The missing piece of infrastructure: Indigenous dispute management, agreement making and decision-making services


Russ Taylor

Thank you Toni and welcome everybody to this occasional seminar.  My name’s Russ Taylor, and I have the honour of being the Principal here at AIATSIS.  And my only role today is to introduce our presenter, Toni Baumann.  And I look around the room, I hardly think she needs any introduction at all, but nevertheless I’ve got a bio here on Toni.  I don’t profess to read it, it will take up half of the seminar time to read her achievements.  And given that she’s well known to most of you, Toni of course is Senior Research Fellow here at AIATSIS, and her title is Senior Research Fellow Governance and Public Policy in the Indigenous Country and Governance Section of our research program.  She’s an anthropologist, mediator, facilitator and trainer, widely published and extremely experienced.  And in the interests of brevity I will not try to give you a deep appreciation of that experience, other than she has I can say, put hand on my heart, and say that she knows an awful lot about the matters that she’s presenting on.  The title of the seminar, one of the longest titles in the history of our seminar program here at AIATSIS, I won’t read it out, but look, could you welcome Toni to the microphone.  Thanks Toni.

Toni Baumann

Thanks everyone.  This is a bit of an unusual seminar in its development, and I’ll tell you why in a minute after I acknowledge of course the traditional owners here, and you’ll find out in a minute I’m also acknowledging the traditional owners in Melbourne, for which I am pre-recording this seminar for an ADR conference that Native Title Services Victoria is holding.  If you look at the Native Title Services Victoria website you’ll find out all the details.  I’m sorry, I forgot to get them, but it’s in July, I’m going to be away.  But I was concerned to get on the program, because I wanted to give the audience and you, today, a sense of all the work that’s been done around this in the past, so that it’s not, as common, people reinventing the wheel.  I think in Melbourne at the time I have half an hour for this presentation, and that’s going to be a challenge, forgive me Melbourne if it goes a little bit longer and giving me the time.  But before I start I do want to acknowledge Mr Russ Taylor, AM.  

Alright, so my talk today is the missing piece of infrastructure towards national indigenous dispute management, it is a handful, agreement making and decision making services, or you could say engagement and consultation, or you could say peace building, or whatever terminology you wish to use.  But one of the reasons that I’ve been looking at this is because you often get asked “Well, you know, this is not indigenous dispute resolution, and why do you need a facilitator?”, and that sort of thing.  Well, I can tell you that I get calls all the time for facilitators, particularly indigenous ones, to work with people in communities.  This is no joke.  And that is because there are, the conditions at which people are sort of living in today and attempting to manage their disputes have significantly transformed.  So if you look at the demographics for example, there’s an increasingly younger population, and a premature death of elders who may have been responsible in the past for some dispute management processes.  

There’s huge mining projects that people are making decisions about, and uranium mining for example is not something that has been on an indigenous agenda in the past, and it’s something that has global implications.  Government business is, what’s the word?  Everywhere in indigenous communities, and in every sector.  The governance that people are required to manage in ORIC and under ASIC corporations.  The legislative requirements of the Native Title Act for example.  The external adjudication and third party facilitations of native title representative bodies who have legislative responsibilities for facilitating and managing decision making and disputes, mediators, anthropologists, judges, registrars, tribunal members, community dispute resolution centres, justice groups, restorative justice circle sentencing, and in people’s daily lives time waits for nobody anymore, and I’ll talk about the meaning of that in a minute.

So the other thing is in daily lives we have a totally different kind of aggregation of people, people living on other people’s country, now commonly referred to in native title as historical and traditional people.  A lot more people living together with a lot more diverse affiliations.  We have the stolen generations issues.  We have kinship relations that are now really pretty much right across Australia.  We have changed lifestyles where people are going to school and they’re employed and they’re having to go to incessant meetings, and we have the sort of sad demographics of substance abuse and other socio indicators.  So things are quite difficult for people, and extremely complex.

So the other thing is that there is no single model of indigenous dispute resolution, whether traditional or otherwise.  It is all contextual, as it always has been.  There’s a whole range of things that are described in the literature, often a lot of regional variation.  Regularly accounts of the incremental building of consensus where people are lying in camps, as Liberman describes in the early hours of the morning across campfires, shouting out to each other, to-ing and fro-ing between camps.  Decision making being contingent, and waiting to hear everybody’s opinion.  

Then you have the restitutional stuff like square up and pay back and facing of spears, which in most places these kinds of traditional customary resolution dispute processes are not allowed by white fella law, for want of a better word.  People separating themselves voluntarily from communities, or being forced to leave communities.  Peacemaking ceremonies such as the prune which Judy Atkinson talks about in The Macarada.  Or clan moots, sort of formal kind of discussions.  Or individual interventions where you’ll get people fighting and a certain kin will put themselves in the middle of the fight, because they know they’re not going to be hurt because of the kinship rules.  Or assigned individual mediation roles, and even through history, at least the history since colonialism, external requests to people like settlers and to anthropologists for example, and Peter Sutton has written about that.

