Governance

Governance failures are one of the key pressures on Indigenous communities, which then interact and increase the impact of other pressures. Various government and governance failures are commonly identified by Indigenous communities, including (Murawin 2021c):

• lack of changes in government or agency attitudes or policies
• lack of access to Country, caused by both government and private enterprise
• expectations that Indigenous people will care for Country without financial resourcing
• appropriation of traditional knowledge
• lack of a long-term view and timeframes
• lack of cultural safety when dealing with departments and agencies
• the siloed nature of jurisdictional management.

For cultural burns – you need different permits for parks, Local Land Services and Crown lands and there is no interaction between these organisations. SoE Indigenous workshop participant, Victoria (Murawin 2021c)

Indigenous people both govern and manage their Country. Governance is about who decides, who holds power, accountability and authority, and how decisions are made about Country (Borrini-Feyerabend et al. 2013). The many different Indigenous peoples across Australia have their own sui generis (unique) law that provides the basis of their governance. While colonial policies tried to remove and suppress Indigenous connection to Country, Indigenous governance survived and today is being rejuvenated, sitting alongside the nation-state governance (Talbot 2017). Shared governance arrangements are also increasing – for example, the Ngarrindjeri Regional Authority (Hemming et al. 2017).

Impacts of colonisation, frontier violence, dispossession and family disruption

Colonisation of Australia greatly changed and continues to limit Indigenous people’s ability to live on, govern and manage their Country, with policies of violence and forcible removal into reserves, and attempts to prohibit use of languages and cultural practices (Davis & Langton 2016). Environmental management continues to act as an ongoing tool of colonialism, particularly by privileging western science, institutions and administrative procedures (Muller et al. 2019a). Environmental planning in response to threats such as climate change continues to typically exclude Indigenous values, interests and rights (Lyons et al. 2020). Colonisation and the impacts of colonisation on Indigenous people and communities are ongoing, and this circumstance must be acknowledged (O’Donnell et al. 2021).

The history of frontier violence is gradually becoming more publicly acknowledged. The Colonial Frontier Massacres in Australia, 1788–1930 project (Ryan et al. 2019) has documented a large number of colonial frontier massacres, defined as the deliberate and unlawful killing of 6 or more defenceless people in one operation. The project has identified that massacres spread steadily across the Australian colonial frontier, with a peak in the number of massacres in the 1820s to 1840s in the south-east of the continent, the 1860s and 1870s in Queensland, and in the 1890s in the Northern Territory and the Kimberley region in Western Australia (Figure 3). Agents of the state were involved in at least half of these documented massacres.

Indigenous people’s organised resistance to the invasion is also becoming better publicised (Spearim et al. 2021). The Sydney wars, for example, gives the first detailed account of the warfare from the arrival of a British expedition in 1788 to the last recorded conflict in the area in 1817 (Gapps 2018). Hundreds of Black warriors launched devastating raids on outlying settlements along the Nepean River during the fierce fighting of 1814–16, while guerilla tactical raids on farms occurred close to the centre of Sydney. Resistance by a coalition of tribal groups in southern Queensland, deploying inventive strategies and broader military objectives, disrupted colonisation during 1840–60, a period that became known as the Black War (Kerkhove 2014). Resistance by the Bunuba in the Kimberley, led by the warrior Jandamarra (Woorunmurra & Pedersen 2011), and by the Rainforest peoples in north Queensland (Loos 1982) demonstrate how Indigenous fighters used their superior knowledge of Country to suppress the colonists for decades. The Gunditjmara people of western Victoria fought a sustained campaign on their Country throughout the 1840s, which was referred to as the Eumeralla War (Wettenhall & Gunditj Mirring Traditional Owners Aboriginal Corporation 2010).

Despite the end of direct warfare, colonisation continues to disrupt the connections among people, their Country and their kin. The Stolen Generations, where families were separated and children removed from their parents, resulted in enormous and ongoing cross-generational trauma (HREC 1997). Stories from members of the Stolen Generation across Australia can be found on an interactive map (AHRC 2021).

