Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner
Sydney, April 1995.
In 1994-95, an Australia-wide exercise in Indigenous policy writing took place under the direction and management of Aborigines and Torres Strait Islanders: the development of an Indigenous 'social justice package'. This represented the third phase in the three-part response by governments to the High Court's Mabo [No 2] decision in mid-1992. The first phase was the enactment of the Native Title Act 1993 (Cth). The second phase was the establishment of the Indigenous Land Fund to purchase land for those who would not benefit from the Native Title Act and the High Court decision. Last of all came the social justice package, which was designed to redress the longstanding disadvantage suffered by Australia's Indigenous population.
The Council for Aboriginal Reconciliation's report on the social justice package, entitled Going Forward: Social Justice for the First Australians, appeared in March 1995.[1] This was quickly followed by the ATSIC report Recognition, Rights and Reform, the title of which captured the essence of the whole project. The first volume of the report published here was written by Mick Dodson, who was then Aboriginal and Torres Strait Islander Social Justice Commissioner in the Federal Human Rights and Equal Opportunity Commission. It was accompanied by two thick volumes of background materials which have not been reproduced.
The CAR, ATSIC and HREOC reports together represent an essential consensus on major issues, but reflect the different emphases and mandates of their organisations. Despite the diffidence of governments in following up the process which produced these documents, these three reports can be seen as benchmarks, even high water marks, in Australia's search for workable, just, and effective Indigenous policy.
Some commentators have suggested that the third report reprinted below is a sort of map for the journey into a Reconciliation landscape. As its author, Mick Dodson, writes near the beginning: 'the call for Indigenous social justice initiatives is nothing less than the challenge to articulate and, where necessary, re-write national policy'.
The idea of a Social Justice Package arose during negotiations between the federal government and representatives of Aboriginal and Torres Strait Islander organisations following the High Court's 1992 decision on native title. Specifically, it was accepted that the enactment of the Native Title Act 1993 and the establishment of an Indigenous Land would not, on their own, be an adequate response to the High Court's judgment. In particular, they would not fully address the continuing disadvantage experienced by Aboriginal and Torres Strait Islander peoples. Accordingly, it was agreed that a further package of measures directed towards structural reform, and encompassing a broad range of social, economic and cultural factors would be implemented.
Aboriginal and Torres Strait Islander peoples were invited, through the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Council for Aboriginal Reconciliation , to provide their ideas on possible social justice initiatives. The ATSIC and CAR were submitted to the Prime Minister in March 1995.
As the Aboriginal and Torres Strait Islander Social justice Commissioner, I have a legislative mandate to promote discussion and awareness of the human rights of Torres Strait Islander peoples, to undertake research for the purpose of exercise and enjoyment of such rights, and to make recommendations as should be taken to ensure the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples.' This is the basis on which I provide a submission. I trust it will be a contribution to the broader process of achieving social justice for Indigenous Australians.
The recent ATSIC and CAR reports on social justice each include wide-ranging recommendations on particular policy and programme initiatives. The exclusion of most these from this submission should not be seen as my rejecting their worth. I have to focus on the process of achieving social justice instead of identifying particular initiatives which government might implement.[2] The basis of my submission therefore a focus on the key areas of structural change which I believe will most contribute to the enjoyment of human rights by Australia's Indigenous peoples.
It is my view that the forthcoming negotiations between government and Indigenous representatives over the content of social justice initiatives represent the most important opportunity for significant reform in Indigenous policy which this country has seen.
What must be established from the outset of the process are the foundations on which any social justice initiatives ought to be based and their broad objectives.
Initiatives must be founded on a recognition of the rights of Aboriginal and Torres Strait Islander peoples and must be directed towards a state of affairs where Aboriginal and Torres Islander peoples will enjoy our rights. If it is to represent the type of reform this country is ripe and achieve the significant changes required, it must, from the outset distinguish itself from the welfare-based approaches which have characterised Indigenous policy to date. My two Reports (1993 and 1994) have developed in some detail the principles of a rights-based approach and how it differs from welfare policy. This submission will illustrate in concrete terms how rights-based policy can be developed and implemented and what rights-based policy might look like in this country.