So some of the fundamental understandings that have arisen out of the research that we’ve done are that the processes that people engage in determine their outcomes, their sustainability and their ownership.  And those processes have generally been extremely lacking.  The second thing is that conflict is nested in webs of systems and structures.  Often the kinds of conflicts that we’re looking at may look like they’re family disputes, but actually when you get down to it it can be a completely other different dispute that could have been handled, if say for example the water pump had been delivered to the community when it should have been, or, I don’t know, there’s many examples I can give to you of the ways in which we work together in systems, in governments, in organisations, between each other that is impacting on conflict in the community, and often exacerbating it.  We are all implicated.

Poor consultation processes, decision making, getting the decision making process right in the first place will go a long way to alleviating disputes.  And that means taking account of the interests that are at play.  So managing disputes and decision making is critical for everyone doing business with indigenous communities.  

One of the other fundamentals is that these services are not to be seen as add on to mainstream services.  They don’t work when they’re like that.  And we had a few years ago family relationship, indigenous family relationship mediators telling me how difficult it was to explain to their bosses the kinds of pressures and what they needed to do to be effective.  

The other thing is that decision making and dispute management is absolutely central to indigenous governance, which is critical to any kind of outcomes, and is absolutely intertwined with the governance of government, and of representative organisations.  And it’s dependent on the capacity of all.  

So the capacity needs amongst indigenous people and representative organisations, governments and development corporations ensuring decision making and dispute management processes are embedded in governance that match local priorities and interests.  Now, here we might think about culture.  One of the issues around culture, and recently there has been a critique of ADR as looking to internal dispute resolution, which is actually not what ADR does, as a solution, as a Utopian solution to some of the critical sort of native title conflicts that are out there.  And some of those particularly that relate to self-identification, are definitely, or can well be intractable.  But that does not mean to say that the kind of processes that I’m advocating cannot make a difference.  And sometimes they can have unexpected outcomes.

So identifying and exploring causes and potential solutions to problems.  Responding in meaningful and sustainable ways to changing government requirements and agendas, and ensuring equal partnerships.  These are all process issues.  And in saying that I can’t resist, and I’m sorry Geoffrey Richardson who’s here from PM & C, that the recent IAS funding arrangements have thrown people into total chaos.  It’s a great example of how conflict is embedded in systems.  So developing appropriate strategies to engage, manage and utilise technical expertise.

Now, I don’t know if I talk about this later, but what we have in a lot of, well, particularly in native title, but in other areas are experts standing up talking to people, nobody understands what they’re saying, and people go away less informed often than when they came.  So this is very important for facilitators to be able to manage how technical advice is being given to meetings.  And the third party person can actually observe whether things are being understood, how well they’re being understood, say “Hang on a minute, stop there, I didn’t understand you, so I don’t know how anybody else did”, and planning and implementing workable decisions and so on.  But it’s clear, and monitoring and negotiating and modifying strategies and solutions as required.  

And one of the pieces of work that I’ve been doing recently is around free, prior and informed consent, and what that invokes is that free, prior and informed consent is not a single outcome, conditions change, processes change, mining changes, the markets change, that there has to be some kind of ongoing processes around these kinds of decisions that take into account those changes.

So what are we getting usually?  Business as usual.  Big meetings and closed questions.  So this is why I got to this work in the first place, when I was working at the Northern Land Council.  You’d see lawyers getting up there, “Everybody agree?”, and people like, and outside the meeting you’d say “Well, what did you agree to?”, and people would have no idea.  And also these meetings are platforms for the performance of disputes, and they exacerbate disputes.  Unless they’re well prepared and planned, they’re useless.  And there are a range of ways of doing that, and I’m not going to get to them all today, but big meetings are often best just for rubber stamping a decision that has already been negotiated.

So one of the bases upon which I work is the satisfaction triangle.  And it’s been taken up by some organisations in their planning as well, which is interesting.  But it says that procedural, emotional and substantive interests all affect each other.  So a poor substantive outcome creates procedural issues and creates emotional issues.  Emotional issues, if people don’t think that they’re validated, will create a bad outcome which in turn creates more procedural issues, and so on.  There’s a web address there that can give you more explanation of that.

