Limerick, Michael --- "Indigenous Community Governance in Queensland 1984 - 2000" [2001] IndigLawB 1; (2001) 5(5) Indigenous Law Bulletin 4

Indigenous Community Governance in Queensland 1984-2000

By Michael Limerick

The purpose of this paper is firstly, to review developments in Indigenous community governance in Queensland since the passage of the Community Services (Aborigines) Act 1984 and the Community Services (Torres Strait) Act 1984, and secondly, to distil some of the lessons of this experience as guidance for the current review of the Community Services Acts.

History of the Community Services Acts

The Community Services Acts were enacted in 1984 in response to years of pressure from Indigenous groups for greater land rights and self-determination for Queensland’s Indigenous communities. Important factors included the pressure for change from the Federal Government and the international scrutiny brought by the 1982 Brisbane Commonwealth Games.

Community Councils had been created on Aboriginal reserves and missions and Torres Strait Islander communities under legislation dating back as early as the 1930’s. Under that system, however, the Councils had a primarily advisory role with limited powers and the Government tightly controlled the administration of the communities. The Government also owned the land on which the communities were situated.

The significant changes brought about by the Community Services legislation were that:

• The Councils became incorporated as legal entities;
• The Councils were given full authority over the administration of local government services in their communities;
• The Councils were vested as trustees of Deed of Grant in Trust (‘DOGIT’) land granted under the Land Act 1964.

Despite the passage of the legislation, the Government maintained a central role in the administration of the communities in the years following the legislation. In the late 1980’s, however, the Department of Community Services commenced a process of handover of the core functions of community government to Aboriginal and Island Councils. A concern sometimes expressed is that this handover of responsibilities took place without the requisite transfer of skills to Indigenous communities.[1] Whatever the cause, a key policy issue over the last decade has been the perennial struggle for Aboriginal and Island Councils to meet the standards of accountability expected by the State Government for the use of public funds.

While the legislation was a significant advancement on the regime previously in place, many questioned its appropriateness as a vehicle for genuine Indigenous community self-governance.[2] A common concern was that the legislation represented a Western local government model of governance that was simply transplanted into Aboriginal and Torres Strait Islander communities.

Reviews of the Legislation

Legislation Review Committee (‘the LRC’)

In response to dissatisfaction with the Community Services legislation, the new Labor government appointed a LRC in 1990 to examine the legislation with the aim of recommending to the Minister ‘a new legislation framework consistent with Government policy for Aboriginal and Torres Strait Islander communities to manage and control their own destinies.’[3] The LRC was comprised of five Aboriginal and Torres Strait Islander community representatives (chaired by Mr Eric Deeral), who consulted widely across DOGIT communities in Queensland in 1990 and 1991.

The LRC criticised the appropriateness of the Community Services legislation for Indigenous communities, and identified a number of problems with the system of community governance, including:

• The legislation assumes the primary focus of community governance is the delivery of local government services. In practice, Aboriginal and Island Councils are asked to take on a much wider role, taking in ‘almost every aspect of the functioning of their communities.’[4] A local government model is not adequate and was never intended for this broad community governance role.
• The governing structures and decision-making processes in the legislation are not appropriate to Indigenous communities’ customs and traditions.
• The Council structure does not allow adequate representation for all the sections of an Indigenous community. For example, some communities have up to twenty different clan or language groups, yet the legislation allows only an open election for three, five, seven or nine Council members.

The LRC recommended that new legislation be passed to provide a framework for self-government in Queensland’s Indigenous communities. The central aspects of the proposed legislation were as follows:

• New community government structures could be created for scheduled areas through each community adopting a constitution for its area, by referendum passed by 70% of those who vote (and a majority of community members).
• The legislation would not replace the Community Services legislation. Its provisions would only be accessed if a community chose to do so.
• The legislation would provide opportunities for non-DOGIT communities to develop a community governing structure.
• The powers available to a community government would be much broader than simply local government powers ie they would include education, housing, health, employment and training, justice, police, corrections and land management.
• The legislation would require Government departments to assist communities in the development and implementation of a community development plan.

