1. Cultural Governance – Where Culture Belongs in Relation to Governance and Representation

The Human Rights and Equal Opportunities Commission Social Justice Report of 2012, on page 86, proposes a framework for effective, legitimate and culturally relevant Indigenous governance that has three key components: • community governance • organisational governance • the governance of governments. Sadly, in the post – ATSIC period, issues relating to Indigenous Governance and Indigenous representation have been relegated to second tier issues and the role of Aboriginal culture [as distinct from ‘the arts’] has been relegated to a third tier issue. In the post – ATSIC period we have witnessed a range of initiatives relating to the Governance of Government, most notably the COAG arrangements, Close the Gap and specific initiatives such as the COAG Remote Service Delivery arrangements. Across the same period we have seen the development and enhancement of a range of initiatives relating to organisational governance, most notably the role of ORIC and also the proliferation of PBCs. But across that same period, there has been almost no development in regards to issues of community governance, except in as much as there are aspects of organisational governance and the governance of governments which do relate to the community. Indeed, Governments oftentimes demonstrate through their policy and funding actions that they believe that there are only two dimensions to Governance, and they totally ignore the reality that community governance has traditions which date back over 60, 000 years. The way that these traditions play out in terms of Governance and Representation in the Kimberley can be seen through the KALACC logo, as attached, and as described in the Indigenous Governance Toolkit: KALACC represents themselves through a simple diagram of concentric circles. “At the very core are the senior cultural bosses, the law men and women of the Kimberley. These people may not be KALACC Directors but they are KALACC members and they are our clientele. The next circle out is the middle aged to elder group who are themselves cultural leaders and who liaise closely with the inner circle of cultural bosses. The next circle out are the staff and others associated with the organisation who are tasked with the responsibility of enacting the wishes of the Directors. Next circle out is the broader membership of the Kimberley. And the final circle is the outside world”. http://toolkit.aigi.com.au/case-studies/kimberley-aboriginal-law-and-culture-centre

Both Senator Pat Dodson and Ms June Oscar, Social Justice Commissioner, articulate the importance of cultural governance through their comments in the KALACC publication New Legend: So, the importance of Law and Culture and a Committee and a Council that grapples with these things is multi – faceted. It is ultimately the body that has to be respected and we have to account to on where we’re going, in what we’re doing as leaders, or as people who are about change, who are about restructuring, redirection, about accommodation, negotiation with the western world, with the Australian world. So you need a sense of who your bosses are, your leaders. I mean bosses who have knowledge, who have ceremony, who have song, have dance, who know the country, who’ve got language, who are responsible for admission in to that or exclusion out of it, as well as guidance and direction over many, many things that crop up in life, personally or collectively. That’s what Law and Culture is about. [Senator Dodson, New Legend, page 17]

I think the issue is how do we remain true and strong to what our senior people have taught us? And the way they went about dealing with other Aboriginal and non – Aboriginal people, in a respectful way but in a way that you meant business when you dealt with people. And how we don’t lose sight of all those values in becoming leaders of tomorrow, and how we carry ourselves into the future. [June Oscar, New Legend, page 18]

So, this is the critical issue. If as an Australian nation we are grappling with issues of Aboriginal representation and at the same time Aboriginal governance, then as part of that dialogue we have to address the absolute and fundamental centrality of culture and of cultural governance. As the KALACC staff said in their presentation to the Committee in Fitzroy Crossing on 13 June, the elders are at the centre, the cultural bosses are at the centre. And the outside world consists of concentric circles emanating out from the elder, depending on how close and how aligned the outside world is to the cultural leadership. This is a dialogue and a discussion which we are only just starting to have in this country.

