Indigenous Law Bulletin
by Toni Bauman
Responses to the Commonwealth Government’s national emergency approach to Aboriginal communities in the Northern Territory have often emphasised the need for ‘consultation’. And yet, it might not be ‘consultation’ that is actually required, at least in the way it has been practised, as something ‘done’ to Indigenous people. Looking back over the last 25 to 30 years, I see what is often referred to as the ‘failure’ of ‘self-determination’ (where consultation was the ‘buzz word’) as resulting in part from a lack of culturally competent and engaged Indigenous problem solving, decision-making and negotiation, rather than a lack of ‘consultation’ as such.
The incapacity of governments to engage with Indigenous communities and arrive at meaningful, sustainable and owned outcomes through highly specialised skilled facilitation and participatory community development processes has troubled me for many years. The modus operandi of ‘consultation’ has mostly been one-way communication in ‘meetings’ in which talking heads drone on, poorly explaining complex information and concluding by asking: ‘Everyone agree?’. The response: hands raised half-heartedly and barely perceptible nods. Outside the meeting, participants typically have little or no understanding of what they have agreed to, the possible repercussions of agreement, or the short-, medium- and long-term resources available for implementation requirements.
I see no change in this approach in the fleeting glimpses of national emergency Indigenous community meetings on national television. Moreover, the Commonwealth Government appears to see ‘consultation’ as wasting time in its national emergency.
Poor decision-making and problem solving processes in which Indigenous people have been required to make decisions in a vacuum have repeatedly led to unsustainable outcomes for which no one takes responsibility, despite the Commonwealth Government’s mutual responsibility, agreement-making and partnership policies. They also led to my involvement in the Indigenous Facilitation and Mediation Project (‘IFaMP’) in the Native Title Research Unit (‘NTRU’) at the Australian Institute of Aboriginal and Torres Strait Islander Affairs (‘AIATSIS’), which spent three years identifying best practice in Indigenous decision-making and dispute management. As an anthropologist and former field officer, I imagined myself as a good communicator with Indigenous people. But having now undertaken a range of mediation, facilitation, negotiation and participatory community development training, I am aware of the specialised communication skills which are required to arrive at informed, transparent and sustainable decisions. I am embarrassed by past mistakes in unwittingly and unintentionally imposing solutions – albeit with the best of intentions – wondering why the outcomes of decisions have failed, and blaming Indigenous people rather than my own lack of skills.
To appreciate the importance of process, it is critical to understand the direct link between process and outcome, that decisions must be owned to be sustainable, and that all parties (including governments) need to take responsibility for them. Many mediation, facilitation and negotiation training courses teach the ‘satisfaction triangle’ in which the emotional, procedural and substantive rights and interests of all parties must be accounted for in arriving at sustainable outcomes. How an outcome is achieved has a major bearing on the nature of the outcome, its sustainability and its successful implementation. The specialised communication skills which are required involve assisting all parties, including governments, to arrive at meaningful and responsible outcomes, by exploring options, negotiating solutions, reality checking, putting in place detailed processes for implementation and monitoring and ensuring government and Indigenous joint operational planning based on clear understandings of available resources.
Best practice decision-making processes also require evaluation procedures to be built in to any program at its commencement. There has been little or no substantive baseline information developed for communities targeted in the national emergency and seemingly no means established for evaluating the relationship between the process and its influence on outcomes – or indeed, for evaluating outcomes themselves. Yet, the manner in which any ‘agreement’ is entered into will have a bearing on its success, as will the engagement and communication skills of individuals involved on the ground to build mutually respectful and trusting relationships.
IFaMP’s research demonstrates that best practice involves the clear identification of the kind of process to be entered into and agreement by the community to enter into that process, based on an understanding of the range and usefulness of processes available and the level of burden that a particular process might impose. Misunderstanding and misinformation is a major contributor to conflict and it is not surprising that a number of Indigenous people were angry about the Commonwealth’s ‘the cavalry is coming’ approach. Issues of fairness, objectivity and conflict of interest arise in agreements which are being negotiated by Government agencies on behalf of Government. Does the Commonwealth Government intend to adopt a ‘top-down’ arbitration approach where decisions are made by others about what is ‘right for Indigenous people’? Will the approach resemble mediation, facilitation and participatory community development processes where a third party independently assists Indigenous people and governments at arms length to arrive at meaningful negotiated outcomes?
