcome will, in our view, require the introduction of comprehensive professional development and training for key personnel.

Professional development

The Board has come to the conclusion that a new professional development program should be devised for GBMs (and others as relevant) that is located in a recognised tertiary institution. Such a program should be comprehensive, result in the attainment of formal qualifications, and be backed up by appropriate on-the-job training and development on an ongoing basis. It should also involve regular short refresher and skills update courses.

The Board would suggest that the following subjects be covered:

Recommendations on Re-engagement and communication

3.3 Funding and fiscal reform

The Board is convinced that infrastructure backlogs and unmet service needs have played a major role in creating the significant dysfunction evident in many remote Aboriginal communities in the Northern Territory.

Ensuring adequate and equitable levels of funding and securing the necessary structural reforms that ensure future needs are addressed, are the essential ingredients in rebuilding the sustainability of communities and providing a platform for their future social and economic development.

Who funds what?

In Australia's federal system of government, it is the states and territories that have primary responsibility for delivering human and community services— education, health, policing, public housing and road systems, for example. Through local governments established by them, they also ensure other municipal services are provided, such as garbage collection, local roads and footpaths, parks and the like, and a number of human services too.

In the Northern Territory, local governments deliver a wider range of services than is typical elsewhere in Australia, including some on an agency basis for other governments, such as acting as agents for Centrelink and undertaking management and repairs and maintenance of housing for Territory Housing.

However, local government is significantly and structurally disadvantaged in the Northern Territory as a result of the current funding arrangements by the Commonwealth, whereby grants are distributed on a per capita basis. This means that with onesixth of Australia's land mass, the Northern Territory receives less in local government funding assistance than Geelong.

Given the low rate base in remote communities and the reluctance of successive Northern Territory Governments to rate pastoralists, these factors combined help explain the poor capacity of institutional arrangements on the ground, despite recent Northern Territory Government reforms in rationalising local government.

Apart from Centrelink payments, CDEP funding and job-search and training programs, the Commonwealth's role in service delivery is largely indirect—through the provision of grants to state, territory, local governments and Indigenous organisations to help them fund adequate levels of services.47

Notwithstanding the NTER, the previous Commonwealth Government made clear it still regarded the Northern Territory Government as being fully responsible for services in the long run.

Some of the grants the Commonwealth makes to all states and territories, known as Specific Purpose Payments (SPPs), are 'tied' to the delivery of particular state services—public schooling, public hospital services, public housing and roads especially: that is, they must only be used for those services and often with other conditions attached (for example, public hospital services are to be free of charge).

Most of these SPPs are to fund mainstream services available to all Australians, Indigenous people included. Some, however, are Indigenousspecific, such as funding for remote area Indigenous housing and education. In 2008–09 the Northern Territory Government is expected to receive about $586 million in specific purpose payments, including $57.6 million for Indigenous housing, $18.1 million for special Indigenous education and $22 million for local governments.

On a per-person basis, the Northern Territory's share of SPPs has been somewhat above the national average, partly reflecting the fact that it especially benefits from Indigenous-specific payments, given the high proportion of Indigenous people in its population.

Another key, but often overlooked, factor is that the Commonwealth is the source of significant infrastructure expenditure from its own separate programs in the Northern Territory, generally based largely on priorities and advice given to it by the Northern Territory Government.

However, the largest proportion of Commonwealth grants to the states and territories to help them fund services—more than half, in fact—are untied (general purpose or financial assistance grants), nowadays consisting of the entire pool of GST revenue collected by the Commonwealth.

These grants can be spent by the states and territories according to their chosen priorities. The magnitude of them in Australia reflects the fact that the states and territories have very limited access to tax revenues from their own sources because they are constitutionally precluded from applying taxes on goods48 (such as a GST) and the Commonwealth has retained exclusive access to income tax revenues since World War II. The Northern Territory is expected to receive about $2.4 billion as its share of GST revenue in 2008–09.

What adds a layer of complexity—and a potent source of misunderstanding—is that these untied financial assistance grants are distributed between the states and territories not on an equal per head of population basis but, rather, in a way intended to equalise the fiscal capacity of the various states and territories—that is, so that, if they chose to, they all could provide similar levels of services to their residents without imposing different tax burdens on them. The intention is that, if there are differences in fiscal outcomes (service levels per person, or tax burdens per person), they reflect outcomes of democratic processes in states and territories not the consequences of differences in their capacities to afford to deliver services.