Parliamentary Public Accounts Committee (‘PAC’)

The PAC conducted a series of reports from 1990 onwards on the ‘Financial Administration of Aboriginal and Island Councils.’[5] Like the LRC, it also questioned the appropriateness of the Community Services legislation in the context of Indigenous community governance.

The PAC expressed the view that the inappropriateness of the community government system was the underlying cause of the problems of financial accountability of Aboriginal and Island Councils. It recommended that the Government negotiate with each DOGIT community to determine an appropriate structure and constitution for a representative Community Council in each community.[6]

Government Response – The Alternative Governing Structures Program

The Government did not accept the overall recommendation of the LRC to pass broad framework/enabling legislation for Indigenous community government. The Department preferred a more incremental and case-by-case approach to reforming community governing structures. This was to occur through the new Alternative Governing Structures Program (‘the AGSP’), which would provide funding to Indigenous communities to examine their current arrangements and develop alternative governing structures, which could then be presented to the Government for consideration.[7] The AGSP aimed to facilitate a ‘bottom-up’ approach to developing new governing structures – each community would undertake community-based planning to devise its own model, rather than have the Government impose a new standard model.

Alternative Governing Structures Research

To support the implementation of the AGSP, in 1994 the Department commissioned a research project to examine the various models of Indigenous governing structures in existence in other parts of Australia and overseas (such as Canada, the United States, Alaska and Greenland).[8] The research identified that there are two main responses which governments have taken in relation to Indigenous self-government.

1. Passing broad enabling legislation to provide a framework for Indigenous communities to set up their own community government.



2. Taking a community-based approach by supporting individual communities to design their own governing structures, with Government then responding to these proposals on a case-by-case basis.

An example of framework / enabling legislation is the Indian Reorganization Act, passed by the United States in 1934. This Act allowed Indian tribes to adopt a constitution establishing the form of government the tribe wanted for its reservation. In reality, because tribes had little access to expertise or information to devise their own governing structures, most tribes adopted the model constitution produced by the Government. This model created a Western style local council and contained many provisions requiring the approval of the Government.[9]

The AGSP research found that this is a common shortcoming of framework or enabling legislation for Indigenous community governance.[10] In the absence of adequate information, resources and support for local communities in developing local governing structures, any flexibility provided by framework legislation is not utilised. Communities simply adopt the model being offered or revert to the current system they know.

The LRC’s proposal was for broad enabling legislation, whereas the AGSP was clearly a community-based response. Interestingly, the AGSP research found that, as a result of the failure of framework legislation to achieve self-determination for Indigenous communities, most of the jurisdictions reviewed had developed a community-based response.[11] For example, Canada’s current policy is known as the Community-Based Self-Government Negotiations Scheme, while in 1988 the United States introduced the Tribal Self-Governance Demonstration Project, which has now been made permanent. Like the AGSP, both these schemes focus on a flexible, community-based approach to develop alternatives to an existing legislative framework that has been deemed inadequate for the purposes of Indigenous community government.

Experience from the AGSP

Following a pilot project at Aurukun, the AGSP was rolled out by the Queensland Government across Queensland from mid-1995. Guidelines were circulated and regional officers visited Indigenous communities to talk about the opportunity the Program presented. The Government’s peak Aboriginal and Torres Strait Islander advisory body, the Overview Committee, took a keen interest in the AGSP and promoted it widely with a series of community workshops. While the Program was available to non-DOGIT Indigenous communities as well as the DOGIT communities operating under the Community Services legislation, it was expected that the DOGIT communities would have the strongest interest in examining their existing governing structures.

The outcomes from AGSP were not at all what was expected. An analysis of the AGSP experience gives rise to several major themes.

