Building bridges: using existing law to support the cultural self-determination of Aboriginal and Torres Strait Islander businesses and communities

ABSTRACT

Aboriginal and Torres Strait Islander peoples have a long and rich history of enterprise that dates to long before European contact. Today, through resilience and ingenuity, Indigenous businesses are one of the fastest growing sectors of the Australian economy and one of the most rapidly expanding providers of employment. Indigenous individuals are achieving these results in spite of the ways that the laws imposed through colonisation placed, and continued to place, First Nations peoples at a profound disadvantage in maintaining economic self-determination. Although law reform in this area is essential, progress is slow and there is often a perception that little can be done by individuals – especially non-Indigenous legal practitioners and businesspeople – until the reform takes place. There are, however, more immediately available options. Using examples, this article advocates for more systematic research into the capacity of existing laws and commercial legal tools to better strengthen First Nations entrepreneurship in Australia while simultaneously supporting Indigenous businesspeople to achieve success not only economically but also in ways that are culturally relevant to themselves and their communities. Importantly, these structures, processes and mechanisms comprise tools to be deployed by non-Indigenous as well as First Nations legal practitioners and businesspeople.

KEYWORDS:

• Aboriginal and Torres Strait Islander business
• law
• cultural self-determination

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Aboriginal and Torres Strait Islander peoples constitute approximately 250 distinct and self-governing nations. We recognise that word choice is political, that different terms carry contested connotations and that no single word adequately captures the history and ongoing vitality of the collective Indigenous peoples of the Australian continent and surrounding islands. In this article we have chosen the word ‘Indigenous’ and the phrase ‘Aboriginal and Torres Strait Islander’ to refer to these nations and their people.

2 Gaymarani (2011), p 283:

The Ngarra (Gamurr-guyurra) customary law was used for hundreds of years before the white settlers came ashore in the great land of Australia. … The law played an important role in driving the economy, community wellbeing, welfare, respect, cultural obedience, marriage, ritual, ceremony, moiety system, environmental law, the law of the land and sea, treason, punishment, leadership, management, initiation, sentencing and other cultural obligations.

3 Altman and Biddle (2015); Brigg (2011).

4 Department of the Prime Minister and Cabinet / National Indigenous Australians Agency (2018), 4. See also Evans et al. (2021); Aboriginal Affairs NSW (2017); Hunter (2015).

5 See, eg, Watson (2014), p 509; Moreton-Robinson (2007).

6 See, eg, Atkinson (2007), p 27.

7 See, eg, Kalt and Singer (2004); Companion (2004), p 87.

8 McCreery (2012), p 16; Hewitt (2011); Behrendt (2003). See also Shirodkar et al. (2018); Thomassin et al. (2020).

9 We recognise that ‘entrepreneur’ and ‘entrepreneurship’ are words that carry can carry specific meaning in some areas of the academic literature. Here, we refer to entrepreneurship more broadly as synonymous with general business practice.

10 As Foley and Hunter explain, ‘[t]he word “business” in an Australian Aboriginal context is often used to refer to customary forms of ceremony, ritual or kinship issues among family members’: Foley and Hunter (2013), p 66. Wherever necessary to avoid confusion, we use the terms ‘commercial’ and ‘commercial law’ to avoid confusion with customary practices and law. While the term ‘commercial law’ can have different meanings in different contexts, it is used here in its broadest sense to encompasses laws, policies and practices relating to the world of business and commercial activity, including business formation, contracts, sales of goods and services, intellectual property, tax and dispute resolution.

11 We do not shy away from the fact that the flexibility of the law, and certainly of commercial law, simultaneously make possible avenues of exploitation that can be used to harm First Nations businesses and communities.

12 Goode (1988), p 148.

13 In referring to the potential engagements of non-Indigenous legal practitioners and businesspeople we are careful not to be either naively idealistic or indifferently practical. Instead, we recognise that these relationships and their motivations are complex. Indeed, our combined decades of legal and business experience tell us that the reasons why non-Indigenous legal practitioners and businesspeople may take an interest in First Nations businesses can range from social conscience to economic greed.