My grandfather wanted us to deny our Aboriginality so that we wouldn’t be taken away. He used to say that none of his kids would live on a mission. We weren’t allowed to say that we were Aboriginal, and we weren’t allowed to mix with the Aboriginal people in the country town where we lived ... I didn’t find out until Mum passed on that I was related to nearly everyone on the south coast. I even found out that the woman who lived across the street when (we) were growing up was my Aunty. But all those years growing up I hadn’t known. (Linked-Up NSW 1997)

A class action recently launched demonstrates the relationship between trauma and loss of connection to Country. A key argument within the case concerns the devastating effects of loss of culture and connection to Country experienced by people who have lived through the Stolen Generations (Gooley 2021). Family separations continue to affect Indigenous health and wellbeing. Nationally, Indigenous children are 10 times more likely to be placed in out-of-home care than non-Indigenous children (O’Donnell et al. 2019).

One of the effects of ongoing colonisation is that the markers of ‘wellbeing’ or ‘livability’ that are prevalent in frameworks designed to measure environmental management in urban areas rarely consider, relate to, reference or include data from Indigenous people and communities (DITRDC 2016). This is especially seen in the context of housing, where ‘livability’ normally includes factors such as distance from home to work and occupancy levels. These markers are problematic in attempts to apply them to Indigenous people when so many live in desperately overcrowded housing situations and often experience limited employment opportunities (Arundel et al. 2018, DPMC 2020). Indigenous housing is discussed in the Urban chapter (see the Urban chapter).

The Black Lives Matter movement and the many rallies and actions that occur to bring attention to deaths in custody are examples of the types of resistance that Indigenous communities continue to be actively involved in today (Porter & Cubillo 2021). Organised resistance by Indigenous people to past and ongoing colonisation in Australia today is a key cross-cutting theme in environmental management – for example, in strategic responses to climate and environmental change (Nursey-Bray et al. 2019).

Disempowerment and lack of recognition

The lack of respect, recognition and understanding of Indigenous peoples, communities and their knowledge continues from colonisation to today. Traditional knowledge is most often sought to be ‘proven’ against western knowledge, which is most often posited as superior. Indigenous knowledge has been developed over deep time, passed down through many millennia and held today in living communities. Failures to empower and properly respect Indigenous people and knowledge limits Indigenous communities and our collective capacity to meet the environmental challenges we face.

A common theme from the community consultations undertaken for this report was the perception of an overall disregard of traditional knowledges by government. This is very firmly viewed as part of the ongoing circumstance of colonisation that continues to impact Indigenous people, in particular having a new wave of impacts on the current generation of youth and children (Murawin 2021c). A perception that government structural systems are set up to impede Indigenous and environmental interests is pervasive.

Without opportunities for self-determination in all aspects of their lives, there are few pathways for Indigenous communities to participate in mainstream systems, to share and implement their ways of knowing and doing.

Indigenous knowledge needs to be privileged along with western science knowledge in the context of caring for Country. SoE Indigenous workshop participant, Northern Territory (Murawin 2021b)

The saltwater people of South West Rocks are strong in their practise of cultural values and beliefs and so when government or local council make decisions without consultation that affects the environment or cultural heritage sites, then it causes stress and disempowers their ability to be strong mentally. SoE Indigenous workshop participant, New South Wales. (Murawin 2021c)

We are currently developing Healthy Country Plans that each contain wellbeing and health indicators that align to healthy Country. A key concern is that the government department didn’t look at Indigenous aspirations but rather focused on the current state of the environment. SoE Indigenous workshop participant, Northern Territory (Murawin 2021c)

Lack of involvement and engagement

Indigenous self-determination is the right of a people to determine their ways of life and their priorities in terms of cultural, social and economic development. These rights are recognised in international policy, including in:

• Article 1 of the Universal Declaration of Human Rights
• the International Covenant on Civil and Political Rights
• the International Covenant on Economic, Social and Cultural Rights
• the United Nations Declaration on the Rights of Indigenous Peoples.

