Jurisdictional devolution: Towards an effective model for Indigenous community self-determination

Abstract

Over a decade ago the House of Representatives Standing Committee on Aboriginal Affairs and the Royal Commission into Aboriginal Deaths in Custody concluded that the essence of self-determination is the devolution of political and economic power to Indigenous communities. Self-determination was defined to mean Indigenous people having control over the ultimate decisions about a wide range of matters including political status, and economic, social and cultural development, and having the resources and capacity to control the future of their own communities within the legal structure common to all Australians. This paper proposes that the concept of jurisdictional devolution could provide a key framework for the practical implementation of self-determination at the community level for Indigenous Australians, and proceeds to examine the nature of the concept, its application, and the challenges and opportunities it presents. It argues that the concept of jurisdictional devolution can be used as an organising perspective or frame of reference. This enables us to develop a policy-relevant language with which to discuss the implementation of local-level self-determination, and connects theoretical propositions about inherent rights to self-determination, and the practice of achieving it in a workable form. The paper begins by developing an operational definition for the term 'jurisdictional devolution'. It then considers the question: why devolve? What are the imperatives for jurisdictional devolution, the likely advantages and benefits? The discussion focuses on practical design and implementation by examining the lessons that can be drawn from two case studies of devolution in the arena of welfare. The first is from the United States of America, where a process of welfare devolution to Native American Indian Tribes is in the early stages of implementation. The object of this case study is to extrapolate lessons and insights that can be applied to the design and implementation of a relevant Australian model.The second case study presents a preliminary proposal, developed by a central Australian community, for the future devolution of particular components of welfare jurisdiction. Against the backdrop of that broad comparative perspective, the paper proceeds to consider the factors that will be relevant in Australia for constructing a framework for jurisdictional devolution. A key issue is what might constitute the most effective and relevant Indigenous boundaries and units for devolution. To whom or what would jurisdiction be devolved? In other words, who constitutes the 'self' in self-determination? A 'geography of devolution' is proposed in the form of a flexible aggregation model-regionally dispersed, layered community governance-which has both community and regional elements. The paper concludes by drawing together these lessons, limitations and practical options in order to highlight the operating principles and types of strategic action that would need to inform the design and implementation of a workable framework for jurisdictional devolution in Australia