14 Miromaa Aboriginal Language and Technology Centre, ‘Aboriginal-Related Terminology’, https://www.miromaa.org.au/aboriginal-terminology:

Colonisation: A process by which a different system of government is established by one nation over another group of peoples. It involves the colonial power asserting and enforcing its sovereignty, or right to govern according to its own laws, rather than by the laws of the colonised.

15 See, eg, Hansen and Butler (2013), p 1.

16 Anaya (1996), p 82.

17 Behrendt (2001), p 861.

18 International Covenant on Civil and Political Rights, opened for signature 16 December, 1966, 999 UNTS 171 (entered into force 23 March 1976).

19 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

20 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (13 September 2007).

21 NSW Ombudsman (2016), p 3.

22 Behrendt and Vivian (2010), p 22.

23 Hindle and Moroz (2010), p 372. See also Frederick and Foley (2006), p 41: ‘ … the major motivator for being entrepreneurial was to provide for the entrepreneur's children and to give them a better life … a pursuit by the Australian Indigenous entrepreneurs to achieve social control. This is an act of self-determination … ’ See also Lee-Ross and Mitchell (2007).

24 Rola-Rubzen (2011), p 36:

The five most common reasons indicated by non-Indigenous entrepreneurs are to improve income, to become one's own boss, to improve lifestyle, to become wealthy and to create employment for oneself or one's family members. On the other hand, to contribute to one's community by providing a needed service was the top reason chosen by Indigenous entrepreneurs. Creating employment for oneself or one's family members came equally second with contributing to one's community by increasing employment opportunities.

See also Frederick and Foley (2006), p 41. This work indicates that an Indigenous Australian entrepreneur is generally motivated more by a need to correct negative social perceptions and racial discrimination than by a need for wealth creation; see also Foley (2004).

25 Collins et al. (2017), p 38.

26 The question of criteria for a business to be considered ‘Indigenous’ is also complex – see further Foley (2013).

27 A small enterprise, according to the Australian Bureau of Statistics, is one that employs up to 19 people. A medium enterprise employs more than 20 but fewer than 199 people. See Australian Bureau of Statistics, ‘Australian Industry’, https://www.abs.gov.au/statistics/industry/industry-overview/australian-industry/latest-release, 28 May 2021. For tax purposes, a small business is one with annual turnover of less than $10 million. See Australian Taxation Office, ‘Work out if you’re a small business for the income year’, https://www.ato.gov.au/business/small-business-entity-concessions/eligibility/work-out-if-you-re-a-small-business-for-the-income-year/.

28 Shirodkar et al. (2018), p 1: ‘Indigenous businesses are crucial for the economic self-determination of First Nations communities’; Morley (2014), p 2:

Indigenous economic development is defined as the involvement by Indigenous people in employment, business, asset and wealth creation in the communities and regions where they live. One key aspect of improving Indigenous economic development is through Indigenous people operating their own private businesses or community-based enterprises. (citations omitted)

29 Audretsch et al. (2007).

30 Collins et al. (2017), p 37.

31 Australian Productivity Commission (2020), Chapter 9 Attachment Table 9A.2.12.

32 Supply Nation and First Australians Capital (2018), p 2.

33 Office of the Registrar of Indigenous Corporations (2017). This is the most recent report available.

34 Office of the Registrar of Indigenous Corporations (2017). See also PwC Indigenous Consulting and PricewaterhouseCoopers Consulting Australia (2018), p iii.

35 Office of the Registrar of Indigenous Corporations (2010), p 19.

36 See, eg, Australian Bureau of Statistics, ‘Counts of Australian Businesses, Including Entries and Exits, June 2014 to June 2018’, https://www.abs.gov.au/AUSSTATS/[email protected]/DetailsPage/8165.0June%202014%20to%20June%202018?OpenDocument, 21 February 2019.

37 A list of many Australian Government business grant and programs is available at: https://www.business.gov.au/grants-and-programs.

