Tokenism or inclusion: recognition of Indigenous rights and interests in legislation

Whilst legal recognition of the rights of Indigenous peoples has progressed, it will require greater institutional change to achieve real inclusion, Dr Bartholomew Stanford from Charles Darwin University writes. 

Aboriginal and Torres Strait Islander rights and interests are becoming more common additions to government policy and legislation in Australia. The purpose behind this increasing recognition is to redress historical injustices perpetrated by the state against Indigenous communities which have directly contributed to their socio-economic disadvantage and political exclusion.  

There are, however, issues with how inclusion is approached and the lack of preparedness of governments to respond to legislation, which is evident in Queensland’s system of local government.  

Barriers remain for Indigenous councillors and Traditional Owners participating in and engaging with local governments in the Torres Strait, despite Indigenous recognition in the Local Government Act 2009 (Qld) and the Planning Act 2016 (Qld).

The Torres Strait is unique 

The Torres Strait is a unique area of Australia. The Aboriginal and Torres Strait Islander people of the region have their own distinct cultural practices.  

The Torres Strait also has a special system of governance that is unrepeated elsewhere in Australia. There is a commonwealth statutory body, the Torres Strait Regional Authority, three local governments (Torres Strait Island Regional Council, Torres Shire Council and Northern Peninsula Area Regional Council), numerous federal and state departments, Registered Native Title Bodies Corporate (RNTBC), and Gur A Baradharaw Kod Torres Strait Sea and Land Council (GBK) a peak body for RNTBCs.  

Recognition of custom remains optional 

Some have argued that the Torres Strait is over-governed. However, it is clear that Aboriginal tradition and Island custom are being marginalised from power at the local level. 

Section 9(3) of Queensland’s Local Government Act 2009 (Qld) states that ‘when exercising a power, a local government may take account of Aboriginal tradition and Island custom.’ This allows local councils to recognise Indigenous traditions, customs and beliefs while undertaking their duties. What is important to highlight is the use of the word ‘may’ in that provision.  

Without an explicit requirement, local councils can ignore this section of the legislation. Recognition of Aboriginal traditional and Island custom in local governments is optional, which impacts two fundamental Indigenous institutions; kinship and Country.  

Conflicts of interest are common 

Indigenous councillors in the Torres Strait Island Regional Council (TSIRC) declare far more instances of conflict of interest than councillors in urban local governments. This is because the municipal area has a relatively small population of approximately 4,000 people. But it is also because people in this local government area are connected to each other through kinship networks.  

So, when councillors for TSIRC are making decisions, they often find themselves in conflict and must leave the room and abstain from voting.  

At the time of this research, a conflict of interest was defined in legislation as a conflict between a councillor’s personal interests and the public interest, that might lead to a decision that is contrary to the public interest – it has since been changed to resolve ambiguity in this definition.  

The average conflict of interest for councillors in TSIRC is 16 over a 4-year council term, for councillors in Redland City Council just south of Brisbane, it is only 2. Local government decision-making, as it is regulated under legislation, does not consider the unique circumstances and cultures of the region.  

Native title is not always respected 

Much of the Torres Strait (land and water) is recognised under native title, or in the process of being determined. Country is an integral part of Aboriginal tradition and Island custom and forms the basis of many cultural traditions.  

The Torres Shire Council (TSC), however, made a decision in 2019 to build a jetty on an island recognised under the Kaurareg Aboriginal Traditional Owners native title determination, without the consent of the Kaurareg Native Title Aboriginal Corporation (KNTAC).  

KNTAC took the Torres Shire Council to Federal Court and sought an injunction to the proposed development. The presiding judge granted the request. And by 2021, TSC had abandoned its proposed development, citing anthropological reports highlighting the cultural significance of the site to Kaurareg people.  

Local governments in Queensland perform important land planning and development duties under the Planning Act 2016 (Qld). Section 5 2(d) of this Act gives planning authorities the responsibility of ‘valuing, protecting and promoting Aboriginal and Torres Strait Islander knowledge, culture and tradition’.  

However, the actions of the TSC could be interpreted as being in stark contradiction to this part of the legislation. In addition, KNTAC has an Indigenous Land Use Agreement with TSC under the Native Title Act 1993 (Cth), that covers things like consultation between parties – however, it was unable to prevent the conflict from occurring.  

It needs greater institutional change 

What these cases show is that although Indigenous rights and interests are recognised in legislation, governments are unable or unwilling to respond. Part of this has to do with how Indigenous inclusion is approached in legislation, like the wording in the Local Government Act 2009 (Qld).  

Another is the lack of recognition shown to Traditional Owners’ connection to country. Historically, local governments have shown little regard to the rights and interests of Indigenous Australians.  

Greater recognition in legislation is a positive step towards addressing this issue, but it will take far greater institutional changes within government to improve how Indigenous rights and interests are recognised.

Read the full article in the Australian Journal of Public Administration.