2. Structures, Frameworks and Policies Relating to Cultural Governance and Leadership

Regional Governance In February 2011 the Western Australian Indigenous Advisory Board brought down its Final Report. This is what the Board had to say: Many of the accepted indicators of the effects of Council of Australian Government programs, i.e. education participation, health, engagement with the justice and corrective systems, are worsening for Western Australia. This suggests that the ongoing philosophy of assimilation that is obvious if unstated in underpinning “overcoming disadvantage” and “closing the gap” programs may be a contributor to growing Aboriginal alienation and dysfunction. The Board has developed the view that the help and cooperation of Aboriginal people are required if this trend is to be turned around. The fundamental premise is that only Aboriginal people can solve Aboriginal problems and they can only be empowered to do this through shared strategies and plans developed in a partnership that is based on equality and recognises and respects their cultures and knowledge. The Board also recognises that the deliberate and sustained erosion of Aboriginal culture over many years and attempts to replace it with layers of corporate structures makes this empowerment a task of considerable complexity. Over the last ten years Native Title bodies and emerging prescribed bodies corporate have helped form a pathway to more advanced forms of negotiation and participation by traditional owners but they are not sufficiently embracing in their current form to address all the requirements of a successful strategy. It will therefore require significant resourcing to build the leadership, trust and confidence and to allow the building or rebuilding of culturally legitimate structures that can partner governments in the business of strategy development and governance… The Board is proposing regional governance for all stakeholders in a region and a requirement for external agencies to comply with the regional visions and negotiate within the regional strategic frameworks generated from them. Final Report [pages 1, 2] The Hansard of the KALACC presentation to the Committee on 13 June reads in part as follows: CHAIR: If we had a regional voice for the Kimberley, would that be a good region, as it were—that there's enough commonality across the Kimberley? Mr Carter: Yes.

CHAIR: Are the protocols that you've talked to us about in relation to both elders and intermediaries unique to the Kimberley, or would we find that in other communities as well? Mr Carter: It varies. The way our protocols are set down may be different to those in the Pilbara. Me being a Kimberley Aboriginal Law and Culture Centre person, I keep referring to how we made decisions in the past. And that's what governments should recognise—that protocol, and to have a Kimberley committee is I think a good idea. The Pilbara might have a slightly different protocol, but that protocol of the old man in the centre is universal. KALACC is heartened by the positive developments in various state jurisdictions in regards to the implementation of State Treaties with Aboriginal people. But in Western Australia the key recommendations from the Indigenous Implementation Board [IIB] all related to the re- setting of the relationship between Government and Aboriginal community, so as to recognise Aboriginal culture. This can be achieved through Treaties and through Regional Governance. Sadly, in Western Australia these matters have not progressed at all since the IIB Report was released in February 2011.

Indigenous Governance and Leadership Framework At the Commonwealth level, in the February 2013 Prime Minister’s Closing the Gap Report on page 144 we read the following words: National Indigenous Governance and Leadership Framework The Government is leading the development of a National Indigenous Governance and Leadership Framework in partnership with state and territory governments. The framework will provide strategic direction for governments and recognise and promote best practice across urban, regional and remote locations. The National Indigenous Reform Agreement states that strong leadership is needed to champion and demonstrate ownership of reform. Effective governance arrangements in communities and organisations as well as strong engagement by governments at all levels are essential to long-term sustainable outcomes. Consultation has been undertaken with Aboriginal and Torres Strait Islander leaders, governance and leadership experts and academics, Australian Government agencies and state and territory governments. The Framework is being undertaken in conjunction with the Council of Australian Government’s Select Council on Women’s Issues project on developing a national approach to promoting the leadership of Aboriginal and Torres Islander women in governance and decision-making within communities.

A copy of the Draft Council of Australian Governments National Indigenous Governance and Leadership Framework is attached to this presentation. That draft document is as close as the Commonwealth has ever come in the 13 years since ATSIC was abolished to any serious consideration of Aboriginal governance and leadership issues. In the absence of serious consideration of these matters, Governments have focused on an extremely narrow agenda based around Employment, Education and Safe Communities. And to the extent that leadership and representation have been issues, then successive governments have ignored community governance and focused exclusively on the governance of government and on organisational governance. The people situated at the centre of the KALACC logo have featured nowhere in Government planning in the post – ATSIC period.

Close the Gap Refresh and My Life My Lead At this present point in time, the Commonwealth is engaged in processes of re- considering its main Indigenous Affairs policy platforms through:

• Close the Gap Refresh - https://closingthegaprefresh.pmc.gov.au/ • My Life My Lead - http://www.health.gov.au/internet/ministers/publishing.nsf/Content/health-mediarel- yr2017-wyatt022.htm

Through these twin initiatives the Government is seeking to move away from a decade of deficits discourse and move towards a strengths – based, cultural centred Indigenous policy agenda. KALACC understands that at time of writing that some 23 measures and 93 indicators are under consideration for the revised Close the Gap Framework. The test of whether the Government has listened to community and whether the Government is truly committed to a strengths – based agenda will come when we see if indeed cultural measures and indicators are included in the final revised Close the Gap Framework. If cultural measures and indicators are not included, then the revised Close the Gap Framework will simply be a perpetuation of the repeatedly tried and repeatedly failed deficits discourses which have been employed by successive Governments over the last 10 years.