Untied grants are distributed to the states and territories in accordance with the recommendations of the Commonwealth Grants Commission (CGC), which is required to assess what distribution would, in fact, equalise fiscal capacity. It weighs up all the factors that adversely or beneficially affect the capacity of state and territory governments to provide the current actual average level and standard of services provided by all the states and territories if they imposed the current actual average state and territory tax burdens on their people and businesses.

The CGC's assessments are complex and the details hard to follow. But what is clear about them is that they:

The fact that the CGC is not currently required to carry out any assessments for unmet service delivery needs or infrastructure backlogs, further highlights independent research findings49 that conclude most Indigenous townships or communities are currently structurally disadvantaged because of long-standing capital under investment, when compared to communities or townships of similar size in other parts of remote Australia.

Some people have argued that because the Northern Territory receives higher grants due to the cost of delivering services to Indigenous people, the Territory should be forced to spend them that way.

However, the Review Board has been advised that there is little or no prospect of the general purpose, GST-funded, grants to the states and territories becoming even partly tied to the achievement of some specific outcomes.

This argument is apparently based on the rationale that to do so would be inconsistent with the fact that those grants are, arguably, compensation for the fact that the Commonwealth has sole access to the biggest and broadest tax bases (incomes and consumption) which otherwise the states and territories could tap into and spend according to their priorities.

The Board's attention was also drawn to another structural reform option that would see a new jurisdiction of 'remote Australia' being designated purely for the purposes of needs assessment by the Commonwealth Grants Commission, and to amend the comparative assessment process to take into account capital shortfalls. The states and territories would therefore receive two allocations: one for their remote jurisdiction, and one for the balance of their state and territory. The Board is in no position to endorse or reject such an approach but would suggest that it is worthy of consideration in the context of providing greater equity and support for those living in the remote communities.

The Review Board has also noted reforms in progress through COAG to the system of tied grants which it has been advised are intended to result in more adequate funding for services to remote Indigenous communities and to address infrastructure backlogs.

In this context it will be critical to put in place significant funding measures that not only address current backlogs, but to also secure the necessary structural reforms that ensure future needs are properly addressed.

Funding on, or related to, the NTER

In this section, we present information on what has been spent on the NTER, what is currently committed to it and other communities in the Northern Territory and what might be required in future.

NTER-specific funding

Table 3 below sets out the best data available to the Review Board on what the Commonwealth spent in 2007–08 and has committed for 2008–09 and beyond specifically for the NTER. The commitments total about $1.4 billion though about $120 million (about 20 per cent) of the initial 2007–08 special appropriations was not spent, bringing actual expenditure and future commitments down to about $1.3 billion.

Apart from commitments of $223 million for future years, the Australian Government has deferred decisions about future NTER-specific funding while it receives and considers this report.

Table 3: NTER appropriation and expenditure, 2007–08 and 2008–09 ($m)
Activity 2007–08 2008–09 Appropriation
Appropriations Expenditure against col. ii
August 2007 April 2008 Total
I II III IV V VI
Employment and welfare reform 219.9 80.5 301.4 164.5 213.7
Law and order 64.6 4.0 68.6 68.5 45.4
Enhancing education 24.4 3.8 28.2 21.4 38.2
Supporting families 32.7   32.7 28.3 22.7
Child and family heath 83.1   83.1 53.4 59.1
Housing and land reform 85.0   85.0 76.0 Nil
Coordination 77.6   77.6 53.8 80.9
Total 587.3 89.3 676.6 465.9 460.1

The Review Board has had some difficulty in obtaining timely information on expenditure on the NTER. This is at least in part because there are seven different agencies involved, each with their own appropriation and acquittal processes. For an initiative with such highly interdependent initiatives, there is a real risk of failures of coordination, despite it being, notionally, whole-of-government.

The Review Board understands that there are procedures available by which a single Special Account can be created hosted by one department, accessible to all others for withdrawals and deposits. Such an account (in effect pooled funding) should be used in future and, with it, a manager responsible for overseeing the outcomes. This would be highly desirable in the context of partnership agreements where several agencies are likely to be involved. Pooling with the Northern Territory Government would also be desirable.

NTER-related funding

In addition to the funding appropriated specifically for the NTER, the Australian Government negotiated four MOUs in August 2007 with the Northern Territory Government which, while not specifically directed at the activities required to stabilise the relevant communities, are important to address some of the causes of the intervention.