Being actively and effectively included in decision-making about the environment, as well as directly involved in the management of Country, are important for both Indigenous self-determination and environmental outcomes (see also Indigenous governance of Country).

The ongoing circumstance of colonisation in Australia limits Indigenous people’s capacity to participate in decision-making and governance structures. Colonisation is not an event or a point in history, but an ongoing structure that disempowers Indigenous people and continues to do damage (Sherwood 2013).

We’ve been locked out of decision-making, we’ve been locked out of all the funding, opportunities to participate in the environment and caring for Country space. SoE Indigenous workshop participant, New South Wales (Murawin 2021b)

Because of government policies, Aboriginal people are less enabled to be the leading architects in their heritage. Therefore, they become more disempowered. SoE Indigenous workshop participant, New South Wales (Murawin 2021c)

Protecting environment under current policies are difficult because of the lack of involvement of Aboriginal people in decision-making. Then you have environmental changes occurring – this all impacting on Aboriginal people’s ability to care for Country. SoE Indigenous workshop participant, New South Wales (Murawin 2021c)

To improve Indigenous people’s involvement in decision-making, government and the private sector need to better understand the strong connection Indigenous people have to the environment. They also need to recognise that Indigenous people bring with them more than 60,000 years of environmental care knowledge. This connection and knowledge need to be part of the decision-making in planning, development and implementation (Davis & Langton 2016). Importantly, it also means an unlearning and unpacking of the systemic racism, bias and superiority built into Australian structures by government.

Unpacking systemic racism will require much resourcing and education, and at the heart of these efforts must be a drive to ensure those who are engaging with Indigenous communities are doing so from an educated, culturally sensitive standpoint. While in recent years there have been many ‘best-practice’ guidelines relating to Indigenous engagement developed over various forums and disciplines, there is still a long way to go in educating individuals and entities who work with Indigenous communities. Timelines and approaches need to reflect not just ‘the norm’, but instead incorporate practices that reflect Indigenous ways of seeing and doing. Palyku woman Aurora Milroy explains (Milroy 2019):

Just about everything in Indigenous culture comes back to this system of relationships. In the public administration context, many Aboriginal people don’t trust government. This lack of trust is due to the history of the relationship – governments breaking promises and administering violence against Aboriginal people. The threads in the system that connect us as blackfellas to government need mending, and government has an important role to steward the relationship going forward. Part of this mending process requires recognising what Indigenous people have to offer and how we can contribute to better policy and better public administration. Often, western public administration assumes it is ‘public administration’ but it can learn a lot from Indigenous models of governance as well.

Many of the Indigenous workshop participants expressed frustration at inappropriate modes of engagement and a lack of education about their communities from those in management positions, and the need for greater self-determination (Murawin 2021a). Creating opportunities for more Indigenous people to work at all levels of the government and private sectors in planning, developing and implementing projects that affect communities and their Country would help to effect positive change from within.

At the core of empowering and respecting Indigenous communities in decision-making processes and engagement is the obligation to ensure ‘free, prior and informed consent’. The Dhawura Ngilan vision statement (HCANZ 2020) – formulated by Indigenous heritage experts to guide best-practice standards for Indigenous heritage – asserts free, prior and informed consent as foundational to any respectful engagement with Indigenous communities. Free, prior and informed consent is also a central tenet of the United Nations Declaration on the Rights of Indigenous Peoples (see International laws and agreements), highlighting that communities must be presented with both adequate information and adequate time to consider information.

Inflexibility of management approaches

Mismanagement of the Australian landscape and waters over generations was a theme raised by all participants in the workshops for this report (Murawin 2021c). Mismanagement of land, waters, national parks, forestry, fire reductions and pest control were specifically named as issues.