So I probably should have said this at the start, but I’m speaking from work in the Indigenous Facilitation and Mediation Project, which has really continued, and that was work in the native title context, with rep bodies, indigenous and non-indigenous mediators, the community justice sector, the Tribunal, Federal Court, and so on, and we had a range of workshops and discussions.  And following that I became the Chief Investigator working with the Federal Court, and particularly Juanita Pope on a case study project in indigenous dispute resolution called Solid Work You Mob Are Doing.  While I think of it, and these will be available in Melbourne as well, the website addresses, these are all online, are on this sheet here if anyone’s interested in that.

So following on from that, I just thought I’d throw in a few photos to create a bit of interest.  That’s me when I was much younger, out of Katherine, working with some Waddaman people.  But I’m showing you these slides to show you the range of processes that may need to be adopted in a particular process.  So having done that and gone round lots of country with people, and done a lot of mapping of interests, including talking to people separately and shuttling between groups, we also had workshops with lawyers were people were contained in a particular venue that was cool, and there’s often a lot of thing around about you must have meetings on country, well, actually, that’s up to people themselves.  A lot of my experience of meeting on country is a lot of dogs, a lot of people, a lot of noise, and not much interaction.  So sometimes it’s easier for people to work in these kinds of environments.

So the other thing I’ve been working on with Right People for Country in Victoria, which is a great program, and been working on some pilots with them and also on connection thresholds in their Traditional Owner Settlement Act, and then the free, prior and informed consent work.

So the Solid Work You Mob Are Doing Federal Court report, the photos I showed you before were a case study from the IFaMP project.  This is the Solid Work case studies, so there’s one on Halls Creek, one on New South Wales Community Justice Centres, and one on the Tiwi Islands.  Sad to say the National Alternative Dispute Resolution Advisory Committee, or Council, in the Department of AGs was one of the first things that was disbanded with the change of government.  But a number of recommendations were made by NADRAC to the Attorney General flowing out of this case study project.  NADRAC had an Indigenous Advisory Committee, with Helen Bishop, Loretta Kelly, Robin Thorne, Charlie Watson, incredibly committed mediators who have been around for a very long time, and I also acknowledge that Helen will have given the key note address at the conference in Melbourne that I’m recording this for.  But they were also advisors on the Solid Work report.

I’m trying to emphasise that there is a highly committed group of people around who are involved all the way through this in developing this stuff.  And at one stage we also had a workshop of some of these people, what was called the Office of Indigenous Policy Coordination in FaCSIA talking around the same things I’m talking about today.

So in Halls Creek, you can read the report online, and I won’t go into all the details of it, but I want to give you a general sense of what the case studies were about.  Each of them had an indigenous co-researcher.  In Halls Creek there were three generations of women who were feuding over a fight that happened on the basketball court.  The police were involved, the legal service, Magistrates Court, the Department of Aboriginal Affairs, the Aboriginal Justice Council, you see these are not just fights between people.  And so that was one of the case studies.

The other one was a standard New South Wales dispute, Community Justice Centre dispute between Aboriginal and non-Aboriginal neighbours.  The third one was on the Tiwi Islands, where they still, they call they’re called the Ponki mediators, have their own local service there.  And this was the very beginnings of that service that came out of the Youth Diversion and Development Unit.  In the course of sending out the notices for this seminar, and I did think I would just prerecord it myself, and then I thought “Oh, no, I need to talk to somebody, so I’ll just get a few staff”, and then I thought “Well, if I’m going to do it I might as well send out the invitation”, so thank you very much for coming.  But in the course of that I received an e-mail from Mornington Island, from the coordinator of a local service there saying, and there have been a lot of e-mails I have to say from committed people saying they’re very interested in this seminar, will it be going online, and the Mornington Island Justice Centre asked me to mention that they are in existence and they are doing very well.

The report, the Solid Work report also has a number of snapshots, and what’s really sad about some of these is that they are no longer in existence, because they don’t any longer have funding.  So the Ali-Curung Law and Justice Committee, and I think that, I’m not sure, I’d need to go back to my notes, but I think that was the Kuduru Project, it may have been called.  And nobody today can say why it didn’t get extra funding, and it seems clear that it was more to do with politics within the bureaucracy than it was to do with anything that was happening in the community.  You see what I mean again by systems and all of us being implicated.  Non-indigenous attempts to mediate an Aboriginal feud in an Aboriginal town.  Community Justice Group, Jealousy Program on the Tiwi Islands and so on, but you can read them anyway.  But I’m just giving you a sense of the range of them.  

Yes, I know this looks like a very full slide.  I’ll try to get through it as quickly as possible.  But what we, some of the things that we have found, and this is a sort of combination of solid work and IFaMP and other work, is that understanding that all disputes are different is important for effective process.  But no one size fits all, and disputes are embedded in systems.  Disputes should do no harm.  Now there is a lot of literature around these days starting to say, talk about the kind of harm that disputes are doing, including in native title.  Loretta Kelly and Larissa Behrendt and Judy Atkinson has written about trauma trails, and Loretta and Larissa have written about the impacts of poor mediation processes in exacerbating conflict.  So they have to be timely, they have to be comprehensively planned and designed and prepared.