Principle amoung the MOUs is one on funding for housing and infrastructure in remote Indigenous communities. $813 million of Commonwealth funding is committed over four years (2008–09 to 2011–12), and blended with $100 million of Northern Territory funding, to provide new housing, upgrading of existing housing and repairs and maintenance for many more.

The other MOUs include $100 million for delivery of primary health care delivery in remote communities, funding to assist in meeting anticipated increased demand for school places, and support for replacing CDEP with real jobs.

Future funding needs

Funding under the MOUs clearly starts to address housing and infrastructure backlogs and unmet service needs. However, they do not commit enough funds to redress it all. Precisely what is required in total is not known at this stage. The Northern Territory Government has submitted that

These are big numbers on anyone's account, and they relate only to needs in the Northern Territory. They may be challenged by the Commonwealth and would have to compete with the remote area needs of other states.

The Board considers it is essential that agreed estimates of future expenditure required to address unmet service needs and infrastructure backlogs in remote communities be made as soon as possible and be based on projected population levels.

Given its central role in preparing the bi-annual report, Overcoming Indigenous Disadvantage, and its long-established credibility and independence, the Productivity Commission would seem a logical choice to undertake this task. In the meantime, all governments should, in any event, commit to increased expenditure on services and infrastructure in remote communities.

In light of the recent statement made by the Treasurer on 26 September 2008, regarding the proposed distribution of around $15 billion surplus into various funds, the Board would suggest that the Australian Government specifically commit to allocate an equitable portion of the surplus to address the housing and infrastructure backlog evident in all remote Aboriginal communities in the Northern Territory.50

Policy and funding reforms through COAG

The Commonwealth and the states, through the Council of Australian Governments, (COAG) have committed to a cooperative reform agenda in all major human and community service policy areas that are principally the responsibility of the states and territories. In addition, a working group specifically focused on Indigenous reform has been established.

Alongside those processes, the Board notes reforms are apparently to be made to the system of specific purpose payments (tied grants). The intention is that most of the more than 90 SPPs will be aggregated into just five or six new national SPPs covering health, affordable housing, early childhood and schools, vocational education and training, and disability services.

For the remaining SPPs and some additional policy and reform objectives, however, more specific National Partnership Agreements will be drawn up and made to achieve their objectives.

Where do programs for Indigenous people fit?

Since many programs of benefit to Indigenous people are mainstream programs, they will likely be covered by the new national SPPs. However, the Board understands that all the working groups developing objectives and outcome measures for those SPPs have been directed to ensure that specific targets for reducing Indigenous disadvantage are included. The Working Group on Indigenous Reform (WGIR) will review how all COAG reforms contribute to an integrated strategy for closing the gap by the end of 2008.

The Board urges the First Ministers to take a particularly strong interest in the Indigenous specific targets within the SPPs and in the outcomes of the WGIR assessment.

As for Indigenous-specific programs, especially those focused on remote Indigenous communities, the Board is strongly of the view that they should be covered by 'facilitation' NPPs (and related agreements) and, unlike the new national SPPs, that it would be appropriate and desirable for there to be specific conditions attached.

On the other hand, it would be undesirable for funding for these programs to potentially affect states' and territories' shares of GST revenue.

One risk is that the NPPs might result in government agencies working in isolation from one another where cooperation and coordination is required. One way to overcome this might be to pool the NPP funding in the hands of a central agency and have its use overseen (and monitored) by a high-level coordinating group. Monitoring, robust evaluation and regular reporting to, say, the WGIR should be a requirement if the programs are to be sure to meet their objectives.

The Board seeks to make clear that it would be a significant mistake if the funding needs of the Northern Territory reflected in the recommendations of this report were ultimately fought out in competition with other jurisdictions as part of COAG. For its part the Commonwealth has a continuing key leadership role and responsibilities in carrying these issues through in their own right.

Recommendations on Funding and fiscal reform

3.4 Governance, agreement making and capacity building

An essential requirement, though not the only one, for ensuring the ongoing stability and sustainability of communities is that they have capable and culturally legitimate systems of leadership and governance.

Those systems should involve processes through which communities:

The separation of powers can be set out in constitutions, agreements, conventions, procedures and policies which ultimately determine who exercises what power in what circumstances, how particular decisions are made and how accountability of decision makers and managers is ensured.

The robust evidence over four years from the Indigenous Community Governance Project indicates that practical, capable, culturally legitimate governance is needed to ensure that communities achieve and sustain their cultural, political, economic and social development goals.