IFaMP’s research also demonstrates the importance of distinguishing between the procedural responsibilities of managing negotiations and the substantive interests of the negotiator. Mixing or blurring the two can make it difficult for all participants, particularly a government representative who seeks to both negotiate with a group and manage the process around which negotiation takes place. ‘Experts’, such as administrators, lawyers, bureaucrats and politicians may be unable to identify when information is not understood if they are simultaneously attempting to manage the process in which information is conveyed. They may also have a particular view, which they unconsciously or otherwise impose upon parties, but which should be objectively explored. The procedural expert remains alert to miscommunications, monitors how to manage them and acts as a ‘circuit-breaker’ without being seen as a stakeholder in particular outcomes.
This is not to suggest a new Indigenous dependency on third party experts. A clear finding of IFaMP’s research is that processes need to build on local capacity, realities and needs and must ensure that Indigenous parties and organisations are ultimately able to manage their own processes and implement outcomes along pathways of community cohesion.
The missing link in government approaches to Indigenous issues is thus an adequately resourced infrastructure of community decision-making, engagement, problem solving and negotiation, based on the understanding that outcomes will not be sustainable unless they are owned by the Indigenous people involved. In the past, one solution which has often been proposed by Governments is for public servants to have ‘cultural awareness’ training, but this is only a very small part of the answer. Being aware of issues which impact on Indigenous people does not equate to the necessary skills of engagement and communication, and not all individuals will be suited to effective engagement with Indigenous people. Moreover, governments and government departments themselves have major organisational communication problems and a range of ‘cultures’ within them which give rise to internal misunderstandings and conflict which have a flow-on effect to Indigenous communities. These in turn intersect with those of other departments as whole-of-government approaches flounder.
Long-term well planned strategies are required once this initial crisis phase has passed. This will require governments to work in true partnerships with Indigenous communities and other stakeholders. IFaMP’s research has clearly demonstrated the urgent need for a national network of highly trained, skilled, monitored and mentored – particularly Indigenous – process practitioners. These procedural experts would be skilled at working locally, able to make timely interventions and to tailor processes to local capacity, needs and interests. Parties could make a choice as to the most appropriate practitioner for their situation, including opting for non-Indigenous practitioners.
There is an urgent need to foster Indigenous and government capacity in:
The proposed national network could:
There are existing networks upon which the proposed network could be built including: State- and Territory-based community mediation centres, the natural resource management facilitator’s network in the Department of Environment and Water Resources, the Australian Indigenous Leadership Centre, the leadership development networks of the Department of Family and Community Services and Indigenous Affairs (‘FaCSIA’) and FaCSIA’s Expert Panels and Multi-Use List for Community Facilitators/Coordinators.
This is not only an issue of the fundamental human right of free, prior and informed consent. Processes must actively engage Indigenous people in working through issues and arriving at their own solutions. In the absence of the promotion and development of Indigenous engagement procedural expertise, there is a risk that the ‘emergency’ (which is ultimately one of the missing infrastructure of culturally competent engaged Indigenous problem solving) will continue ad nauseum.
Toni Bauman is a Visiting Research Fellow at AIATSIS and was editor of the Aboriginal Law Bulletin and the Indigenous Law Bulletin between 1996 and 1998.
 Rex Wild and Pat Anderson ‘Ampe Akelyernemane Meke Mekarle “Little Children are Sacred”: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse’ (2007), Recommendation 1, 22; and Combined Aboriginal Organisations of the Northern Territory, ‘A Proposed Emergency Response and Development Plan to Protect Aboriginal Children in the Northern Territory’ (2007) 8.
 Toni Bauman, Final Report of the Indigenous Facilitation and Mediation Project July 2003-June 2006: Research findings, recommendations and implementation Report No 6 (2006) NTRU, AIATSIS <http://www.ntru.aiatsis.gov.au/ifamp/research/pdfs/ifamp_final.pdf> at 13 July 2007.
 It may be the growing recognition of this that has brought about changes in the ‘national emergency’ approach from its initial abruptness to using terms such as ‘scoping exercises’, ‘survey’ and ‘visiting teams’.
National Alternative Dispute Resolution Advisory Committee, Indigenous Dispute Resolution and Conflict Management (2006), Recommendation 4, 23.
 I acknowledge the contributions of mediator, Rhian Williams to a number of ideas in this paper.