Weaker demand from DOGIT communities than non-DOGIT communities

The demand for AGSP funding was relatively weak from DOGIT communities in comparison with the strong response from non-DOGIT communities. In the three financial years that the Program operated, only 3 of the 16 grants were made to DOGIT communities (Lockhart River, Cherbourg and Murray Island).[12] There are a number of possible reasons for this. A central factor may be the vested interests of members of Community Councils in maintaining the current regime.

Many non-DOGIT communities, on the other hand, were eager to embrace the new Program. Many of these communities suffered from lack of internal focus and coordination, and chronic under-resourcing by Government agencies. They saw the AGSP as an opportunity to establish workable governing or decision-making structures to bring their communities together and to provide a united voice in order to attract funding and services from outside sources.

It appears, therefore, that the communities with the strongest interest in looking at alternative governing structures were the communities with no formal governing structures at all.

Communities want to focus on priority issues, not governing structures

The principal purpose of AGSP was to provide funding for Indigenous communities to undertake community-based planning for alternative governing structures. However it soon became apparent that communities were not interested in planning that focused solely on governing structures. The issue of governing structures is, perhaps, too esoteric or remote from the everyday concerns facing Indigenous communities. Rather, the real demand was for funding for planning which focused on the priority issues of concern to communities, such as health, housing, education, land matters or justice issues. In response to this, the guidelines of the Program were broadened to allow applications for funding for planning for governing or decision-making structures in relation to any issue. In other words, projects might range from planning the establishment of a local health committee to planning an entirely new community governing structure.

In response to demand, therefore, AGSP became a de facto community planning program. Although it was a long way from the Program’s original focus on governing structures for DOGIT communities, the community planning direction was consistent with the Program’s broad objective of facilitating self-determination for Indigenous communities. In 1998-99, as a logical consequence of the evolution of the Program, AGSP was merged with a range of other Programs that had planning components to form the Community Planning Assistance component of the new Community Development Program.

A lack of awareness and information about governance issues is a major obstacle

Under the AGSP, there were few instances where alternative governing structures in the formal sense were established. As mentioned above, a major factor was the lack of interest in governing structures. An equally important factor, however, was the apparent lack of awareness of governance issues in Indigenous communities. A common problem where the issue of governing structures was discussed in DOGIT communities was that few people had an awareness or understanding of the existing Community Council system and how it fits into the overall system of government in Queensland. This lack of understanding is most likely the result of a combination of the lack of information about governance and the remoteness of broader issues of governance to everyday life in communities.

Another obstacle was that few people were aware of alternative models of government that Indigenous communities could consider. A case in point was the Old Mapoon community. This community had been asking for Community Council status since the late 1980’s when the DOGIT was granted to traditional owners of the community. As a result of the criticisms surrounding the appropriateness of the Community Services legislation, the Minister of the time refused to create another Council under the legislation and instead suggested that Old Mapoon use AGSP funding to plan a better community governing structure. After receiving a grant of $49,000 in 1994, the community held a number of workshops to look at alternative governing structures. The outcome was that the community reiterated its demand for an Aboriginal Council under the Community Services legislation. The planning process does not appear to have included any genuine discussion of alternative models. Ultimately, the decision to request an Aboriginal Council was founded on the pragmatic belief that this would be the best way of guaranteeing State funding.

The level of expert assistance to communities was clearly another important factor in the likelihood of success in the development of alternative governing structures. In the case of Old Mapoon, the community could clearly have benefited from better advice on alternatives. The Tamwoy, Rose Hill, Aplin, Waiben and Quarantine (‘TRAWQ’) community on Thursday Island, on the other hand, was assisted to contract a lawyer for a short time to assist with the development of its constitution. The TRAWQ Community Council has a number of unique features such as a Council of Elders and an advisory body of Christian Spiritual Leaders. Its procedures for operating are appropriate to the Torres Strait Islander community.

