Outstation policy - how we got from there to here
Paper by Greg Marks, Canberra-based international lawyer and consultant specialising in international human rights law, in particular Indigenous rights - October 2009
Outstation policy - how we got from there to here
Current policy settings in regards to outstations and similar small to medium sized remote discrete Indigenous communities are deeply antagonistic. When I refer to outstations I am referring to outstations, homelands and pastoral excision communities.
Government support for outstations is minimal at best.
The long term goal is that outstations, by and large, will disappear. This is true for all Australia but the main impact is on the Northern Territory as this is where the outstations and homelands movement is most developed.
Today I want to trace briefly how we have got to this situation. I want to probe whether the current policy reflects benign neglect and policy confusion, or whether it is something more deliberate.
I do not believe the policy is simply well meaning but misguided or misinformed - it is in fact deliberate. It has a purpose and a history.
From the late 1930's through to the late 1960s the Northern Territory Administration set up a network of settlements. The major remote NT communities are the legacy of the assimilation era.
Although they have different histories, these settlements were basically an exercise in social engineering. The objective was to transform remote, nomadic, traditionally-oriented Aborigines into a settled community-based society - settlements were to be the half way houses to urban living, places where the skills of keeping house and regular work habits could be instilled.
This assimilation vision has reappeared with the designation of larger communities as ‘hub centres' or ‘growth centres', which are the assimilation settlements rebadged.
The situation of outstations is to be viewed in the historical context of these settlements created through to the 1960s. The story of the major settlements is well documented. There is little doubt that the new communities were for many Aboriginal people a social and personal disaster. To a significant degree the outstation movement, which got properly underway in the mid 1970s, was a reaction against the negative effects of settlement life.
The arrangements for self-government in 1978 are of critical importance. The MOU in respect of self government financial arrangements, dealt, amongst other things, with ‘Assistance for Expenditure on Aboriginals'. The MOU stated that:
Overall responsibility for policy planning and co-ordination in respect of Aboriginal affairs will remain with the Commonwealth which may provide finance for special measures to assist the Aboriginal people of the Northern Territory as appropriate.
Probably that arrangement is still in place, although the Overarching Agreement On Indigenous Affairs between the Commonwealth and the NTG of 2005 may be thought to have revised the MOU. Regardless, the Commonwealth has clearly conformed its policy preeminence in respect of the Northern Territory through the NTER.
The specific arrangements at self government for funding Aboriginal communities are found in correspondence during 1979 between the Northern Territory Chief Minister, Mr Everingham, and the then Minister for Aboriginal Affairs, Senator Chaney.
Senator Chaney agreed to the transfer of finances and responsibility for municipal and local government type services for Aboriginal townships to the Territory.
The Commonwealth retained responsibility for the provision of services to small communities on Aboriginal land and on pastoral properties. Senator Chaney did note a continuing role for the Territory Government in respect of outstations in relation to the provision of water supplies.
He also noted if the NTG could show its capability and bona fides in respect of the larger communities, the Commonwealth would consider transferring responsibility for the smaller outstation and similar communities at some time in the future.
These arrangements are worth noting in some detail. They set up the bifurcated system of administration in respect of Aboriginal communities that was to remain in place in the Territory until 2008 and which was to give the administration of Aboriginal affairs in the Territory some of its unique features.
Under these arrangements the Territory had primary responsibility for the large communities, mediated through local government councils, and the Commonwealth had responsibility for the approximately 500 other communities, of varied sizes and types, loosely grouped under the generic CHIP funding heading of ‘outstations'. The CHIP program was usually implemented through outstation resource centres.
The term ‘outstations' does not mean outstations, as such. It denotes a funding responsibility category. This terminology issue has confused and confounded discussion over recent years. In this sense ‘outstations' simply means all communities other than the approximately 70 or so for which the NTG had responsibility, on the basis of the 1978 MOU, up to 2007. At least 500 communities remained under the Commonwealth umbrella, representing a wide range of settlement types.
These 500 are the communities for which there will be no closing the gap, under current policy settings. I do not think the truly bizarre nature of this situation has been fully grasped to date, as everyone has focused on whether outstations are a good thing or not without realizing the wide implications of the policy.
But the wider issue is the fate of 500 communities, many of which but not all are typical outstations. Some are communities that have grown from small outstation beginnings to be significant well established communities with considerable built infrastructure. Some are medium sized pastoral excision communities.
The small communities were administered by DAA, then by ATSIC, which developed comprehensive and quite stringent outstation guidelines, and then by DIMIA and FaHCSIA. Under FaHCSIA a moratorium froze CHIP funding for outstation housing. The moratorium contributed significantly to the backlog and increasingly dilapidated state of outstation housing and related infrastructure. This is not widely known.
Then in February 2007 a review of CHIP, ‘Living in the Sunburnt Country', without adducing any evidence, finally killed off any prospect that Commonwealth funding would be resumed for public housing on outstations.