National Indigenous Arts and Culture Authority KALACC has recently provided testimony to the Commonwealth Parliament Committee of Inquiry in to Fake Art. The Committee’s interest in KALACC may relate to the fact that KALACC owns the Trademark over the Wandjina image and the Wandjina name. But the centrality of what we said to the Committee was that in focusing on KALACC’s ownership of a Trademark under European law, as important as that is, the Government failed to appreciate the more important fact that KALACC represents the interests of the cultural bosses for the three north Kimberley tribal groups for whom the Wandjina lies at the core of their spiritual beliefs.

In June 2016 the Commonwealth Government terminated the Indigenous Cultural Support Program and replaced it with the Indigenous Languages and Arts Program. Abandoning culture in the pursuit of art was a regrettable and retrograde step. Since then, Minister Scullion has made it exceedingly clear to KALACC that the Department of Prime Minister and Cabinet has no interest in back filling the policy and funding responsibilities of a different government agency ie the Commonwealth Arts Department. The end result is that the Commonwealth Government currently has no policy settings and no funding programs relating to Aboriginal culture – as distinct from ‘the arts.’ Against this distressing background, KALACC is aware of community – based initiatives designed to establish in the middle of 2019 a National Indigenous Arts and Culture Authority [NIACA]. KALACC first attended a NIACA planning meeting over 10 years ago and it has been a long time in the making. But it is entirely clear that in the post – ATSIC period that Aboriginal culture has been a third – tier issue for successive Governments and in that context we welcome the fact that this long – considered NIACA proposal is now moving towards actualisation and fruition. As a nation, we desperately need a structure, such as NIACA, to act as a voice for the Aboriginal cultural interests of this nation. At state level, the Indigenous Implementation Board’s position was that there can be no re- setting of the relationship between Aboriginal people and the Government until Aboriginal culture and Aboriginal cultural governance were placed at the very centre of Indigenous affairs planning. KALACC is encouraged by national moves towards Indigenous representation. But what we are not seeing at the national level at this time is an appropriate level of recognition of the absolute centrality of Aboriginal culture.

3. Makarrata Commission

KALACC’s 13 June presentation to the Committee was primarily delivered by Neil Carter, KALACC Cultural Heritage and Repatriations officer. In his presentation to the Committee, Neil spoke of the importance of his working role and why it is that repatriation work is so critical towards healing and reconciliation. In that context, I wish to share with you a few words taken from page 157 of David Mowaljarlai’s book Yorro Yorro: After about one year, we have to take him back to the Wandjina who created this man. What is why you have seen those bones in the caves. We open the paperbark with his bones and his spirit can go in and out. We put a bush bucket of water beside his bones, a paperbark vessel with the wunggud water he was created from. He can drink of it and his spirit is now free to come and go as he wishes. We have taken him back to the Creator, the Wandjina. Given the above, one can only imagine what devastating spiritual impact grave robbing would have had and thus why repatriation is such an important activity to undertake.

But this important reconciliation and healing role is not recognised by Government. There does exist a small repatriations unit within the Commonwealth Department of Arts. And communities can access some project funds to assist with repatriation projects. But there is no investment in to community capacity building around this important work. And since the June 2016 termination of the Indigenous Cultural Support program, the Commonwealth has not contributed towards the ongoing employment at KALACC of Neil Carter.

Appendix # One: KALACC Logo

Appendix # Two: Indigenous Governance Toolkit http://toolkit.aigi.com.au/case-studies/kimberley-aboriginal-law-and-culture-centre

March 15, 2013

Culture and governance

Kimberley Aboriginal Law and Culture Centre (KALACC) is the Kimberley Region’s Peak Indigenous Law and Culture Centre. KALACC’s mission is the maintenance and promotion of the traditional cultures of the 30 language groups of the Kimberley region of Western Australia.

KALACC has a Board of Directors consisting of 12 Directors who are elected to hold office for a term of two years. In addition to the 12 elected Directors, there are six people who hold the title of Special Adviser. These people are honorary life members of the organisation and are not elected to the board but are senior cultural leaders of the Kimberley.

KALACC has found that having Special Advisors allows the Board to maintain a sense of stability and continuity despite having biannual elections. Having Special Advisers as life members means they are able to pass on their corporate and governance knowledge in the event of an entirely new Board of Directors being elected as well as ensuring that the accepted standards of cultural governance are observed and maintained within the organisation.