Now, by this I mean the interests have to be mapped of all the parties who are involved.  Now, in native title some of those interests may be land interests of course, who was born here, what kind of clan do you belong to and so on.  But there are also social and political and economic interests that are at play in conflicts.  And all of those interests should be identified before you begin to design what process is going to take place.  Ideally co-mediation teams involving males, females, indigenous, non-indigenous if necessary, and including local people who may have reputations as peacemakers where appropriate.  What Charlie Watson would say, “People who can sit in many camps”.

A choice of facilitator is incredibly important.  And matching the facilitator with the dispute.  Now, there are process issues even around that.  It’s not good enough for me to come along to somebody to their face and say “Are you happy with me doing this mediation with you?”.  There’s something called gratuitous concurrence, which means people will just say “Oh yeah, yeah, yeah”, and “Who the hell was she?  What’s going on here?”.  So it’s very important to have somebody else do those kinds of, have those kinds of discussions with people, and also to be incredibly informed about the nature of processes that are available, and the kinds of tools that are available.  And there are many of them.  

So one of the things I’ve been thinking about in terms of designing processes, this is a really good way to start once you’ve mapped those interests, is to actually develop a set of principles of what people think the process should look like, and not just what it should look like, but how does that translate onto the ground.  So if you say a principle is transparency, what does that mean in the community itself?

Tailoring to needs and interests.  I want to say something about culture here, because people, again it goes back to that kind of critique of Utopian.  Culture is not a thing that can be kind of lifted up and put into whatever process you are designing.  Culture is a process of negotiation amongst other things.  So you have to be careful about how you do this.  And I think Patrick Sullivan, who’s here, has talked about in one of his publications the implications of having as a list of rules in the membership of organisations that people in a patrilineal clan are the members, when there may not actually be any people left in the patrilineal clan alive.  But it’s an idealistic view of what culture should be like.

So capacity building, and ensuring that parties are ready to participate is very important.  I’ve seen instances where people have actually been pulled out of the long grass, where they are suffering from alcoholism, and they are being asked to make decisions that have intergenerational implications.  There is something very wrong with that.  

So processes should also have communication strategies around them so that the groups who are involved, the internal groups who are involved understand what’s going on, but also the broader communities understand what’s going on.  And don’t forget, if conflicts are nested in systems and structures, it’s not just the group that you’re dealing with who will be involved.  It will be the broader community, and those people who are in your group, probably married to somebody who’s not in the group and so on.  So it’s very important to be mapping all of those interests to really understand.  And in implementation, clearly identifying the roles and responsibilities and monitoring the implementation and ensuring what has become a kind of a used word, mutual responsibility.

So these are out of the Halls Creek project, and I think that they’re informative in the sense of the kinds of services that are needed, and why, as I’ll get to, we do need this sort of national service of regionally based and local based mediators and facilitators.  In this instance you have Sergeant Steven Banks saying “Having local people dealing themselves with issues, it’s no good bringing in outside people, because if you’ve got local people they know the people, they’ve got their trust, and people can be more free to say what they have to say”.  That’s one part of it.  But that is if they are happy for any kind of third party assistance to be drawn from the local community.  It may be that they’re not.

So you get Ray Collins, who was a member of the justice group there, which doesn’t exist anymore.  You might find, and he was a mediator in the Halls Creek case study, you might find that local people in town don’t want those local people doing it.  But it could be that somebody from a neighbouring town, who is quite acceptable to them, to come over and do it, because you know you do get a relationship going with people in your town, and some may see that you’ve got a closer relationship with that family than with them, so that it won’t be fair if we sit down.  If you’ve got those other people to call upon, that would be a big plus.  You can’t wait a fortnight or a month, because in that time so much more is going to happen.  So you really need them straight away.  So you can see the need for the diversity here, and how important it is to have a choice of mediator, and for parties to actually be happy with what’s happening.

So the common process that’s out there is the interest-based out of Harvard, getting to yes, win/win, all this stuff.  Now, there’s absolutely nothing wrong with an interest-based process if it’s based on the satisfaction triangle that we talked about before, looking at the emotional proceduralness, substantive interest and designing processes around them.  But that’s not often what happens.  And we did a survey, Rhiann Williams who was working with me, of native title mediators, and it was really quite shocking to see the diversity of processes that people were using under the Rubric of intraspaced, they didn’t have a rationale for what they were doing.  One response said “I just bashed two heads together”.  So the problem here is a lack of procedural consistency, and later you’ll see also a lack of procedural literacy, because some of you I can see in this room are already process tragics.  But there are many people out there who don’t understand engagement processes and consultation processes and what they actually really require.

