Indigenous Governing Authorities — Creating Jurisdictional Space for the Implementation of Indigenous Law

From time immemorial, Aboriginal and Torres Strait Islander nations have worked both to fulfil their obligations to Country and to achieve their communities’ development aspirations. In the contemporary era, these efforts have included success at (re)acquiring an array of property rights – through, eg, freehold purchases, native title determinations, declarations of Indigenous Protected Areas, varied co-management agreements, and recognition of national heritage or World Heritage status. Unfortunately, Australian Indigenous nations face a dilemma: current mechanisms in Australian law, including those provided by the CATSI Act, state incorporation legislation and co-management agreements, do not provide governance structures that simultaneously support First Nations to fulfil their obligations to Country under their own lore/law and to manage their external relationships with local, state, national and international governments under settler colonial law.

This research project builds upon ongoing Indigenous nation building (INB) collaborations and is proposed by network of prominent Indigenous nation builders from the Barkindji, Gugu Badhun, Gunditjmara, Ngarrindjeri, Nyungar and Wiradjuri Nations, and the Indigenous Nations and Collaborative Futures (INCF) research hub within Jumbunna Institute of Indigenous Education and Research at UTS to explore whether a new model of collaborative governance might address this concern. In particular, it explores the potential of statutory authorities, embedded in Commonwealth or state law, to facilitate appropriate land jurisdiction within a genuinely pluralist legal structure. The mechanism would be assessed on its capacity to meet individual First Nations’ needs, provide for efficient management of nations’ internal and external responsibilities, outlast settler political cycles and elevate the application of Indigenous law. As these measures suggest, the proposed research is inherently practical – yet the focus on legal pluralism also engages critical theoretical and intellectual questions (see Binney 2009, Kymlicka 2000, Tully 2000).

The specific aims of the project are to:

1. Investigate statutory authority models (Australian and international) that share land jurisdiction between Indigenous and non-Indigenous polities;
2. Investigate the legal-political environments across Australia to identify opportunities for Indigenous jurisdiction of this sort;
3. Investigate the legal-political environments of Australian First Nations to identify their jurisdiction and accountability requirements; 
4. Propose statutory authority models for First Nations to consider;
5. Host an inter-nation summit for First Nations and relevant observers to strategise next steps for cultural governance within a pluralist society. Research would proceed using an Indigenous nation building (INB) methodology created through previous research collaborations (Vivian et al 2017). INCF has ongoing collaborations with the Gugu Badhun, Gunditjmara, Ngarrindjeri, Nyungar and Wiradjuri nations which, although at different stages, seek to self-govern.

Their experience demonstrates that sharing jurisdiction requires new self-governance models. This provides a running start in implementing the methodology.

Four streams of work (some occurring simultaneously) follow: an initial face-to-face research co-design meeting and subsequent monthly virtual progress meetings; engagement with Elders, leaders and key community members about First Nation jurisdiction and accountability needs; desktop research on Indigenous jurisdiction-sharing authorities; and a summit at which models are weighed and strategised.