December 4, 2014

Gathering storm

By Russell Marks
Gathering storm
The assault on self-determination in the West

Aboriginal people began to move back into remote communities, or outstations, on their traditional lands in the early 1970s. It was a conscious movement, a rejection of the reserves, missions and town centres to which they’d been encouraged, enticed or forced by governments and missionaries for the previous half-century. Beginning with the Whitlam government in 1973, federal governments have largely supported the outstation movement with funding for infrastructure and services.

After more than forty years, then, what prompted Western Australian Premier Colin Barnett to last month announce the closure of 150 of his state’s communities?

The trigger was the deal struck in September this year between the Abbott government and four states, including Western Australia, which meant that those states would take responsibility for the direct provision of services to outstations. Barnett now says his state can’t afford to keep the outstation communities going, because the money he received from the feds to do so isn’t enough. So hundreds, maybe thousands of Nyoongar, Wangai and Yamatji people are now at the mercy of an old-fashioned federal-state stoush over funding.

The states and territories have a long history of what can only be called racist action against Indigenous communities, especially where they are seen to be getting in the way of economic development. Until 1967 it was the states that had sole responsibility for Indigenous affairs policy, so it was the states that operated the “protectionist” regimes that practiced segregation and indenture and sought to “smoothe the dying pillow”. More recently, it was state governments that refused to guarantee Aboriginal peoples’ cultural rights – like Charles Court’s in Western Australia, which sent a drilling company into sacred land under police protection in 1980, and like Joh Bjelke-Petersen’s in Queensland, whose determination to resist land rights led, ironically, to the breakthrough Mabo (No.2) High Court case in 1992. After 1967, the Commonwealth became an important protector of those rights. When Canberra retreats from its responsibilities, those rights are diminished.

The “era of self-determination” in Indigenous affairs policy was enabled by the 1967 referendum’s granting of legislative power to the Commonwealth to override state laws. This was the period of the Racial Discrimination Act (1975), the federal heritage protection legislation (1984), the (ultimately disappointed) treaty movement, the Deaths in Custody royal commission, ATSIC (1990), the Stolen Generations inquiry and, perhaps most significantly, the winning of land rights, culminating in the recognition of “native title” first by the High Court (in 1992) and then the federal parliament (1993). Self-determination is hardly a radical policy: it is promoted and protected by international law as a fundamental right of indigenous peoples. But since the mid-1990s, beginning with John Howard and Tim Fischer with their “Ten-Point Plan” and their “bucketloads of extinguishment” of native title rights, the federal government has sought to retreat from Indigenous affairs and return more and more responsibility to the development-addicted states.

Even still, the prospect that a state premier in 2014 might unilaterally declare the closure of Aboriginal communities without consulting anybody who will be affected is truly extraordinary. The outstation movement, which spanned the era of self-determination, was integral to the history of land rights – the Woodward land rights inquiry of the early 1970s allowed many people to see future opportunities to obtain title to their traditional lands, and moving back onto them was important to show a continuing interest. It was also a reaction to the social problems that had emerged on the fringes of missions and towns. At the core of the outstation movement was a desire for greater autonomy. And for any government, the first rule of self-determination is that consultation is non-negotiable.

But Barnett, an economist of the neoliberal school on the team of industry, isn’t part of this history. A reactionary on social issues – homosexuality, drug laws, shark culling – Barnett rarely lets expert evidence from people other than economic rationalists get in the way of his own idea of what constitutes common sense. And “common sense” on outstations involves a privileging of self-evident economic and social truths and a denial of cultural rights.

But lawyer and academic Larissa Behrendt argues that even those truths are far from self-evident. Barnett’s closures will set up a false economy, she says. Research confirms that Aboriginal people who live in outstation communities often have better health outcomes than those who live on the fringes of larger centres. In the guise of “saving” money, the premier is likely to face rising social and economic costs when the people in the communities once again drift in from the bush.