Current Review of the Community Services Legislation

The landscape of Aboriginal and Torres Strait Islander affairs has changed greatly since the Community Services Acts were passed in 1984. Important developments include increased Indigenous legal rights through native title and a shift in the way Governments deal with Indigenous communities away from welfare and paternalism toward self-determination and partnership. The Queensland Government is currently in the process of negotiating a ‘Ten Year Partnership’ with the Aboriginal and Torres Strait Islander people of Queensland. This process will establish a new framework for improving the interface between the Government and Indigenous communities. The Government has also indicated its preparedness to look at alternative approaches to Indigenous service delivery through its support for the Cape York Partnerships process instigated by Noel Pearson.

It is in this changing policy environment that the Community Services legislation is being revisited to assess whether it is an effective framework for Indigenous community governance in Queensland in the 21st century. Moreover, is it an appropriate vehicle for meeting Indigenous community aspirations in the area of community governance?

Many Indigenous communities have continued to call for reform of the legislation. In June 1999, the Department agreed to a request from the peak body for Aboriginal Councils, the Aboriginal Coordinating Council (‘the ACC’), for funding to review the legislation. Following consultations conducted in each Aboriginal DOGIT community in 2000, the ACC will submit its recommendations early this year to the Minister for change to the legislation.

Future Direction of Indigenous Community Government in Queensland

The history of the Community Services legislation has shown that the two predominant political imperatives which have dictated policy are firstly, the desire of Government for greater accountability of Aboriginal and Island Councils, and secondly, the desire of Indigenous communities for self-determination through more appropriate and effective community government. Although these two imperatives are often seen as being in conflict, this should not necessarily be the case. As the PAC recognised, the problems in accountability for community governments may ultimately be resolved not by further regulation, but by community governments which are culturally appropriate and properly representative, and therefore, more accountable to the members of the communities they serve. However, the history of the Queensland Government’s programs and strategies described earlier demonstrates that a new approach will be required to achieve this objective. With respect to the two broad policy approaches, enabling/framework legislation and the community-based approach, the lessons of the past 16 years suggest that attention is needed in both areas.

The Legislation

The key finding of the LRC and the PAC was that the legislation should incorporate flexibility for communities to develop alternative models and ways of operating for their community government. This issue has never been addressed in the legislation. The current legislation contains a limited degree of flexibility in that key provisions about the Council structure and mode of election are contained in the Regulations. There is therefore some scope for different governing structures to be implemented through amendments to the Regulations. This occurred in 2000 in the case of Saibai Island Council, where the Regulations were amended to enable clan-based representation.

The difficulty with this situation is that every community’s governing structure would have to be passed as an amendment to the Regulations, and many provisions about Councils are set in concrete by the Act itself. As a solution to this, the LRC’s recommendation that the Act allow each community to adopt a constitution tailored to its circumstances, deserves further consideration. The concept of communities adopting constitutions is currently being explored further.

As the LRC and the PAC envisaged, the major benefit of such an amendment is that a community could spell out how its Council will be structured and how it will run, in a way that meets the community’s specific aspirations and local circumstances. In particular, a constitution could take into account matters such as the cultural composition of the community and incorporate traditional governance and decision-making models appropriate to the community members. For example:

• A constitution could provide for each clan or family group to be represented;
• The important role of elders could be acknowledged through a Council of Elders, with power to advise the Council or veto decisions regarding traditional matters;
• The role of traditional owners could be recognised in the governing structure through guaranteed representation on Council or through a traditional owner advisory body or a traditional owner body with a power of veto over land matters;
• The constitution could spell out processes for the Council to make decisions that are consistent with traditional decision-making, or which ensure that traditional owners or other important people are consulted.

Community-Based Approach

While legislative reform is clearly needed, the lesson from experience in other jurisdictions discussed earlier is that a change to the legislation to facilitate alternative governing structures will achieve nothing without the required assistance to communities to generate new models appropriate to their needs and aspirations. Furthermore, the overwhelming lesson from the AGSP is that there is currently insufficient capacity and information in many communities to enable a full and informed consideration of community governance issues. Moreover, the AGSP experience shows that the issue of community governance is best approached in the context of broader community planning processes that focus on a community’s key issues of concern.