The High Court's decision on native title recognised that the land (native title) rights of Indigenous peoples had been violated since colonisation and that, because of the Racial Discrimination Act 1975, there was now a legal obligation to recognise such rights and title. In this sense, the decision dealt with what can be labelled the 'distinct rights' of Aboriginal and Torres Strait Islander peoples. While the High Court decision was specifically concerned with Indigenous land title and rights, its acknowledgment of the ongoing legal validity of Indigenous law and custom pointed to the need for a broader recognition of the fact that as distinct peoples, Aboriginal and Torres Strait Islander peoples are entitled to enjoy distinct and unique rights. Such rights arise from our status as the First peoples of this country, peoples whose rights predated its colonisation and the imposition of Indigenous law and social structures. Such distinct rights include, but are not limited to, it to practice and enjoy our distinct cultures, the right to control over natural resources and the environment, and the right to self determination.
It is only our distinct Indigenous rights which we do not currently enjoy. The wholesale violation of our basic 'citizenship rights' is hardly news. Such citizenship rights include the right to a decent standard of health (measured by mortality and morbidity rates, infant and child mortality etc.), the right to education, rights to housing and essential services, and the right to equality before the law.
According to virtually every indicator of socio-economic status, including health, education, income and employment, Aboriginal and Torres Strait Islander peoples suffer significant disadvantage when compared to other Australians. I trust that there is no need for me to cite the countless studies, surveys, Royal Commissions and parliamentary inquiries which have found and confirmed this fact. Their unanimous conclusion is that the basic citizenship rights which are generally enjoyed by all Australians are consistently and often profoundly violated in the case of Indigenous Australians.
If it is the aim of the proposed social justice initiatives to reverse the historical violation rights of Indigenous peoples, then they must address both our distinct rights and which we are entitled to enjoy along side all other Australians.
The notion of 'human rights' is beginning to gain currency in Australia. We have yet, however, to establish a firm tradition of social policy grounded in human rights. It remains the case that for all Australians it is in international instruments that our human rights been most clearly articulated.
The Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Racial Discrimination (all ratified by Australia) form the most comprehensive statements of the basic citizenship rights which Indigenous peoples seek to enjoy along with all Australians. They have all been widely ratified and are generally accepted in international law, and by the international community, as statements of the fundamental human rights to which all peoples are entitled.
The distinct rights of Indigenous peoples are rapidly gaining status in international law. They have been partially articulated in the International Labour Organisation Convention 169, and extensively articulated in the Draft Declaration on the Rights of Indigenous Peoples. While the Draft Declaration has not yet gained formal status in international law, it has been recognised as an international standard for the recognition of the integrated rights of Indigenous peoples. Both Aboriginal and Torres Strait Islander organisations and the Government have made significant contributions to its development. Throughout the life of the United Nations Working Group on Indigenous Populations, where the Declaration has been developed, the Australian Government has been consistently supportive of the principles it articulates. When it is approved by the United Nations, it will have the same status as the Universal Declaration of Human Rights.
What can be confidently anticipated is that in the future, international law will require the recognition of Australian Indigenous claims to lands, seas, wildlife and resources. This can encompass ownership and/or management of lands, seas, wildlife and resources and intellectual and cultural property associated with them.
In addition to these instruments, there is a definite trend in other First world countries such as New Zealand, Canada, the United States and the Nordic countries to recognise the distinct rights of Indigenous peoples. In some cases such recognition is formally set out either in legislation or the country's Constitution; in others it is articulated in instruments developed by the Indigenous peoples of the country or region themselves; in others, recognition is achieved through the acts and practices of the state which implicitly take into account Indigenous rights.