One interesting question is whether, when the Commonwealth finally dumped outstations on the Territory some 30 years later, the Territory had ever showed the intention and effectiveness that Chaney had been looking for. Had anything really changed since 1978? Had the Territory shown a willingness to resource its communities adequately? Had they prospered under Territory control? Clearly not - the key question then is why hand over outstations to a Territory Government that never coped with the responsibilities it already had?
Revision of the 1978 arrangements - the MOU of September 2007
The Overarching Agreement on Indigenous Affairs between the Commonwealth of Australia and the Northern Territory of Australia was signed by the former Prime Minister, John Howard and the former Chief Minister, Clare Martin, on 6 April 2005. It was the first bilateral agreement to result from the National Framework of Principles for Delivering Services to Indigenous Australians endorsed by the Council of Australian Governments (COAG) in June 2004.
These principles provided for the streamlining of service delivery, with the objective of addressing jurisdictional overlap and rationalising government interaction with Indigenous communities. This principle required:
negotiating bi-lateral agreements that provide for one level of government having primary responsibility for particular service delivery, or where jurisdictions continue to have overlapping responsibilities, that services would be delivered in accordance with an agreed coherent approach.
A process of discussion was then commenced in respect of the planning, co-ordination, management and provision of essential services to the smaller Indigenous communities beyond the (then) 72 communities already serviced by the Northern Territory. There seemed to be overlap or duplication here.
These negotiations were, at that stage, primarily, from the Commonwealth perspective, about the divesting itself of functions that it saw as properly belonging to the states and territories.
However, negotiations were somewhat derailed by the ‘out of left field' attack at the time by conservative commentators on outstations as ‘cultural museums', which was echoed at political levels. Quite quickly policy skepticism about outstations became entrenched policy hostility to outstations. This hostility to outstations clearly influenced the final outcome of the negotiations.
Agreement was reached in the dying days of the Howard Government with the signing in September 2007of The Memorandum of Understanding Between the Australian Government and the Northern Territory Government on Indigenous Housing, Accommodation and Related Services September 2007.
The 2007 MOU bookends the 1978 MOU. It is, in my view, the single most important document in Aboriginal policy in respect of the Territory over the past 30 years. It also merits close attention. The animus in current policy settings against outstations is clear in the MOU.
The MOU transfers the responsibility for municipal and local government type functions for communities classed as outstations to the NTG. It provided a totally inadequate transfer of funding of $20m a year for three years (since improved a little).
That money is not intended for housing. No money is intended for housing. Paragraph 17 states categorically that ‘No Australian Government funding will be provided to construct housing'. There is no criteria of need, viability, size etc. Just a blanket ban on outstation housing. The MOU confirms and makes permanent the moratorium that had existed under CHIP on Commonwealth funding for new housing on outstations.
The argument about the ALRA land being private land is irrelevant. The status of the land before and after the MOU has not changed. The policy has - it is not to build houses on the 500 communities classed as outstations.
This is a policy designed to achieve the gradual deterioration of the housing stock of these communities. As houses get increasingly crowded, as they get to the end of their life, the housing will become increasingly unfit for human habitation. There will be no new outstations, and there will be no new houses on existing outstations. Outstations are to be left to rot, slowly.
If any new houses are to be provided that will be by the communities themselves. Some may be able to do so, but basically this is deliberate abrogation of responsibility for social housing in 500 communities.
The animus against outstations is at Commonwealth level. Outstations had often been an irritant to the Northern Territory as it grumbled about and contested with the Commonwealth over control of Aboriginal communities, but the policy to starve outstations of resources comes from the Commonwealth level.
The extent to which the NTG now falls into line with the Commonwealth is demonstrated by the NTG Headline Policy Statement ‘Outstations/homelands policy' of May 2009 and also by ‘A Working Future' May 2009. These documents simply replicate Commonwealth policy with an NT Government masthead.
By contrast, in May 2006 the then NT Minister for Housing and the Minister assisting the Chief Minister on Indigenous Affairs, Elliot McAdam, in a media release entitled ‘Don't Walk Away from Outstations and Homelands' called on the Federal Government to continue to support outstations and homelands.
The MOU of 2007 was an offer the NT had to accept - as is made clear in the covering correspondence between Claire Martin and John Howard. The NTER brutally affirmed the Commonwealth's dominance. The implication is that it is largely a waste of time trying to change the position of the Northern Territory administration - they have been reduced to mere ciphers of the Commonwealth.
There was no consultation with the Aboriginal communities affected by the transfer of responsibility for outstations.
The second thing to note is that the outstations policy does not stand alone. It is part of a package in respect of the Aboriginal Land Rights Act (Northern Territory) 1976 (ALRA), and it is, at a higher level of generality, part of the project of modernising Aboriginal society. The project of the Australian Government is to renovate Aboriginal society and to push to one side its traditions and mores. Traditional authority is seen as constituting a significant, if not the key, obstacle to Aboriginal advancement. In this perspective (and we see this approach in the writings of Peter Sutton, Inga Clendinnen and others) many of the problems facing Aboriginal society are located within that society and its allegedly inherent inability to adapt to modern life.
In the NT the legislative locus of such traditional authority is the ALRA, the provisions of which enshrine decision-making is the province of the traditional owners per the requirement for informed consent in respect of decisions affecting ALRA land.