They are cutting down the wrong trees, for example milkwood trees which are associated with birthing places have been cut down in Darwin. SoE Indigenous workshop participant, Northern Territory (Murawin 2021c)

It’s government nature to separate everything, to compartmentalise everything, but the environment and Country is holistic and everything is connected. SoE Indigenous workshop participant, Australian Capital Territory (Murawin 2021c)

Governments are not listening to Aboriginal people and embedding cultural practices and bush knowledge. SoE Indigenous workshop participant (Murawin 2021b)

Indigenous respondents to the survey undertaken for this report asserted that mismanagement was linked to a lack of recognition and inclusion of traditional knowledge and Indigenous communities in environmental work. Examples were provided of government agencies hiring Indigenous rangers to work on fire reduction programs, but were quick to point out that this does not lead to including traditional burn techniques in the programs, as Indigenous knowledge and practice is not central in these work opportunities. It is simply Indigenous employment when not carried out with cultural integrity, knowledge and practices (Murawin 2021c). Bhiamie Eckford-Williamson, an Euahlayi man and academic from the Australian National University, in his submission to the 2020 Royal Commission into National Natural Disaster Arrangements, reflected the concerns shown in data collected from community members that question ‘cultural burn’ projects divorced from their necessary cultural context (CSIRO 2020, Weir et al. 2020):

These data emphasise that Indigenous people must be empowered to lead in cultural burning initiatives, and that the cool burn techniques used by Aboriginal people could not be appropriated into western fire management processes: cultural burning is only cultural burning when Aboriginal people are leading and controlling it.

Management of waterways and water resources is of particular concern (see the Inland water chapter). In his submission to the South Australian Government’s 2018 Murray–Darling Basin Royal Commission, Uncle Badger Bates explains the devastating long-term effects of the loss of water in the Baaka/Barka – Darling River and how the degradation of this waterway cannot simply be fixed if the water is returned (Bates 2018):

Then an ‘environmental flow’ was sent from the upper storages down to the Darling River, called the Northern Connectivity Event. I don’t recall this ever happening before, usually water we get is from natural rainfall events. It finally reached Wilcannia in June, a very small and very salty bit of water that had a strange bright clear look about it. It has been trickling down for 2 months now and it is getting saltier, which has puzzled everyone. Usually these days a small flow will be salty and nasty at first because all the bad water upstream is pushed down. But people can’t work out how come it is still salty, even getting saltier, which seems to go against the usual recent pattern. I know what is causing the salt levels, the long-term lack of water in the river and shallow aquifers lets the salty aquifer escape and seep into the river.

The growing recognition of the need to respect and apply Indigenous knowledge and practices alongside western science methodologies in the management of Country shows potential to effect much positive change for both people and Country moving forward (Christie et al. 2015) (see also Indigenous governance of Country).

Lack of access to Country

The consultation for this report identified a wide range of barriers that prevent Indigenous people from caring for Country. One of the main barriers is lack of access to land to practise traditional caring techniques and practices. Community members identified that issues around access to Country fall broadly into 2 categories:

• lack of access to Country to undertake caring for Country work
• lack of access impacting on social, health and wellbeing (see Impacts on wellbeing and cultural practices).

Lack of access to Country has occurred because of colonisation and appropriation of traditional lands, and the creation of a system that excludes Indigenous people. Particular issues include legislative blockages (e.g. land tenure, inter- and intra-legislative structures, and jurisdictional and federal control) and inconsistent application of laws (see Indigenous land ownership and management and Legal empowerment).

Western law is locking the gate on Indigenous Country, especially down south. SoE Indigenous workshop participant, Northern Territory (Murawin 2021c)

You do what you do when you can, you don’t build a sustainable program that actually takes good care of Country, but the more insidious thing is that you’re totally reliant on others who are outside the community and outside the control of that land and their good graces to be able to access your own Country. SoE Indigenous workshop participant, Northern Territory (Murawin 2021b)

Access to Country is also important because ‘Country is where we get our strength from’. Specifically raised in Darwin, but impacting many communities, is the indirect issue of people moving off Country to regional and urban centres. The impact here is 2-fold – firstly, there are fewer people left on Country to undertake the caring work required and, secondly, overcrowding and other social, environmental and health issues arise in higher population centres.