If Australia wishes to stand alongside other countries of the United Nations as a nation which respects human rights., it must ensure that its domestic laws, policies and practices guarantees to all its citizens all the rights recognised by the international community and in other comparable countries. It is no secret in the international community that this is not the case with respect to Indigenous Australians.
The recommendations in this submission relating to constitutional reform and the negotiation of regional agreements provide some concrete proposals for the Australian Governments recognition of distinct and comprehensive Indigenous rights.
There is one aspect of the public discussion about the Government's response to the High Court's decision on which I find very worrying. It is the presumption that with the passage of the Native Title Act and the establishment of the Indigenous Land Fund, the Indigenous land question has been resolved. Clearly it has not. As is now widely matters of ownership, control and access to land are central and critical to the exercise of Indigenous rights. The Native Title Act will at best result in a very small proportion of landless Indigenous people achieving land justice. The Land Fund will certainly not be able to provide for the remainder Denial of access to a land base is not only a denial of an Indigenous right, in many cases, it is also the root cause of continuing social and economic disadvantage and social injustice. I urge that land issues be kept at centres stage in deliberations over the so-called third leg of the response to the High Court decision. The first two legs –The Native Title Act and the Land Fund – are simply insufficient to address the fundamental issue of land.
I have addressed the submission to the Parliament of Australia, rather than the Government. This is a deliberate choice and reflects my firm belief that matters of Indigenous policy need to be elevated above party-political debate. Indigenous social justice is not a parcel of goodies to be delivered by government. It entails accepting the rights of Indigenous peoples and establishing processes which translate the principle into the actual enjoyment and exercise of rights. Without cross-party support for advancing in such a way, social justice will never be a reality for Indigenous Australians.
The time has come for a fundamental shift in public policy in respect of Australia's Indigenous peoples. The call for Indigenous social justice initiatives is nothing less than the challenge to articulate and, where necessary, re-write national policy. That means an examination of the underlying assumptions, operating principles and direction of policies and programmes designed for or significantly affecting Indigenous peoples.
A fixation on the nuts and bolts of implementation and manipulation of existing approaches and administrative structures has prevented policy makers stepping back sufficiently to take a look at the entire approach. In a policy area like Indigenous affairs, matters of philosophy are central. For example, policies flowing from the basic assumption that Indigenous persons simply need to be allowed to compete equally as individuals in a predominantly European-derived society will differ markedly to those that flow from an approach that values different cultures with their different traditions and practises.
After 207 years of failure of official non-Indigenous policies and programmes to win Indigenous hearts, accommodate Indigenous aspirations, or solve Indigenous needs, it would be obvious that the fault lies in our assumptions and it is here that change must occur.
As the basis of this shift must be the transition, too little understood, from the administration of Indigenous welfare to the recognition of Indigenous rights. Although the rhetoric of the rights of Indigenous peoples may now be mouthed by government officials, rights based approach has all too easily been assimilated into the practices in which they are already well versed. Even 'self-determination' has come to mean little more than informing Indigenous people of a programme or policy before it is launched. This is a mockery of a term which has a clear meaning in the field where it originates, international law. Policy makers must accept that Indigenous people are not a special category of disadvantaged souls who require attention or even caring and gentleness. We are peoples with rights and imperatives of our own. And our principal right is the one to make the decisions which direct our present and future. To date in Australia this right has received little more than nudges and winks.
A national policy is more than an opportunity; it is an urgent need. The deepest significance of the High Court's decision on native title lies not in its implications for property law, but in the moral and social challenge which it has thrown up. After more than two centuries of non-Indigenous presence, the Australian community has been told by its highest legal authority that old assumptions of non-Indigenous superiority and a right of dominance are misplaced. The officially sanctioned methods in which the modern Australian nation established itself on our territories was simply wrong. That is an historic repudiation of major elements of national history and tradition, and would be a jolt for any nation-state. More than any centenary of the federal Constitution or thresholds of a new millennium, Mabo demanded that Australia redefine and renew itself as a society and a political culture.