This isn’t to say there’s no disquiet about the outstation communities. Within Australia’s cities, the biggest story about remote Indigenous communities in the last two decades has been their apparent collapse, their abject failures on almost every social and health indicator. At the pointy end of this collapse has been the tragic tide of child abuse and suicide. A landmark coronial report in February 2008 into the recent deaths of 22 Aboriginal people in the Kimberley – 16 by suicide, and 15 of those by hanging – found shocking failures of community and government leadership, and epidemic levels of alcohol and cannabis abuse and mental illness.

But are the outstations to blame? Colin Barnett cited the tragic scourge of youth suicide and the incidence of sexual and other abuse and neglect in communities as one of the reasons that many of the communities are too expensive to service properly, though it’s just not clear how their closure will improve outcomes in those areas. Of the 22 Kimberley deaths investigated by the WA coroner in 2008, 17 of them occurred in the very towns – Derby, Broome, Kununurra and especially Fitzroy Crossing – which can be expected to receive an influx of people drifting in from more remote outstations. Broome’s Catholic bishop, Christopher Saunders, whose diocese covers over 100 of the Kimberley’s communities, works with many of the fringe dwellers in the townships. His warning – that closing the more remote communities will result in even greater pressures on the already-stretched services in the towns – is backed by research from Centacare.

It’s possible to see the decline of some communities as taking place alongside the retreat of governments’ commitment to self-determination. The military-led "intervention" that was hastily arranged by Howard and minister Mal Brough in the dying months of their government, ostensibly in response to the Little Children are Sacred report, is emblematic of Canberra's new impatience about self-determination. Statistics are debatable, but the "Stop the NT Intervention" website has found enough figures in official reports to question the federal government's accepted wisdom about the intervention: reported incidents of suicide and self-harm in Northern Territory communities have skyrocketed (from 109 in 2007-08 to 227 in 2010-11 and 316 the following year), school attendance is down, incarceration and unemployment is up, and earlier trends showing improvements in child welfare have reversed.

Larissa Behrendt identifies the scrapping of the Community Development Employment Projects (CDEP) program (as part of the “intervention” in 2007) as central to the rapid decline in the fortunes of Northern Territory communities since then. Conceived in the era of self-determination, CDEP was originally a scheme that provided for Aboriginal people to be paid wages for community development work. Its success was patchy. The WA coroner in 2008 concluded that its usefulness “was very dependent on the quality of the supervision of those involved which varied from community to community”. But Behrendt argues that especially in areas where there are no jobs, it was far preferable to the quarantined welfare payments – “sit down money” in Noel Pearson’s language – many people now receive. CDEP is still available in the states, including Western Australia, though since 2009 it’s had a “work for the dole” focus and an ambition to train people for work in the mainstream economy. As Behrendt says, there’s often no such economy in communities outside towns.

Colin Barnett has also cited the small populations of some of the communities as a self-evident reason for their non-viability. When he does so, he expresses a purely economic view that misunderstands the nature and history of the outstation movement. The first groups to move back onto country in the 1970s were those who, like the Yirrkala of Arnhem Land, had found themselves “guests” on other nations’ country when they were brought in, and culturally and socially disadvantaged as a result. The attempts by governments, public servants and missionaries to simply bundle Aboriginal people together for the previous fifty years for governments' own administrative purposes undermined the complex system of kinship and land-based culture that governs relations between individuals and groups. Now in 2014, Barnett wants to do it all over again.

It’s impossible to know for sure whether Barnett is mostly bluffing – as a way of trying to blackmail Abbott and his minister, Nigel Scullion, into giving him more money for outstations – or deadly serious. It may not matter. Canberra is unlikely to pour more money into the outstations, and unless Barnett can be convinced that what he’s doing is not only wrong but likely to lead to greater and more expensive social problems in larger centres, the communities will close.