Once a more flexible legislative framework is in place, the challenge for Government will be to support Indigenous communities in community-based planning and in their consideration of alternative governing structures. This support might include assistance with planning methodologies, information on models operating in Indigenous communities elsewhere and technical assistance in setting up structures and organisations, such as drafting constitutions.

While legislative reform can be achieved in a time frame of months rather than years, the evolution of new models of governance at the community level will be a much more long-term process. Some communities have already begun the dialogue necessary to explore new models of governance. The Mer (Murray) Island community in the Torres Strait is currently considering governance models that reflect traditional authority structures.

At present, perhaps the strongest spur for DOGIT communities to reconsider their governing structures is the need to work through issues surrounding the rapidly changing situation of land tenure on DOGIT communities. Many communities are in the process of working out how to balance the interests of traditional owners, who are gaining additional rights under native title legislation and the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991, with residents who have only an historical association with DOGIT areas. Alternative governance models have been generated by native title processes in other Indigenous communities, such as the Hope Vale Congress, which incorporates representatives of both traditional owners and historical associates.

Ultimately, more appropriate and effective community governance for Queensland Indigenous communities will only occur through the development of the capacity of community members to plan and implement strategies for change in their communities. Once it has achieved the important task of enhancing the flexibility in the Community Services legislation to meet Indigenous aspirations for community government, Government’s role will be only as a facilitator and as a resource for communities. The process of developing new governing structures can only be led by Aboriginal and Torres Strait Islander communities themselves.

Michael Limerick is a Community Governance Review Project Coordinator with the Department of Aboriginal and Torres Strait Islander Policy, Queensland. The views and opinions expressed in this paper are those of the author and not the Department of Aboriginal and Torres Strait Islander Policy.

[1] F Brennan, Land Rights Queensland Style: the struggle for Aboriginal self-management (1992) 104.

[2] For an excellent critique of the Community Services Acts, see Brennan, ibid.

[3] Legislation Review Committee, Inquiry into the Legislation Relating to the Management of Aboriginal and Torres Strait Islander Communities in Queensland: Final Report (1991) iii (Terms of Reference).

[4] Ibid, 9.

[5] Parliamentary Committee of Public Accounts (Qld) Financial Administration of Aboriginal and Island Councils – Report 2: Effectiveness of Councils, Support for Councils, Training, Report No. 8 (February 1991). Parliamentary Committee of Public Accounts (Qld), Report on the Financial Administration of Aboriginal and Island Councils, Report No. 27 (December 1993).

[6] Ibid, 5 (Recommendation 1).

[7] The AGSP Program Guidelines are reproduced in Australian Indigenous Law Reporter (1996)1(4)100.

[8] M Limerick, Office of Aboriginal and Torres Strait Islander Affairs (Qld), Discussion Paper on Alternative Governing Structures, (1994a); M Limerick, Office of Aboriginal and Torres Strait Islander Affairs (Qld), Resource Document on Alternative Governing Structures (1994b).

[9] R N Clinton, N J Newton and M E Price, American Indian Law: Cases and Materials (1991) 358-9. See also W Churchill, ‘American Indian Self-Governance’ in C J Minugh et al (eds), Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the USA (1989) 56; A Fleras and J L Elliot, The Nations Within: Aboriginal-State Relations in Canada, the United States and New Zealand (1992).

[10] Limerick (1994a), above n 8, 8. Limerick (1994b), above n 8, 11-12, 43-45.

[11] Limerick (1994a), above n 8, 4-6. Limerick (1994b), above n 8, 27-29, 42.

[12] One of the grants was made to Aurukun, which is in a similar situation to the DOGIT communities, but operates under different legislation, the Local Government (Aboriginal Lands) Act 1978.