However, my concern in this report is not to reiterate past injustices. It is to address social justice in our time, and the future. This is the moment to build a sense of shared community among the peoples and regions of this continent.
Aboriginal and Torres Strait Islander social justice is not simply the concern of Aborigines and Torres Strait Islanders ourselves, and those specific offices designated to deal with us. It is a fundamental problem of the relationship between different cultures and peoples involving the whole of Australian society.
Social justice for Indigenous Australians is about renewing Australia. It is about allowing us the benefits, opportunities, and living standards that this country's natural resources have created. It means making us welcome in the contemporary Australia built by the White Man (sometimes with black labour and always on black land). It means bringing the non-Indigenous peoples – who have too often in the past simply policed it or mined it or grazed it while dreaming of a cultural home far away – to care for this land and feel at home with its ancient inhabitants. Those people may be 19th century British and Irish families, or mid-20th century and newer arrivals from Greece and Lebanon, Chile and Vietnam. Nevertheless, they all share obligations for our housekeeping. The national task of Indigenous social justice means nothing less than constructing together or cultivating a new sense of nationhood which provides not just shelter but a home for all our peoples.
Failure here has many outcomes. In relation to Aboriginal health, for instance, researchers have recently been stressing that even by the depressing measure of statistics for disadvantage among Indigenous peoples in countries like New Zealand, Canada, and USA with similar histories to our own, Australia has failed as a country. For instance, we see many Australian business people and professionals adopting a suitably international sophistication in treating immigrant non-Europeans as equals at work and leisure but continuing to maintain a disdain for Indigenous Australians. It is pointless to trumpet insistence on 'a fair go' or a united continental nation while we maintain such divisions by race.
We must establish a framework for community which includes Indigenous no less than non-Indigenous Australians. While non-Indigenous Australians debate aspects of the Constitution –argue about whether to replace or strengthen the federal system, dispute the size, shape and powers of local and regional government, and consider new economic and political relationships with Asian countries - it should be no surprise that Indigenous Australians also have questions of their own about the reform of political and legal arrangements.
The cornerstone of Indigenous policy and politics in Australia is identity and the maintenance of that identity by individuals in company with others who share it. We are not simply isolated individuals, but peoples, with a homeland and a traditional culture. In this we are not unique, but unlike other cultural minorities in Australia, our cultural homeland is right here in Australia. Its maintenance is not the responsibility of peoples in distant lands but rather rests entirely in the hands of Australians.
If the identity of Australians as a whole means anything it must include the uniqueness which our Indigenous cultures provide. All Australians have responsibility for the well-being of Indigenous cultures. In fact Australia has agreed to observe this obligation under international law.[3]
Maintaining Indigenous identity and culture, however, is not simply an end in itself. Unless and until our identity is recognised we cannot and will not participate as full Australian citizens. It is one of the paradoxes of Indigenous policy in nation-states that only through recognition of distinct communities and rights pertaining to such communities are Indigenous people willing – and, for the most part, able – to accept the majority society as other than a threat and an alien world.
In the chapters of this submission I will look at the more detailed implications of a framework for community in Australia. From the outset, however, it is important to understand the prime Federal Government role in this matter. Although Australia only enshrined a national government role in Indigenous affairs through a 1967 constitutional referendum, it was common practice in Britain's colonies that central government – first London and then national capitals – held powers to safeguard Indigenous peoples from local and regional land and resource development. The American and Canadian constitutions follows this pattern, and Britain had similar intentions in respect of Australia at various times.[4]
Indian and Inuit peoples in both America and Canada today regard this federal guarantor role, despite the many instances of neglect or maladministration over the years, as their irreducible constitutional protection. There may well be arguments for state and territory roles in Indigenous affairs. Perhaps this or that state has a fine policy in some matter, or has a premier and cabinet for the moment sensitive to Indigenous issues. With greater Indigenous self-government there will no doubt be many pragmatic and mutually beneficial arrangements made between Indigenous communities and state and territory governments.