Governance in remote Aboriginal communities in the Northern Territory

On many accounts, systems of leadership and governance have been problematic in remote Aboriginal communities for decades in the Northern Territory. This is partly because communities themselves were largely artificial creations of various government policies before the 1970s.

The advent of self-determination in the 1970s did not overcome the problems. Community organisations were required to take on service delivery for which they were ill-equipped and for which funding was inadequate, piecemeal and shortterm. The structural disengagement of governments from communities and from service delivery during this period also saw the departure of experienced, well-trained public service professionals—and communities had difficulties attracting and retaining the professional staff needed to help them manage funding and service delivery.

The weakened systems of leadership and governance in many remote Aboriginal communities in the Northern Territory undoubtedly have contributed to the social and economic dysfunction now evident in most communities; as has the structural and institutional failure of both the Northern Territory and Australian Governments.

The NTER has its antecedents in both the poor governance within communities and governments. Unfortunately, the way that NTER has been mplemented may have further undermined the already weakened and stressed systems of traditional Aboriginal authority, decision making, leadership, community engagement and self-governance.

It is essential that, as soon as possible, the Australian and Northern Territory Governments jointly develop clear processes for:

  1. rethinking and redeveloping its own approach to funding, supporting and sustaining capable, legitimate community and regional governance systems
  2. encouraging Aboriginal communities to rethink and redevelop capable, legitimate community leadership and governance systems.

These joint initiatives will be essential to ensure the ongoing stability and wellbeing of communities and their future, and more effective participation in robust governance. It is only from such a foundation that Aboriginal Territorians will be able to participate in the processes of making agreements with governments, including the new local government shires, about the future development of their communities and related delivery of infrastructure and services.

We have highlighted the need for governments to recognise their responsibility to alter their thinking and practices in realigning their relationships with Indigenous communities. What is also required is the development of legitimate and effective forms of Indigenous governance. This will enable communities to be at the table on an equitable basis and operate within an environment of mutual respect which will be fundamental in building the new partnerships.

The Board is of the view that governments should consider the US and canadian First Nations community governance experience as examined by Harvard University's Professor Steven Cornell in his recent presentation in Canberra for Reconciliation Australia. (A copy of his speech from Canberra in September 2008 is in Appendix 16.)

The Board is aware that one of the building blocks agreed by COAG for closing the gap on Indigenous disadvantage is investment in Indigenous governance and leadership. Consistent with this, we recommend urgent investment in supporting remote communities in the Northern Territory to develop appropriate local governance mechanisms in parallel and complementary to the transition to shire councils.

The role of the shires in community and regional governance

A complicating factor in the rebuilding of community governance is the new regional shire governments in the Northern Territory. They have taken over delivery and management of core municipal and other services from the former community councils. This is part of a strategy intended to: develop strong regional local government, provide economies of scale in service delivery, underpin stronger management structures, increase the focus on local Aboriginal employment, and provide a stronger voice for local communities with other governments.

How effective these new local government arrangements will be is yet to be known. Although the structures have been established, CEOs appointed and business plans developed, the first elections are yet to be held. One particular concern is whether the new arrangements will be regarded as culturally legitimate and supportive of community decision making, economic and social development. The Northern Territory Government, on the recommendation of an advisory committee chaired by Pat Dodson, is proposing to establish local community boards to facilitate community representation and involvement in the new shires.

As with community governance more broadly, if the nature of the local community boards, and representation on them, is externally imposed, it is unlikely to be successful and sustainable. The development of community boards should be integrated into the process of rethinking leadership, participation and other governance issues in all their dimensions, not separate from it.

The bilateral agreement approach to building Indigenous governance that the Northern Territory and Australian Governments entered into before the NTER, but which was effectively bypassed under the NTER, should be rehabilitated. It is a potentially valuable mechanism for recreating a more collaborative approach to facilitating and developing strong community and regional governance in the Northern Territory. Now that the regional shires have been established, it is a timely and important opportunity to include local government in a trilateral agreement that focuses on building and sustaining capable, legitimate Indigenous governance and leadership in the Northern Territory.

Partnership agreement making

Partnership agreements and collaborative strategies have been adopted as core elements in governments' approaches to Indigenous affairs and service delivery in recent years.

However, the interventionist, largely top down approaches that have characterised the NTER and most agreements to date must be replaced with what are, in fact and in name, participation and partnership agreements. These should be developed through processes which engage communities in culturally informed ways from the outset.

