Regulators Build Bridges: But Are We Crossing Both Ways?

By Jeswynn Yogaratnam, Northern Territory Anti-Discrimination Commissioner 

When navigating the complex regulatory landscape, it’s crucial for regulators¹ to reflect on their role and approach. Often, we build bridges to span the gaps in understanding and capability, but how often do we cross those bridges in both directions? This consideration is particularly pertinent when supporting First Nations in developing strong, equitable, and sustainable communities. It requires a holistic approach that integrates regulatory engineering, architectural design, and anthropological insights, creating a framework that truly supports the unique needs of these communities.

Walking Across the Bridge

The metaphor of crossing the bridge in both directions is a powerful reminder of the need for mutual engagement and understanding. Regulators must not only extend their reach into Indigenous communities but also immerse themselves in these communities’ cultural and social contexts. This two-way interaction is essential for developing regulations and policies that are truly informed by the needs and perspectives of First Nations.

The Hon Kelvin Davis address at the ANZSOG First Nations Conference in 2023 underscored this point. His reference to Article 3 of the Waitangi Treaty highlighted the importance of equity—not just in terms of access but also in process and outcome. Regulators must ensure that their actions lead to equitable outcomes, respecting the worldviews of Indigenous peoples and integrating their perspectives into public service.

Devolving Power and taking a Holistic Approach

The devolution of power is central to empowering First Nations communities. Indigenous governance structures often reflect cultural practices and historical contexts that differ significantly from mainstream models. Regulators need to support this autonomy while ensuring there are systems in place for accountability and transparency.

Devolution involves transferring decision-making power to local communities, allowing them to manage their resources and affairs according to their values and priorities. For this to work effectively, regulators must build strong bridges. Effective regulation in this context requires more than just a regulatory framework. It necessitates a holistic approach that integrates regulatory engineering, architectural considerations, and anthropological insights:

• Regulatory Engineering: Crafting policies that are adaptable to the unique needs of First Nations communities. This includes recognising systemic barriers and addressing specific challenges while ensuring that regulations are flexible enough to evolve with the communities they serve.
• Architectural Considerations: Designing processes and structures that facilitate meaningful engagement and collaboration with principles of Indigeneity in mind. This involves creating systems that are not only accessible but also designed to foster genuine dialogue and partnership with Indigenous communities.
• Anthropological Insights: Understanding the cultural and social dynamics that influence Indigenous communities. Effective regulation must respect and integrate traditional knowledge and practices, ensuring that policies are not just imposed but are relevant and respectful of Indigenous ways of life.

How do we Work Together?

The challenge among regulators lies in ‘walking’ the bridge together in a manner that respects Indigenous governance while ensuring accountability. Here are six key principles for a balanced regulatory approach:

1. Adopt Indigenous-Led Models: For those Indigenous corporations not registered with the government agency responsible for regulating Indigenous corporations, adopting models that reflect Indigenous governance can be valuable². Even if not formally recognised, these models should blend Indigenous knowledge and cultural practices into their structures. This approach ensures that Indigenous perspectives and values are at the core of governance practices.

2. Proportionate Regulation: Focus on medium to large corporations where higher levels of public accountability are expected. Allow for self-remediation where possible and appropriate. This recognises the capacity of Indigenous corporations to manage their affairs while ensuring that transparency and accountability are maintained.

3. Compliance and Enforcement: Apply regulatory power when there is a clear erosion of accountability or when a corporation fails to serve the interests of its members. This ensures that regulatory oversight remains effective without undermining the autonomy of Indigenous entities.

4. Foster Open Dialogue: Engage in continuous, meaningful dialogue with Indigenous leaders and communities. This involves not just listening but actively seeking to understand and incorporate their perspectives into regulatory practices.

5. Support Capacity Building: Invest in building the capacity of Indigenous organisations to manage their own affairs effectively. This includes providing resources, training, and support to strengthen their governance structures and operational capabilities.

6. Shifting Mindsets to a Strengths-Based Approach: It’s imperative to shift our mindset from viewing Indigenous corporate governance as inferior to mainstream structures. Indigenous corporations are built on sophisticated, traditional governance frameworks that have long predated contemporary models. Embracing a strengths-based approach means recognising the robustness and relevance of these frameworks and integrating them into our regulatory practices.

Stepping into First Nations’ Worlds

As regulators, crossing the bridge both ways means not only building pathways for Indigenous communities to engage with regulatory frameworks but also actively stepping into First Nations’ worlds to understand and integrate their perspectives. This approach ensures that governance is informed and enriched by cultural and social determinants that Indigenous communities bring to the table. By integrating insights from regulatory engineering, architectural design, and anthropology, and by working together purposefully, regulators can help ensure that First Nations communities have the tools and support they need to thrive.  Supporting First Nations to build strong, equitable, and sustainable communities requires more than just regulatory oversight; it demands genuine engagement and mutual respect. Let us commit to not just building bridges but also walking across them together, ensuring our practices are both inclusive and effective.

¹ For example, in the Australian context regulators at ORIC,  ASIC and ACNC can consider working  together on how their regulatory environments can foster open dialogues, adopt a purpose-driven approach and support capacity building in Indigenous corporations.  

² Office of Registrar of Indigenous Corporations | Office of the Registrar of Indigenous Corporations (oric.gov.au)