Joe Morrison, an Indigenous natural resource management specialist of Dagoman and Torres Strait heritage, expressed that there is a great impact on the ability to care for Country due to the many unresolved matters in native title, Indigenous Land Use Agreements (ILUAs), negotiations and land rights claims (pers. comm., 23 August 2021):

There is a significant imbalance of power in negotiations, with ILUAs being private agreements meaning that information is not widely available or accessible by those members of the Indigenous group. There are also differences across jurisdictions, for example, NSW is a challenging jurisdiction and it is hard for Aboriginal people to claim land as it is not openly available. And in most parts, the adversarial nature of claims processes have led to delays, frustration and many Elders passing away waiting for claims to be settled. It is based on a colonial process that has become not fit for purpose in the 21st century.

Lack of water rights

Australian water management has typically resulted from top-down government decision-making because of emergent pressures on water resources. The resultant water resource planning processes have frequently struggled to engage Indigenous people in meaningful conversation or deliberation about future water use and planning options, and rather engaged in ineffective ‘consultations’ and ‘service delivery’ processes (Hemming et al. 2017) (see the Inland water chapter).

Existing laws for water management in Australia offer very limited recognition of Indigenous rights to access water. Indigenous people currently suffer great inequity – for example, Indigenous water entitlements in the Murray–Darling Basin are estimated to be less than 0.01% of diversions, despite Indigenous people constituting 5.4% of the population of the Basin (Jackson et al. 2021) (Figure 4). In New South Wales, the trend in Indigenous water holdings was negative in 2009–18, when almost one-fifth of Indigenous water holdings were lost (see also Indigenous water governance and rights).

Environmental management plans, while containing provisions to engage and consult with Indigenous communities, have failed to empower Indigenous aspirations. This has resulted in limited access and usage of water, no economic self-determination and limited ability to care for Country.

Australia has the least formal recognition of Indigenous water rights of any of the colonised countries, encompassing only non-exclusive rights to access water for personal and domestic purposes, and not for commercial purposes … The most recent reviews of progress in water reform in Australia found that the inclusion of Indigenous values in water planning was ‘rare’ even though policy and legislative frameworks provided mechanisms for engagement, and that most jurisdictions have routinely failed to identify and provide for Indigenous cultural values in water planning. (Moggridge 2021)

The Echuca Declaration, a groundbreaking statement that outlines Indigenous nations’ rights and aspirations in water management, written in 2007 by the Murray Lower Darling Rivers Indigenous Nations, asserts the need for cultural empowerment as well as economic participation, defining cultural flows as (MLDRIN & NBAN 2007):

Water entitlements that are legally and beneficially owned by Aboriginal nations of a sufficient and adequate quantity and quality to improve the spiritual, cultural, environmental, social and economic conditions of those Aboriginal nations. This is our inherent right.

The Water for Victoria plan (2016) outlined a number of actions to recognise and manage Aboriginal values, including investment in the Aboriginal Water Program. One of the projects supporting Aboriginal access to water for economic development – the Accessing Water Project in Phase 1 of the program – brought together 20 Traditional Owner groups from across Victoria to collate and assert key messages and insights in relation to their concerns over water and the lack of water rights held by their communities. The Cultural water for cultural economies report, which eventuated from this project, found that (O’Donnell et al. 2021):

Addressing this injustice will require the recovery of water rights for ownership and use by Traditional Owners and First Nations, and removing the barriers to water use and water management in accordance with Traditional Owners and First Nations’ laws and customs. Such barriers include the cost of acquiring and holding water rights, inability to access land on which to use water, and water planning and management processes that do not recognise Traditional Owners and First Nations as key decision-makers for water. Many groups have expressed that the existing water entitlement framework is fundamentally at odds with Traditional Owners’ and First Nations’ laws and customs. This project has identified 3 opportunities for water reform: (1) pathways to water under the existing water entitlement framework in Victoria; (2) specific reforms to address barriers in the short term; and (3) transformative reforms that may begin to reconcile these foundational differences.