38 Morrison et al. (2014); Morley (2014); Office of the Registrar of Indigenous Corporations (2010).

39 See further Allison and Cuneen (2022).

40 Gray (1999); Grose (1995).

41 Ciftci and Howard-Wagner (2012); Terri Janke and Company (2018).

42 Sklansky (1995).

43 Biolsi (2001); Engle Merry (2003).

44 Watson (1997), p 39. In the international context, see Anghie (2004); Kelly and Kaplan (2001).

45 Hunter (2014), p 73.

46 See Jacobs (2017), p 3:

Historically, Indigenous Australians’ participation in the mainstream economy has been restricted … involvement was often limited to the provision of labour in the pastoral industry. From the late nineteenth century until the early 1970s, Aboriginal and Torres Strait Islander people's wages were managed by Australian governments … .

See also Kidd (2006), p 10: ‘Most Australians had no idea the governments of various states and territories had controlled the earnings and entitlements of Aboriginal workers for much of the twentieth century.’.

47 Verdon and McLeod (2015), p 155.

48 See Jacobs (2017).

49 NSW Ombudsman (2016).

50 NSW Ombudsman (2016). The NSW Ombudsman’s 2016 Report relatedly notes that: ‘Financial exclusion — characterised by lack of access to appropriate and affordable financial services and products — and financial stress are more pronounced for Aboriginal people than other Australians’; further, ‘[n]ationally, 43% of the Aboriginal adult population was considered severely or totally financially excluded in 2012, compared with 18% of the Australian adult population’: p 16.

51 Jacobs (2017); see also Collins and Norman (2018).

52 NSW Ombudsman (2016), p 3.

53 Australian Productivity Commission (2020), para 7.23.

54 In regard to racism against Aboriginal and Torres Strait Islander people in business, see Morley (2014), p 6: ‘Developing partnerships and having access to business networks are repeatedly highlighted in the research as critical to success’. In regard to relationship-building in business, see Macaulay (1963); Macneil (1985).

55 Supply Nation and First Australians Capital (2018), p 7.

56 Marchetti (2012), p 10 (referring to Aboriginal and Torres Strait Islander people's ‘distrust of the justice system as a result of the history of colonisation’).

57 See NSW Ombudsman (2016).

58 NSW Ombudsman (2016), p 2.

59 NSW Ombudsman (2016), p 2.

60 Morley (2014); Jacobs (2017).

61 Allison (2013).

62 See generally Kune (2011). See also Ransley and Marchetti (2001); Marchetti and Ransley (2005).

63 Frederick and Foley (2006); Terri Janke and Company (2018).

64 See, eg, Rola-Rubzen (2011); Evans and Williamson (2017); Morrison et al. (2014). Note that in regard to Indigenous businesses, research has suggested that ‘there usually is some aspect of cultural legitimacy and Indigenous identity and the desire to positively reflect Indigenous values in the surrounding mainstream community’: Office of the Registrar of Indigenous Corporations (2010), p 6.

65 Hofstede Insights, ‘What About Australia?’, https://www.hofstede-insights.com/country/australia/.

66 Cairney et al. (2017), pp 69–70.

67 See also Office of the Registrar of Indigenous Corporations (2010), p 7: ‘Aboriginal and Torres Strait Islander values may include obligations based on kinship relationships, a different orientation towards time, an importance of consensus decision making and putting family needs before business goals’. See also Keen (ed) (2010); Peterson (2005), p 7.

68 Cattelan identifies ‘a dogma of cultural neutrality for contract and business laws’: Cattelan (2013), p 3.

69 Ainsworth (1996–1997), p 31.

70 du Plessis (2019).

71 Apps (2019), p 552.

72 Wensing (2016).

73 Wensing (2016). See also Sobel-Read (2018).

74 See Supply Nation, ‘Black Cladding’, https://supplynation.org.au/about-us/black-cladding/.

75 Janke and Quiggin (2006), p 456.

76 Janke and Dawson (2012), p 32.

77 Janke and Quiggin (2006), p 453.

78 Stoianoff and Roy (2016); Stoianoff and Roy (2016).

79 Stoianoff and Roy (2016), p 36.

80 Of course, not every solution needs to be registered in the contract. In some cases, it may be enough for the parties to learn each other's needs and requirements through simple negotiation and mutual understanding.