“KALACC is not confused about its identity, purpose or function. We are somewhat unique in the cultural and organisational landscape of Australia. Since 1985 KALACC has existed for the express purpose of maintaining and promoting the cultures of the 30 language groups of the Kimberley region of Western Australia.”

Given its function and purpose, the membership of KALACC has naturally been the people who speak the languages and practice the cultures that KALACC aims to promote.

KALACC represents themselves through a simple diagram of concentric circles.

“At the very core are the senior cultural bosses, the law men and women of the Kimberley. These people may not be KALACC Directors but they are KALACC members and they are our clientele. The next circle out is the middle aged to elder group who are themselves cultural leaders and who liaise closely with the inner circle of cultural bosses. The next circle out are the staff and others associated with the organisation who are tasked with the responsibility of enacting the wishes of the Directors. Next circle out is the broader membership of the Kimberley. And the final circle is the outside world”.

There are many reasons why KALACC believes its governance model works so well, but at its core is the fact that they have a very clear sense of who they are and what they do.

“KALACC is the vehicle for the elders and cultural bosses of the Kimberley region to express their views on a range of topics and to advocate for the importance of culture”.

Appendix # Three:

KALACC Resolution Wednesday 26 October 2010

We the KALACC Directors in principle: 1. Demand that governments must listen to, understand, respect and recognize the role, value and authority of culture bosses in their own right 2. Wish for discussions by senior Aboriginal and Torres Strait Islander men and women across Australia to get solid agreement to make this happen 3. Call for new, adequate resources to support this process.

For over thirty years we have been calling for Aboriginal empowerment. Now is the time for a new dialogue based on genuine respect for Aboriginal and Torres Strait Islander law, culture and language. Moved: Mr. Wise Seconded: Patsy Bedford Carried

As part of the discussion it was made clear that government people are not listening and or learning. Governments change every three, four or five years yet law and culture stay/ last forever. It was also noted that the discussions between bosses and government people needs to be on the country and at a time that the bosses decide.

Appendix # Four: Draft Council of Australian Governments National Indigenous Governance and Leadership Framework

DraftAppendix C# Fourouncil: of Australian Governments National Indigenous Governance and Leadership Framework

Strong Governance 2013Strong Leadership Governance refers to decision-making structures and Strong leadership is vital to the process of building Strong Engagement, Strong management at the community, organisational, and governance because leaders take responsibility, Decision–Making and Strong governmental levels. It is about how people organise harness and mobilise community, stimulate ideas, themselves as a group to manage their own affairs and mediate in disputes and lead strategic thinking. Aboriginal and Torres Strait Islander achieve what matters to them. Citizen involvement is Communities critical for good governance.

THIS FRAMEWORK IS A GUIDE FOR GOVERNMENTS IN IMPLEMENTING THE NATIONAL INDIGENOUS REFORM AGREEMENT GOVERNANCE AND LEADERSHIP BUILDING BLOCK. IT AIMS TO INCREASE THE CULTURAL COMPETENCE OF GOVERNMENTS AND THEIR CAPACITY TO ENGAGE ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES IN THE DEVELOPMENT OF POLICIES AND PROGRAMS AND THE DELIVERY OF SERVICES, AND TO ENHANCE CITIZENSHIP AND DEMOCRATIC REPRESENTATION. IT FACILITATES, SUPPORTS AND ENABLES GOOD GOVERNANCE AND LEADERSHIP PRACTICE IN ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES, ORGANISATIONS AND COMMUNITIES BY BUILDING ON EXISTING GOOD PRACTICE.

Principles The Framework principles are based on the National Indigenous Reform Agreement Service Delivery Principles: • Engagement: Engagement with Indigenous elders, men, women, youth, children, people with a disability, organisations and communities should be central to the design and delivery of policy, programs and services. • Sustainability: Policies, programs and services should be directed and resourced over an adequate period of time to meet COAG targets. Particular attention should be given to service system orientation and ensuring policies, programs and services are adequately resourced. • Access: Programs and services should be physically and culturally accessible to Aboriginal and Torres Strait Islander peoples. Additional principles: • Capacity building: Where possible, government policies, programs and services should support capacity building by Aboriginal and Torres Strait Islander communities and build capacity within governments to meet the needs of Aboriginal and Torres Strait Islander peoples. • Strengths-based approach: Policies, programs and services should adopt a strengths-based approach that recognises and builds on existing good practice, recognising the cultural diversity of Aboriginal and Torres Strait Islander communities.