There is a strong community perception that mining company access to water takes precedence over community and environmental requirements. Native title provides some opportunity to negotiate water access, but not the right to decline access to others (Murawin 2021c).

Water rights are also lacking regarding water quality, and a pressing humanitarian issue is the lack of good-quality water, which is contributing to lower life expectancies in remote communities. Outside the larger Northern Territory cities and regional centres, there is no regulation requiring compliance with base water standards. An example was given of one community that had naturally occurring uranium levels in their water supply at 3 times the recognised safety levels.

Lack of protection for Indigenous knowledge

Biopiracy and deficiencies in both Australian and international law in protecting Indigenous cultural and intellectual property (ICIP) rights present significant challenges for Indigenous communities (see also Indigenous cultural and intellectual property). Biopiracy refers to the use of biological resources or traditional knowledge without the consent of, or benefit sharing with, source communities (Dutfield 2015). Having ICIP rights would allow Indigenous people to better develop primary production and control exploitation of the resources by others.

Issues of the misappropriation of Indigenous cultural expression and knowledge for commercial gain are not uncommon. The theft of Indigenous art has been well documented in cases and reports, and has been considered in numerous government inquiries (Blakeney 1995, FCA 1998, Parliament of Australia 2018). The problem continues to be prevalent and the Productivity Commission was asked to examine the industry in 2021 (Productivity Commission 2021). In many situations, the law allows for the taking of Indigenous cultural expression and knowledge (Janke & Sentina 2017). The key gaps are:

• individual authorship versus communal ownership
• commercial interests versus cultural rights and responsibilities
• rights that can be assigned versus rights that should remain with Indigenous people, families and clan groups
• intellectual property rights are time-limited and, once protection ends, it is publicly and freely available, but for Indigenous cultures, rights remain forever and there may be sacred or confidential material that needs to be culturally managed.

Non-Indigenous companies can legally patent traditional Indigenous knowledge and trademark Indigenous words, and there are no requirements for disclosure of the use to, or for permission to be sought from, Indigenous people (Stoianoff & Roy 2015). Indigenous people call for sui generis laws for greater protection of ICIP.

Attempts to patent plant products exemplify the gaps in law that allow for the continuation of the damaging appropriation of Indigenous ecological knowledge (Robinson et al. 2018). For example:

• United States cosmetics giant Mary Kay attempted to patent extracts from Kakadu plum (Holcombe & Janke 2012)
• non-Indigenous companies attempted to patent medicinal plants such as gumbi gumbi (Pittosporum phillyraeoides).

These patents impact Indigenous people’s ability to develop their own primary production opportunities.

Professor Daniel Robinson and Yamatji-Noongar woman Dr Margaret Raven have sought to highlight the issues surrounding biopiracy and Indigenous knowledges, and have used patent landscaping to identify and challenge intellectual property registrations (Robinson & Raven 2019). Robinson and Raven identified 66 Australian native plant species names appearing in the title and/or abstract of a patent or application in the World Intellectual Property Organization Patentscope, as well as 553 applications that mentioned Australia. Of the 66 identified plant species, many appeared in at least 300 of the patents and applications filed. Dozens of patents were also found to use endemic Australian biological resources.

This is described as a significant ‘biopiracy concern, particularly given that there is very limited evidence to suggest that prior informed consent or benefit sharing was considered in the application or granting of these patents which are highly likely to include pre-existing Indigenous knowledge’ (Robinson & Raven 2017).

Jurisdictions in Australia have been slow to recognise Indigenous rights in biodiscovery activities. The Commonwealth, the Australian Capital Territory, the Northern Territory and Queensland have laws, but there is no national approach (Table 3). Ethical and responsible innovation now governs much of this area, using guidelines and agreements for access to the specific biological resource, if possible.