The problem for policy makers in their project of modernising Aboriginal society is how to remove from the ALRA the decision-making powers of traditional owners without actually repealing this iconic act - which would be politically impossible.
There is a two pronged approach. Most Aboriginal people live in the larger townships on ALRA land, such as Wadeye, Maningrida, Hermannsburg, Yuendumu etc. Traditional owners are alleged to subvert housing arrangements to their own ends. The solution is leases - leases take the traditional owners out of the equation.
Land rights still exist on paper, but in reality they have been extinguished, de facto if not in law (de jure). This is what, it seems to me, the leases are about - they are not about security of assets, they are about power.
However, as is often pointed out, leases will affect only a very small proportion of the land mass covered by ALRA. But they will affect the majority of Aboriginal people resident on ALRA land.
However, such a strategy is incomplete. It leaves available choices about lifestyle in respect of the larger part of the Indigenous estate - if it is possible to live relatively independently away from the large townships there is always an option, and outstations are on land still controlled by the traditional owners. If the process of modernisation and renovation is to succeed, the viability of outstations and homelands has to be undercut. Without a population base, especially a growing population base, the authority of traditional owners, even if remaining on paper, will no longer relate to the lived experiences of most of the Aboriginal population.
This is the other half of the agenda of winding back the underlying rationale of the ALRA, that is recognition of traditional links to land and all that that entails. The countryside is to be depopulated, so that, in effect, the only viable place to live, in terms of services and employment, especially for younger people, will be the townships.
Governments and bureaucrats can be patient - they are prepared to wait out the older generations - to let them live out their time in the bush. It is the younger generations that are the target in this contemporary version of the assimilation game. Viable, enterprising, well serviced, autonomous, outstation and homelands communities located on ancestral grounds cannot be countenanced. The only exception will be those communities very close to hub communities - which are seen more as satellite suburbs than outstations.
If this seems unduly paranoid, that would be to underestimate the architects of these policies. These dedicated public servants and politicians have a vision and they are ruthless in pursuing it. The bottom line is assimilation. Assimilation is seen today as the saviour of Aboriginal society, just as it was in Paul Hasluck's time.
Does it matter what is driving the policy? I think it does. If we believe it is just bumbling stupidity, ignorance or failure to listen, we will be combating the wrong foes - it will be like chasing phantoms. There is a deeper racial agenda at work. Governments today are about reconstructing Aboriginal man (or woman), whether we call it behaviour modification, social engineering, or whatever. We need to recognise that basically this is a political issue. It will only be resolved politically.
The policy battle is essentially at the Commonwealth level. The NTG is largely irrelevant. Outstations policy is a key plank of the current Commonwealth Government's approach to Indigenous policy - a fundamental plank. This plank will not be given up lightly. Houses will only be built if the policy changes.
We live in a democracy, and those policy mandarins who arrogate to themselves the right to know what is good for Indigenous Australians can be challenged. It is not going to be an easy task. But, according to media reports, the first policy cracks are showing.
 Memorandum of Understanding in respect of Financial Arrangements between the Commonwealth and a Self-Governing Northern Territory 1978.
 Ibid, para 44.
 Overarching Agreement on Indigenous Affairs between the Commonwealth of Australia and the Northern Territory of Australia 2005 - 2010 at http://www.fahcsia.gov.au/sa/indigenous/pubs/general/bilateralagreements/northern_territory/Pages/default.aspx accessed 24 October 2009.
 Letter from Senator Chaney to the Chief Minister Paul Everingham 27 June 2009.
 See ATSIC, National Homelands Policy - ATSIC's policy for Outstations, Homelands and New and Emerging communities, National Housing and Infrastructure Centre 2000.
 FaCSIA Community Housing and Infrastructure Program (CHIP) (E-sub program guidelines 2006-07)
 FaCSIA, ‘Living in the Sunburnt Country', Final Report February 2007, recommendation 18. See also article in response to the Report ‘Howard says no to bush homes for Aborigines' by Patricia Karvelas, The Australian, March 6, 2007.
 Overarching Agreement see footnote 3 above.
 National Framework of .Principles for Government Service delivery to Indigenous Australians - June 2004 at http://www.facsia.gov.au/internet/facsinternet.nsf/indigenous/framework_principles.htm
 Overarching Agreement, at Attachment A.
 This approach is also to be found, expressed a little less bluntly, in the National principles for investment in remote locations attached to the COAG National Partnership Agreement on Remote Service Delivery at http://www.coag.gov.au/intergov_agreements/federal_financial_relations/docs/national_partnership/national_partnership_on_remote_indigenous_housing.rtf accessed 23 October 2009.
 Letter from Claire Martin, Chief Minister NT, to John Howard, Prime Minister of 13 September 2007.
 See, for example, Lindsay Murdoch, ‘Living in fear of losing everything', The Age, October 17 2009 at http://www.theage.com.au/national/living-in-fear-of-losing-everything-20091016-h17l.html accessed 23 October 2009.
Reproduced with the kind permission of Greg Marks.