So some of the alternative examples that are around are deep democracy for example, which is based on quantum physics, has a way of going into the conflict, has some ways of asking critical questions around building consensus, for example “Sorry you lost the vote.  What would it take for you to come along?”, or “What do you need to be able to live with this decision?”, based on getting the wisdom in the room, but also finding the ‘no’ in the room.  Other people have talked about, including myself, the idea of almost kind of getting the dissensus and a cacophony of voices before you move towards getting dissensus, allowing people to participate and voice all of those opinions.

Look, there’s a whole range of them, Scott Gorringe has got his own process that he’s developed called Unguri, which has a very interesting theory about culture in it and how to change cultural practices.  I won’t run through them.  Appreciative inquiry, adaptive leadership, transformative mediation and so on.  There are many of these processes.  Well, not many, but they are around, which means that there are all kinds of ways that we can be approaching communities, and that for me, what I’ve done is try to do training in as many of these as possible so I have a range of tools and a range of approaches, so that in the design I can figure out “Oh, now, a deep democracy argument would be a really good thing to have with these people”.  Or the tools that I learn in the visualisation in participatory democracy in a course in the Philippines, they would be fantastic to get people to talk to each other, without having to really kind of sit around in a circle, in a kind of a sometimes contrived situation.

So what happened with the Solid Working Mob report is that the then Attorney General, who was Robert McClelland, launched the report in the Federal Court in Sydney, and the National Alternative Dispute Resolution Advisory Committee, or Council, I’m sorry, made a number of recommendations.  Some of these are the case study people.  David Allen up in the right hand far corner, Rhiann Williams in the middle, Helen Bishop over there on the left.  If I keep going I won’t have everybody’s names and then I’ll get into trouble.  Robin Thorne up the back.  

So the recommendations were for a National Indigenous Dispute Resolution and Community Facilitation Service.  This is not envisaged as a top down kind of a thing.  It’s envisaged as providing the necessary support, including not duplicating a whole lot of resources, for a regional and local service infrastructure, so that you have local and regional networks of particularly indigenous mediators and facilitators who are nationally accredited.  

The fact that mediation might have a bad reputation in some quarters does not preclude this stuff, and should not make you think that this is not worth pursuing.  Because what I’m talking about is something quite different, and I hope you can see that.  This kind of service would need to be staffed by people who are culturally competent and well trained in community engagement, coordination and so on.  

The aims of this service are to establish, develop, support and promote indigenous dispute management and practitioners, there’s an error, in the understanding that solutions need to be negotiated not imposed.  Local services facilitating engagement.  Processes for matching expertise with community needs.  So it may be even in say Halls Creek that the guy from the region next door is not really acceptable either, and people might want to go to somebody in Broome, or somebody in Queensland.  This is all about who is the appropriate person.  It builds on existing programs and skills, so we’re looking at the Community Justice Centres and saying they can provide a good spring off point.  But some of the Community Justice Mediators that we talked with said that they were very nervous about working particularly in native title.  

Develop and deliver innovative education and awareness raising and training packages for communities, policy makers and service deliverers.  Facilitate coordination and greater accountability between and amongst agencies, which is one of the things that we find that local services can do.  Including targeting referral pathways in a range of areas.  So people may well need to be directed towards some kind of counselling, not saying that mediators should be doing all of this.  But it’s identifying the needs and the interests, and then coordinating some assistance for people that is really important.

A clearing house for all the kinds of things.  So we’re talking about some of these tools and debriefings and evaluation processes and monitoring processes being developed at a national level, but then being cleared and people being assisted at local and regional levels to employ them.  Appropriate recognition, support and remuneration for indigenous practitioners.  Many of those people working in local services are working voluntarily, which is actually a disgrace, because they’re on call sometimes 24 hours a day.  But the good thing about them is like in the Tiwi case, they’re up there, in the morning, after the night patrol has been around and identified all the fights, they’re there first thing, the night patrol brings people to them, and they can nip things in the bud.  

Build a national profile for the use of indigenous dispute resolution and so on by establishing a national award or peace prize, recognising achievement in indigenous dispute management.  Promoting the publishing of success stories in the media.  Implementing a scheme for recognition of outstanding work by government officials in dispute management promotion and advocacy.  