Nevertheless, the fact remains that those who argue for states rights in Indigenous affairs almost always do so because they do not wish to accept the relatively higher standards for Indigenous-government relations set by national governments. And this is true not only in Australia but in all other countries. National governments are, in principle, essential overseers, guarantors and facilitators in relations between a nation's Indigenous and non-Indigenous peoples. A concrete expression of the Australian Government's responsibility is urged in the chapter Funding Reform.
The processes by which Aboriginal and Torres Strait Islander people negotiate the new framework for community with our fellow Australians may be no less important than the actual outcome.[5] By joining in the enterprise of Australian nation-building as equals and by having genuine opportunities to design our future within Australia, Indigenous peoples can begin to solve endemic socio-economic problems as well as commit ourselves to a shared Australian community.
Finally, those who fear that full recognition of our unique place in modem Australia will be divisive, or that it violates Australian principles of social equality, are dead wrong. Australia is divided already.
There is a black, oppressed, imprisoned Australia dispossessed from its home but increasingly unwilling to tolerate this injustice. And there is another Australia which believes that it was the first and only Australia, and insists that our ancient cultures are, if anything, decorative curiosities.
It is an Australia denying part of itself.
Wholeness and equality are fine national values. But they will only be attained when our Indigenous reality is honestly recognised and embraced.
The failure of current Australian policy regarding Indigenous peoples to meet contemporary international standards begins with our most fundamental document, the Australian Constitution. Although, since 1967, the Federal Government has had constitutional power and responsibility in respect of Australia's Indigenous peoples, in deference to State and Territory governments, it has exercised them modestly and reluctantly. Further, the Constitution itself is an inadequate basis for contemporary policy making.
In 1901, the 'founding fathers', white, male and bearded, saw no reason to place the rights of Indigenous peoples on the Constitutional agenda. Indeed, Indigenous peoples were totally excluded from the process of forming the Constitution. As Australians approach the Centenary of federation, not only must we be mindful of the principles and powers we wish to lay down in our foundational document,, we must ensure that the constitutional reform agenda recognises the active involvement of Indigenous peoples in the reform process.
A national constitution is the supreme cultural statement of a society. This is true of both the single document labelled, The Constitution, and the wider constitutional arrangements which provide the country's governing framework. In the 1960s the Australian public voted overwhelmingly to remove a blot from the Australian Constitution in the form of a discriminatory clause on Indigenous peoples. That vote was an important statement of the change of sentiment amongst Australians and was recognised as such at the time.
In the 1990s there is more understanding of Indigenous society, needs, and history in the wider Australian community. Both Indigenous peoples and many influential non-Indigenous persons now see a more positive affirmation of Indigenous rights and the Indigenous place in Australia as a requirement of any authentic constitutional reform. For instance, a useful conference in June 1993 was held by the Council for Aboriginal Reconciliation and Constitutional Centenary Foundation.[6] A group of invited Indigenous and non-Indigenous persons heard various Australian views as well as presentations by Indigenous leaders and experts from New Zealand, USA, and Canada. There was a large degree of consensus reached on two related points:
It is important to realise that in constitutional work, process is as important as product. That is, the legitimacy of the process by which change is agreed or negotiated is essential to its results being accepted by both sides. This is particularly true if the settlement of historical grievances is a principal factor. Indeed, the whole exercise will seem unjust or will become a new grievance itself if the process is not seen to be fair by the weaker side.
For Aboriginal and Torres Strait Islander peoples, constitutional reform has three main potential uses. It may provide:
Recognition will have great benefits over time in changing non-Indigenous social attitudes towards Aborigines and Torres Strait Islanders. The elaboration and protection of rights is, of course, the major objective of Indigenous people in constitutional reform. Nothing else will protect Indigenous lands, sea, other resources and other rights from hostile politicians and interest groups who may take control of legislatures and political agendas from time to time.