*    *    *

Barnett’s record on self-determination isn’t good – but then few governments’ in the last twenty years have been. In June this year, WA’s Department of Aboriginal Affairs announced proposed changes to the state’s Aboriginal Heritage Act that would “ensure that our Aboriginal heritage can continue to be protected in an effective and efficient way” in light of “inadequacies” shown up by “the pace of economic development in recent years”. That’s rubbish, of course: there is no “efficient” way of protecting Aboriginal heritage effectively. What the Department is actually proposing is that applications by developers will be fast-tracked to allow more efficient development. The proposed changes to the Heritage Act follow a series of administrative appointments and policy reinterpretations that have already ensured that the fox is in charge of the hen-house.

From a heritage protection perspective, the current Act is a long way from perfect. There’s no requirement for Aboriginal involvement in the Cultural Material Committee (which investigates whether a particular site should be protected, and provides recommendations to the Minister); the Minister isn’t bound to accept the recommendation of the Committee in any case; and the Minister can define the “general interest of the community” in any way he wishes. The ultimate decision as to whether to protect a particular site is made by a minister of a government with a direct economic interest in development approval.

But the Western Australian government now proposes to sideline the Cultural Material Committee entirely. Developers are to apply for permits directly to the CEO of the Department, who is no longer required to seek advice from the Committee before making a decision. The CEO seems to be a new position, though it will likely just update the position description of the current Director General, Cliff Weeks. Weeks is a Yamatji man, but his Yamatji membership doesn’t give him a pan-Aboriginal status. It’s unlikely the government expects him to be the appropriate representative of all Aboriginal people in Western Australia – if it does, it’s even more misguided than it already appears. But when Weeks does grant a development application against the heritage interests of an Aboriginal nation or cultural group, the intensities of Aboriginal politics are likely to weigh much more heavily on him than they do on a non-Indigenous minister.

Retaining the power to determine the heritage status of a particular site in one man raises the issue of secret knowledge. As it is, the proposed amendments will make all information in the registers of protected sites “publicly available free of charge”. While this is useful for developers and other non-traditional land users, it represents a retrograde step in our understanding of Indigenous heritage. Nearly thirty years ago, the Australian Law Reform Commission recognised that “material regarded as highly secret, according to Aboriginal customary laws, is generally only known to specific persons”. Land-based traditional knowledge makes certain sites sacred or otherwise significant. It is often the currency that distinguishes “personal authority, personal achievement, the authority of seniors and the integrity and autonomy of local groups”, in the words of sociologist Deborah Bird Rose. Legislation that requires all information on a heritage register to be made “publicly available free of charge” is akin to requiring commercial companies to divulge their trade secrets – with the additional impost that the publication of secret cultural knowledge often has scarring, if not devastating, effects on the cultural group that owns it.

Just as they do now, when they learn that Western Australian law and policy doesn't adequate protect their heritage, traditional owners will seek the assistance of federal minister Nigel Scullion under the federal Aboriginal and Torres Strait Islander Heritage Protection Act. That Act dates from 1984, following the Noonkanbah incident. Noonkanbah is a cattle and sheep station in the Kimberley that passed into Aboriginal ownership in 1976, following a protracted walk-off, Wave Hill style, by the Yungngora people who had been employed there on minimal pay. Four years later, in 1980, Premier Charles Court authorised a company, Amax, to conduct speculative drilling on the station. Despite the fact that the whole drilling area was documented as highly significant for the Yungngora, who protested desperately with the support of the union movement, Court sent Amax in under heavy police escort and with non-union labour. Clyde Holding, Bob Hawke’s first Aboriginal affairs minister, wanted to ensure with the federal Act that there would “never be another Noonkanbah in Australia”.