Developing, piloting and coordinating delivery of a national training curriculum.  This is incredibly important.  We’ve done a lot of work on this.  It’s not like a one off training thing.  There are many, many modules that we have developed that people need to actually do to be effectively trained in this area.  But such a curriculum would need core and elective modules, so native title, health, family relationships, needs to have a module dealing with grief and substance abuse, how to build relationships, ways of approaching capacity strengthening, and such training should have extensive practice involving role plays relevant to the indigenous context.  One of the feedback from training from the mainstream services is that they don’t find the training relevant to their work.  The other side of that argument is it’s best to have training not relevant to your work, and then you’re focused on the skills and not on the content of the thing.  But my view is that you do really need to know the context in where you are working.  Exchanges, monitoring and evaluation.

Developing common standards, accreditation and recognition of prior learning which complement the National Mediator Accreditation Scheme, which has still to my knowledge found the indigenous accreditation stuff too difficult, and it’s still sitting there.  Become a recognised mediator accreditation body.  Coordinate researchers, requested or agreed.

So the idea that NADRAC recommended was a stage development of this process, involving state, territory and Commonwealth collaboration, initiated by the Commonwealth, and that’s an interesting question, because the people who this was directed to in the first place are now all in PM & C as I found out in the phone call when I sent an e-mail over to the Family Relationships people at AGs, and they’re like “Well, we don’t do indigenous anymore, you’ve got to go to PM & C”.  So that may or may not be correct.

National workshops, roundtables of policy makers, advisors, service deliverers, indigenous mediators, staff in AGs, PM & C, all the sectors.  Then state and territory regional workshops or roundtables involving service deliverers, including those who are federally funded, policy makers, representatives of indigenous affairs and justice departments, community mediation centres, police, mainstream service providers, family relationship centres, Magistrates Courts, community justice and so on.  What we’re looking at here is a whole of system approach, and having the whole system in the room to be able to get anywhere with a decent outcome.

Pilot projects in service delivery and training, and I know ‘pilots’ can be a dirty word, but I should have added there “and implementing them”, I think I have on another slide.  And the review of, oh, I do, look, review evaluations of the pilots and facilitate implementation of their findings.

So some of the agendas for these roundtables were identified as practitioner competency, recognition of prior learning, promoting and fostering, how to promote and foster interagency cooperation and coordination around these services.  This is not talking about the whole thing.  How to engage with communities as to whether they wish to develop local services, and how that might be achieved.  How to establish and support regionally based community engagement facilitators, how to direct institutional responsibility and funding for indigenous conflict management to local and regional indigenous organisations, how to ensure that dispute management services are accessible, and how to foster relationships between senior government staff and indigenous communities to champion indigenous dispute management services.

And also that such a service be resourced to develop and deliver education packages targeting referral pathways, and promoting and encouraging the use of different kinds of processes as a means of asserting indigenous strength and resolving conflict.  Encouraging the employment, most of this I’ve already mentioned.  Coordinating the employment of indigenous education and community development workers within mainstream services, for example by secondment and internships.  And here you see I have a number of question marks, because the other recommendation was for the Attorney General’s Department in consultation with FaCSIA, and I’ve got now PM & C, to develop procedures to identify the communities or regions where pilot projects in training and service delivery might be wanted, and to then coordinate and implement them.  A bit of repetition there, I apologise for that.

So one of the key findings of the Solid Work You Mob Are Doing report was the need for champions, indigenous or non-indigenous, in positions of influence or power, championing changed engagement consultation, decision making and dispute management processes with and for indigenous people.  Because in the case studies we found that where that was occurring even at a local level, so say for example you had Sergeant Banks there before, the work was happening, and it was happening very well.

So we have a range of unfinished business, the national service, who has responsibility, or as Helen Bishop will have already now referred to it, because I’ve seen her paper, earlier in the conference in Melbourne, as a peace institute.  The second point I think is incredibly important.  Procedural experts on the staff of indigenous organisations, including native title representative bodies and government agencies.  These are the people who should be monitoring processes, these are the people who should be assisting in the design of processes, these are the people who should be developing good graphic material so that people can understand what they’re hearing.  One person will obviously in many places not be enough.  But this is core business for all of these people, but this is why I’ve called it the missing piece of infrastructure, because often these skills are not within organisations.  They may have engagement officers, but they often do not have the kinds of skills I’m talking about.

Right People for Country in Victoria has developed an embryonic kind of network of practitioners, and I’m suggesting that that’s something that can be built on.  I’m also asking the people in Melbourne, I would love to see, and I congratulate the organisers, NTSV, on holding this indigenous ADR conference, I would love to see this conference become an annual one, and I lead the people at the conference, you people now I’m speaking to the ether, is it possible for this conference to become an annual one?  And how can the NADRAC and AIATSIS recommendations that have been so comprehensively based on research evidence be realised?

So that’s it.  Thank you very much.  I think it was a bit longer than half an hour, but anyway.  The conference mightn’t like it.  So any questions?


People in some communities, white or black, have to remember that people in those communities got skin names.