81 Laing and Behrendt (2007).

82 Modified culturally appropriate methods of dispute resolution and Indigenous models of dispute resolution that operate within the form Australian legal systems include:

Elder arbitration, Aboriginal mediation, agreement-making and other various forms in criminal and civil matters, such as Circle Courts in Nowra and Dubbo and the Aboriginal Sentencing Court in Kalgoorlie, Koorie Courts in Victoria, Nunga Courts in South Australia, and Aboriginal mediators co-mediating matters before Community Justice Centres in New South Wales. Ciftci and Howard-Wagner (2012), p 84.

83 Laing and Behrendt (2007).

84 Behrendt (2002), p 178.

85 Hatfield (2020).

86 Silva and Sarra (2020).

87 ABC News Online, ‘Trading Blak Collective Formed to End Exploitation within Businesses Selling Aboriginal Products’, https://www.abc.net.au/news/2020-06-30/new-collective-to-end-explotation-in-aborignal-products-industry/12403114, 30 June 2020.

88 Tradingblak, https://www.instagram.com/tradingblak.

89 Jarrett (2019), p 182.

90 Indigenous Art Code (2009), paras 2.1 and 2.2.

91 Indigenous Art Code (2009), paras 2.1 and 2.3.

92 Janke and Quiggin (2006), p 456.

93 Lai (2014), pp 158–159.

94 Jacobs (2017), p 10.

95 It has been reported that ‘Indigenous corporations need support and capacity development in managing the corporation's affairs and not only in the governing of corporations’: Office of the Registrar of Indigenous Corporations (2010), p 6.

96 As has already been noted in the research, ‘Indigenous Australians are discovering ways to form businesses that are both commercially viable and culturally affirming’: Morley (2014), p 5.

97 See Newcastle Law School, ‘The University of Newcastle Legal Centre’, https://www.newcastle.edu.au/school/newcastle-law-school/legal-centre.

98 The NSW Ombudsman’s 2016 Report noted the importance of ‘ensuring Aboriginal people and communities have access to quality legal and business advice, as well as guidance on setting up sound governance structures’: NSW Ombudsman (2016).

99 Hudson (2016); Shirodkar et al. (2018).

100 The positive intersections of commerce and human rights have generally not been a topic of much focus, especially in academic literature. See generally Toohey (2017), p 198.

101 See Collins et al. (2017).

102 Morley (2014), p 5 (citations omitted).

103 Some research has been undertaken regarding the importance of appropriate and productive cultural practice within Indigenous businesses and enterprises. See, eg, Morley (2014), p 10–11. Here, we are focused on the related but separate issue of bridging those cultural practices with mainstream Australian businesses and economic frameworks.

Additional information

Notes on contributors

Kevin Sobel-Read

Kevin Sobel-Read is an Associate Professor and the Deputy Head (Teaching) at the Newcastle School of Law and Justice. He is a legal scholar and cultural anthropologist whose research involves Indigenous sovereignty and cross-border / cross-cultural business.

Lisa Toohey

Lisa Toohey is a Professor of Law at the Newcastle School of Law and Justice and an Adjunct Professor at the Faculty of Law at the University of New South Wales. She teaches and researches in the fields of public international law, particularly international trade law, and the peaceful settlement of international disputes.

Taylah Gray

Taylah Gray is a law graduate and PhD candidate at the Newcastle School of Law and Justice. The title of her thesis is Not For The Indigenous: A Critique of Australian Native Title Law. She is a proud Wiradjuri and Ngunnawal woman.

Daniel Toohey

Daniel Toohey was at the time of authorship a Legal Practitioner and Clinical Advisor at the Newcastle Law School. Among other courses, he has taught Law for Startups.

Hannah Stenstrom

Hannah Stenstrom was at the time of authorship a Juris Doctor student and Research Assistant at the Newcastle Law School. She is currently a solicitor at the Office of the Director of Public Prosecutions NSW.