Key Focus Areas Scope • Strengthening implementation of the National Indigenous Reform Agreement Service Delivery Principles • Targeted and mainstream policies, programs and services across urban, regional and remote

• Supporting culturally legitimate Aboriginal and Torres Strait Islander participation in decision-making locations

• Improving the cultural competence of governments and service delivery within a community development • Aboriginal and Torres Strait Islander individuals, organisations and communities framework • IN IMPLEMENTING THE FRAMEWORK, PARTICULAR ATTENTION WILL BE GIVEN TO THE RIGHTS AND

• Strengthening community leadership and governance SPECIAL NEEDS OF ABORIGINAL AND TORRES STRAIT ISLANDER ELDERS, WOMEN, YOUTH (UP TO 27 • Strengthening Aboriginal and Torres Strait Islander organisational / corporate leadership and governance YEARS), CHILDREN AND PEOPLE WITH A DISABILITY.

• Strengthening Native Title Prescribed Bodies Corporate leadership and governance What Success Looks Like • Aboriginal and Torres Strait Islander peoples actively participate in policy-making, program Improved outcomes and sustainability of Closing the Gap in implementation and democratic and electoral processes which affect their local community. Indigenous life outcomes • Aboriginal and Torres Strait Islander peoples are represented through culturally legitimate consultation • Early Childhood and governance mechanisms and institutions. • Economic Participation • Governments engage effectively with Aboriginal and Torres Strait Islander peoples, their representative • Schooling organisations and extended communities. • Healthy Homes • Aboriginal and Torres Strait Islander and governmental governance and leadership capacity is • Health 11 strengthened. • Safe Communities

Attachment A

Schedule D Service delivery principles for programs and services for Indigenous Australians NATIONAL INDIGENOUS REFORM AGREEMENT

PRINCIPLES

D9 Indigenous engagement principle: Engagement with Indigenous men, women and children and communities should be central to the design and delivery of programs and services. In particular, attention is to be given to:

(a) Recognising that strong relationships/partnerships between government, community and service providers increase the capacity to achieve identified outcomes and work towards building these relationships;

(b) Engaging and empowering Indigenous people who use Government services, and the broader Indigenous community in the design and delivery of programs and services as appropriate;

(d) Ensuring Indigenous representation is appropriate, having regard to local representation as required;

(e) Being transparent regarding the role and level of Indigenous engagement along a continuum from information sharing to decision-making; and

(f) Recognising Indigenous culture, language and identity.

D10 Sustainability principle: Programs and services should be directed and resourced over an adequate period of time to meet the COAG targets. In particular, attention is to be given to:

(a) Service system orientation, particularly:

(i) Using evidence to develop and redesign programs, services and set priorities; (ii) Recognising the importance of early intervention; and (iii) Including strategies that increase independence, empowerment and self-management;

(b) Ensuring adequate and appropriate resources, particularly

(i) Setting time-frames for meeting short, medium and longer-term targets and outcomes; (ii) Considering flexibility in program design to meet local needs; (iii) Considering workforce supply and future planning; (iv) considering sustaining or redesigning services to best use existing resources, as well as the need for programs and services to meet the COAG targets; (v) Minimising administrative red tape to enable greater integration of program and service delivery; (vi) Ensuring that programs and services are efficient and fiscally sustainable; and (vii) Ensuring that infrastructure is appropriate and adequately maintained;

(c) Building the capacity of both Indigenous people and of services to meet the needs of Indigenous people, particularly:

(i) Developing the skills, knowledge and competencies, including independence and empowerment of Indigenous people, communities and organisations; (ii) Supporting Indigenous communities to harness the engagement of corporate, non-government and philanthropic sectors;

(iii) Building governments’ and service delivery organisations’ capacity to develop and implement policies, procedures, and protocols that recognise Indigenous people’s culture, needs and aspirations; (iv) Ensuring that programs and services foster and do not erode capacity or capability of clients; and (v) Recognising when Indigenous delivery is an important contributor to outcomes (direct and indirect), and in those instances fostering opportunities for Indigenous service delivery.

D11 Access Principle: Programs and services should be physically and culturally accessible to Indigenous people recognising the diversity of urban, regional and remote needs. In particular, attention is to be given to:

(a) Considering appropriate and adequate infrastructure and placement of services (including transport, IT, telecommunications and use of interpreter services);

(b) Minimising administrative red tape that may be a barrier to access; and