Toni Baumann

That’s why the Tiwi people have their process based around having all the skins represented as mediators and so that they can work out their programs and have the right people dealing with the right issues, yeah.


It’s quite a challenge that you’ve given us here.  Are there any training opportunities for the upskilling of people from different parts of the country?

Toni Baumann

There are a number of training opportunities, but most of them are not specifically aimed at the indigenous context.  I have done a range of training in negotiation, in facilitation, in mediation, in deep democracy and so on, and in participating in that training I’m often asked “Well, how would this work in the indigenous context?”, and I say “Well, I’m here to find that out”, but anyway.  So this is why I’m advocating very seriously for the need for a training curriculum, and an accredited one I might add.


Toni, thanks very much, that was a wonderful presentation and certainly a skill there that we could use across the board.  It made me think some of the areas I work in, in archaeology and anthropology, there’s a range of areas, and you’ve covered them, from the native title areas.  But also I see in some of the challenges I’m facing in academia, there’s another whole area of the whole indigenous research agenda within universities, and not specifically just in conflicts within community.  It’s actual, the ethics of pursuing indigenous research is a big angle, and in relation to conflicts with communities or internally in those institutions.  I mean, do you see that as an area that this could be, again, it comes to issues of cultural competency, but there’s a whole area that could ...

Toni Baumann

Absolutely, and some of you may have seen last year we had a national forum, a National Indigenous Governance Forum, and part of its aim was to map research gaps and needs.  And when we asked people about what topics they thought should be researched, they responded with how research should be done, and raised a number of ethical issues around research engagements, all of which are set out in the report, and most recently myself in carrying out some research on free, prior and informed consent, with some of the processes that I quickly raced over, I had exactly this issue myself.  And I had to pull myself up, because I realised I was going to do exactly what I recommended not to do, which was stand in front of the group of people, because I was kind of helping facilitate and observing as a part of the research, and say “You know, can you please fill out this free, prior and informed consent form?”, and then I suddenly realised “Hang on a minute, this is absolutely wrong”.  And I took myself out of the room and allowed the facilitator, but luckily there was one there, to have the discussion with people and to get the form signed.  But there were a range of really tricky issues around the engagement in that project, yeah.


I’m a [0:47:15.5].  But previously work I did was in the Northern Territory with the intervention on the ground, the importance of the negotiation, consultation, how it’s going to work with the people on the ground, what was being implemented, the policy hitting the ground and running, certainly with the view of people understanding.  But for me currently it’s really about the family dispute resolution, and the work I’m doing across the board, whether the models are suitable.  For me it’s really important to understand the environment you’re working in, and I think there’s a huge lack of that.  I find here in the ACT it is so political, which causes lots of tensions and issues, and it’s about how we reach all Aboriginal people, not a selected few.  And then the process, what style we’re going to use, and doing a mediation where for Legal Aid for example, it’s lawyer assisted and shuttled, and I guess as a practitioner or a convenor of the panel working with the clients and then finding out it’s better for them to talk face to face, rather than the shuttle in between.  And then the other importance is it’s not just about those two people, a whole lot of other people.  So I found this particularly interesting, and I guess I’d like to catch up with you more in regards to that.

Toni Baumann

I’d love to do that, and you’ve reminded me that one of the things that we found in the IFaMP project was that lawyers acting adversarially in these processes was pretty much the major reason for not getting beneficial outcomes.  And I’ve heard people from law societies talk about the need for training of lawyers in how to be helpful in these kinds of processes.  And from what I’ve seen, especially in native title, that’s incredibly important.  I mean, some of the mediations that take place in native title are between lawyers.  The people aren’t involved in them at all.


The other fascinating area was the neighbourhood disputes, which I have assisted in a couple here, and I guess that’s really challenging in itself, [0:49:21.7] on how that works, and I quite like the idea it’s not about reinventing the wheel, but I think what’s really relevant is how does it apply here with the people that are working [0:49:32.2].  And that in regards to whether you have a local Aboriginal person, I guess in the Northern Territory they chose not to, because of the pay back and a whole lot of other reasons, it was horrendous for a local person who [0:49:46.6].

Toni Baumann

Yep, I mean, there are certain situations that I, and this is something too that good process means, is that you absent yourself from a process if you know you’re not appropriately located to do it.  But lots of mediators don’t.  I always find myself going “Mamamama”.  I used to be a teacher, and at the end of workshops people say “Thank you teach”, you know, it’s a bit embarrassing.  But, now I’ve lost my train of thought.  Oh yes, so a lot of process people, they’re just taking jobs, and they don’t understand, or they don’t actually absent themselves and say “Well, actually, no, I don’t think that’s the right job for me”.  And I think it’s really important that that’s a skill that people gain, yeah.