But since the mid-1990s, traditional owners have had less confidence that Canberra has the will to come to their assistance against development-obsessed states. The big turning point in the history of Aboriginal heritage protection was the dispute over “secret women’s business” that delayed the building of the bridge between Goolwa and Hindmarsh Island, or Kumarangk, south of Adelaide. Following an attempt by Paul Keating’s federal minister, Robert Tickner, to prevent the bridge’s construction, John Howard’s new government passed special legislation to authorise construction without further delay, in part by suspending the operation of the Racial Discrimination Act. It sparked a High Court case whose outcome surprised everyone who thought they’d voted in the 1967 referendum to increase protections for Indigenous people. Canberra’s post-1967 power to make laws “with respect to” the people of the Aboriginal and Torres Strait Islander “race”, the High Court said, did not mean that those laws were required to be to their benefit.

The extraordinariness of the Howard government’s course of action can’t be overstated. It refused to consider a heritage protection application under the federal Act. It passed a special pro-development law that offended, but overrode, the normal prohibition against racial discrimination. And it argued in the High Court that it should have the power to make special laws pertaining to Indigenous people that could harm them as well as benefit them. The new government’s position represented the backlash against the Indigenous rights movement that had been bubbling away among pastoral and mining interests and then on talkback radio.

*    *    *

With the Hindmarsh Island / Kumarangk episode, Canberra signalled that it would no longer automatically protect the cultural rights of Aboriginal peoples from states determined to undermine them. This is the context in which the Barnett government is making its own changes. And despite Tony Abbott’s promise to be a “Prime Minister for Indigenous affairs”, his disposition – like Barnett’s – is much closer to John Howard’s so-called “practical reconciliation” than it is to, say, the United Nations’ Declaration on the Rights of Indigenous Peoples. As opposed to reconciliation proper, practical reconciliation denies the importance of cultural rights under the assimilationist pretence that they’re irrelevant in the face of social and economic disadvantage.

But leader after leader, expert after expert, commentator after commentator has insisted over the past month that government can’t simply pretend that cultural rights are insignificant. That predisposition has determined nearly every official action by governments in the affairs of Indigenous peoples since 1788 – the killing, the colonising, the missioning, the “protecting”, the assimilating, the discriminating. With Western Australia’s forced closures, both the Barnett and Abbott governments are preparing to extend that history.

1967 looms large in the Western Australian disputes. One of Tony Abbott’s three broken promises to Indigenous Australia was that he would have a draft proposal for constitutional reform in circulation within his first year in office. But the reform ran into inevitable problems. Defenders of Aboriginal rights see it as a long-overdue opportunity to make sure that the constitution can no longer be used to effect racist legislation. Abbott balked at that suggestion, and wants as minimal change as is possible to recognise Aboriginal and Torres Strait Islander peoples as the first occupiers. But that’s not going to wash with some of the most prominent Aboriginal leaders, like Pat Dodson, who will campaign against the referendum – and most likely kill it – if it only offers something “wishy washy”. Recognition, as expressed in the official “Recognise” campaign, is not what is wanted. A 22-member expert panel established by the Gillard government, co-chaired by Dodson and including Noel Pearson, learned when it consulted 250 communities across the country that what is wanted is freedom from racist and discriminatory state and federal laws. That’s what 80 per cent of all Australians want for Indigenous people too, according to Newspoll.

What is wanted is freedom, at long last, from the kind of unilateral, unconsultative, “There Is No Alternative” policies the Barnett government is considering in Western Australia. It’s all been tried before, and it’s all failed before. Barnett’s even going back to the future with an inquiry into recent Aboriginal deaths in custody – as if we didn’t already know that the main reason so many Indigenous people die in prisons and police cells is that they’re incarcerated at much greater rates than non-Indigenous people. And WA locks up its Aboriginal population at a rate 21 times greater than it incarcerates non-Aboriginal people. Just before he announced the deaths in custody inquiry, Barnett also announced cuts to translation services that allow Aboriginal defendants who don’t speak English well to better understand court proceedings.

But if the communities are looking to Canberra for assistance, they have a very weak champion indeed in the self-proclaimed Prime Minister for Aborigines.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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