Such 'bottom up' agreements should have governance building at the very heart of their goals and outcomes, supported by sustained pooled funding and capacity building initiatives.

While having separate local agreements with all relevant communities under an overarching framework agreement or template might seem to be, in principle, an attractive model, in practice it would be simply unmanageable.

Some form of regional approach to agreement making, but with the engagement and participation of local communities themselves, through legitimate (locally approved) representatives, is likely to be the most manageable. Such an approach would then harmonise with the existing network of regional shires and other regional Aboriginal service delivery and representative bodies, rather than creating another unwanted set of regional incorporated structures.

Relevant elements of the recently signed Anindilyakwa Regional Partnership Agreement at Groote Eylandt could provide a starting point for developing a template for such agreements. The specific contents of the agreements for services and infrastructure to be provided, and to whom, would differ case by case. However, they are likely to be shaped by the elements now commonly used to deliver the outcomes involved in closing the gap on Indigenous disadvantage.

To help regions and communities negotiate agreements governments will need to provide sustained support. This can be done in various ways, but most likely will require mentors and community development workers being appointed to regions or communities as well as third party 'arms length' facilitators. An integral part of the agreements' objectives and programs should be capacity building in all aspects of leadership and governance.

Capacity building

At several points, the Board has had reason to emphasise the importance of leadership, governance and capacity building. The Board takes a community development approach to both the building of capacity and governance in communities and regions.

Community development processes involve:

Leadership, governance and the capacity to participate are all critical components of community-owned and community-driven development.

The principal aims and objectives of the community development approach to both governance and capacity building are to enable:

Governments and their agencies have an important enabling role to play in a reinvigorated community development strategy in the Northern Territory, as well as a supporting role. That is, they need to open up the space for communities to drive and govern their own development, as well as support them to use that space to maximum effect.

Recommendations on Governance, agreement making and capacity building

  1. Section 31 of the Northern Territory National Emergency Response Act 2007 provides for the compulsory grant of a lease to the Commonwealth.
  2. Welfare recipients subjected to income management in the Northern Territory under s. 123UB of the Social Security (Administration) Act 1999 are excluded from provisions that allow for external merits review (that is, the right to appeal decisions made under the Act to an external body such as the Social Security Appeals Tribunal and the Administrative Appeals Tribunal—see ss 144(ka) and 179(1) of the Social Security (Administration) Act 1999).
  3. Northern Territory Emergency Response, 12-month review, Terms of Reference
  4. Reconciliation Australia Submission, 'What Works in Indigenous Affairs'
  5. These points are a summary of recommendations and findings from the following sources: The Productivity Commission 'Overcoming Indigenous Disadvantage: Key Indicators', 2007 Aboriginal and Torres Strait Islander Social Justice Commissioner Social Justice report 2006, 2005 & 2004 The Telethon Institute for Child Health Research, Western Australian Aboriginal Child Health Survey, 2006 P Anderson. & R Wild. Ampe Akelyememane Meke Mekarle Little Children Are Sacred report, 2007 Reconciliation Australia and CAEPR, J Hunt & D Smith, 'Indigenous Community Governance Project: Year Two Research' Dr Ken Henry, Treasury Secretary, 'Creating the right incentives for indigenous Development' Address to the Cape York institute Conference, 2007
  6. Examples of submissions - Indigenous Community Governance Project CAEPR, ANU, The Smith Family, Menzies School of Health Research, Northern Territory Dept of Health & Families, West Arnhem Shire Council, Anonymous, Centre for Appropriate Technology Inc., CAEPR ANU, Reconcilliation Australia, Oxfam Australia and Australian Indigenous Doctors Association
  7. A notable exception, until recently, was that the Commonwealth retained responsibility for services to outstations in the Northern Territory
  8. Strictly speaking the High Court has interpreted the Commonwealth's exclusive power to impose 'duties of excise' as meaning that they can't impose taxes on the production, distribution or consumption of goods.
  9. J Taylor and O Stanley. 'The opportunity costs of the status quo on the Thamarrurr Region, Northern Territory', CAEPR Working Paper No. 28. Centre for Aboriginal Ecomnomic Policy Research, The Australian National University, Canberra, 2005
  10. The Hon Wayne Swan, Treasurer, 'Final Budget Outcome 2007–08 and Transfer of Surplus', media release, 26 September, 2008

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Conclusion

Chapter 2