Toni, thanks for the seminar.  I get from that and other conversation experiences enormous human cost to not resolving these things.  But I was just wondering whether there was any research around what the financial and resource costs are of not addressing it, versus what it might cost to put in a system and meet some of the recommendations that you’ve suggested.

Toni Baumann

Is that what you call a Dorothy Dixer?


It can be, but we didn’t prearrange it, so I guess it doesn’t qualify.

Toni Baumann

Well, it’s very good, because for those of you who were here last week, the seminar was the cost benefit analysis of the Yuendumu Mediation Service from two economists at the University of Canberra.  And it was extremely interesting, I think.  And there’s been a cost benefit analysis also of the right people for country pilots, and both of them show remarkable costs savings.


But if you were to put this proposal to PM & C and others, I mean I guess the first response is going to be “What does it cost Toni?”.  Is it possible to cost the sorts of recommendations you’ve suggested?  How do we go about it?

Toni Baumann

Oh, you mean the proposal itself?


Yeah, yeah.

Toni Baumann

Well, I think it’s a staged process.  I don’t think we have to actually decide now it’s $1 million or something like that.  And in true good process form, its form should emerge from the process itself.  So the kind of roundtables we’re talking about, talking to communities about whether they need local services or how they might be developed.  But the critical thing is to be able to ensure that they get ongoing resources, so that something like the Ali-Curung project is not stopped because of the whims, apparently, of someone working in the bureaucracy.  

I think in the past people have seen this as kind of too big, but it doesn’t have to be, which is why in the Solid Work project we actually tried to break it down into what we thought might get some better results.  In the first instance we always talked about, and you’ll notice I’m talking in the past now, which is very sad to me, because this is something a lot of us committed a fair bit of our lives to.  We always talked about even just starting off with a really core kind of a unit of people, three people or something, to get this stuff rolling.  And then of course you can’t rely just on the Commonwealth government for this, the state government has to be involved as well, and the state government is actually funding the Community Justice Centres.  But it’s a not a let off the hook for either.  Yeah.


Yeah, you mentioned the Victorian native title mob, is it?

Toni Baumann

Yeah, Right People for Country Program.


Right People for Country.

Toni Baumann

In the government it is, yeah.


Is there a similar network here in Canberra, or ...?

Toni Baumann

No, but that’s the point I’m making.  We really need to start building these networks.  And that’s something that can be done relatively easily, but it does take a staff person to do it.  We did it through the Indigenous Facilitation and Mediation Project, but it’s no longer valid.  The people’s contacts are out of date and so on.  But we did a lot of work around that at the time.  But what I do know is when I get calls from people asking for assistance about this, it’s very difficult to think about the right people for the right issue.  But it would be a lot easier if we had all of these people in a kind of a list with some description of their approaches and what they do.  Sometimes I can help, because I’ve got a reasonable network of these people, but I don’t know everybody.  And I’d really like to see that come together.


Sorry, maybe I misunderstood.  When you mentioned networking in that context, I kind of took it as to be like a network of professionals learning from each other, kind of like the International Coach Federation or something like that.

Toni Baumann

Yeah, it’s a bad term, it’s a bad term.  And I used to talk about panels too, and people didn’t get that either.  It’s a service.  So it’s local services.  Some people might be based regionally.  There may be a regional office.  There may be, should be and I don’t know whether they exist anymore, some do I think, justice groups.  Does that answer ...?


Yeah, I’m actually kind of looking a professional network, or a practitioner network is probably a better way of saying it, to be part of and to learn from.

Toni Baumann

Okay, well, can I suggest, and I’ll have to ask the others.  We have a very embryonic native title community of facilitation practice.  I don’t know if you’re going to the Native Title Conference, but we are having, are you?



Toni Baumann

Well, if you come to the session on managing conflict and difference, there’s about five or six of us who are going to be facilitating in various ways in that workshop.  But we’ve only managed to have a few phone calls, but even that is really good, and we find that the minute we answer the phone somebody’s off on PLO from one of the bodies.  They’re really quite, the people who get this, get it.  The people who don’t, it’s very difficult.  But all of us on the phone calls get it, and immediately we’re launching into these really quite difficult conversations about should we have divergence and then convergence?  Should there be dissensus?  Should we go into the conflict?  They’re interesting in that sense, and very supportive.  So if you meet those people, and we will be talking a little bit about that community of practice in that workshop.  And it is in native title, but I think it’s commendable of Native Title Services Victoria that they understand that their ADR conference is not just about native title, because they get the picture that the conflict thing is bigger than just native title, it involves a whole range of other things as well, including family disputes and so on, yeah.  Any more questions?  Finished?  Thank you very much for coming, everybody.