The constitutional establishment of processes or frameworks may be useful for several reasons. They can assure nervous non-Indigenous people that their interests will be included; they provide time to resolve issues which may be too hard or too little prepared for immediate solution; they provide time for all sides to get used to certain ideas and to educate the concerned public; and, they make a commitment to finding solutions where none may yet be in sight. The Canadians, for example, wrote into their 1982 Constitution Act a provision to hold a conference of the Prime Minister, premiers, and Indigenous leaders to discuss Indigenous rights, thereby launching a process which became very important in changing official and public attitudes towards Indigenous issues. In Australia one possibility is a clause which provided for the negotiation and recognition of Indigenous regional agreements.
Of course, recognition could be on a grand scale and involve something like a national covenant or reconciliation accord which contained a negotiated statement of purposes, objectives and principles for relations between the Commonwealth and Aboriginal and Torres Islander peoples.
Such a document could be recognised in some form in the Constitution, or could become the framework for a special institution created to make progress in honouring and implementing its provisions. There are many examples of such documents advancing Indigenous rights around the world – the 1751 Lappecodicilen applying to the Sami of Norway and Sweden, the Royal Proclamation of 1763 and Jay Treaty of 1794 for Indians of both Canada and the USA, the 1840 Treaty of Waitangi, the 1948 Faroese home rule, the 1971 Alaska Native Claims Settlement Act, the 1975 James Bay and Northern Quebec Agreement, the 1987 Iqaluit agreement between Inuit, Dene, and Métis of Canada's Northwest Territories, etc.
It is valuable to consider the recent case of Canada which is the country with most experience of Indigenous constitutional reform.
Simmering Canadian Indigenous discontent in the 1960s was fuelled in 1969 by the federal Government white paper on Indian policy which urged the phasing out of Indian rights, status, and programmes. Rather than ignoring these grievances federal Government responded in a constructive way by funding regional and national Indigenous associations to press their grievances and viewpoints. It recognised that Indigenous peoples had concerns which needed to be heard and which would not be heard unless they had their own adequately resourced institutions and processes. Federal funding was provided on a multi-year and formula basis so that no group could be singled out and punished or undermined when governments did not like what was being said. The associations were free to hire their own staff and set their own agendas. They had enormous impact, both on federal policy-making and in some provinces, as well as on public opinion.
At the end of the 1970s, the federal Government invited the national Indigenous associations (in which the regional groupings were represented or federated) to join in the work of national constitutional reform. This initiative quickly resolved itself into a particular sub-process within the overall and ongoing national constitutional reform. The national and regional Indigenous bodies were specially funded by Ottawa to prepare their constitutional case, hold consultations, and engage experts. After experiencing two years of Canada's constitutional conflicts – West vs East, Quebec vs the rest, federal vs provincial governments – the Indigenous groups managed to convince governments,, with the help of public opinion, to amend the Constitution in 1982 to recognise 'aboriginal rights'. High Court decisions since, notably Sparrow in 1990, have provided a firm legal basis for such rights, for example, in relation to sea fisheries. The Canadian Government now recognises those 'aboriginal rights' to include Indigenous self-government.
The Canadian constitutional negotiations between Indigenous peoples and governments have been difficult and complex, and have not yielded many amendments to date.
A strong Indigenous package was agreed in 1992 as part of an overall national constitutional reform, only to be voted down in a referendum which saw Canadians revolt against their political leaders for a variety of reasons. However, much else has changed. The negotiation process has brought leading politicians and central agencies of governments into contact with Indigenous peoples and Indigenous issues, bringing new priority and fresh thinking to what had long been a backwater of welfare-style programs. Bargaining between equals replaced hand-out patronage. Indigenous peoples were seen to be emerging political communities – in various stages of readiness for wider responsibilities, of course, but all on the same road and going in the same direction.
However, high-level attention and new relationships, confirmed for the public by all-day nationally televised conferences of the Prime Minister and premiers with the country's Indigenous leaders, were only the tip of the iceberg. Most lay below the surface. For years large areas of Canada – over half of the national territory – were the subject of land claims negotiations which included many socio-economic, environment, resource management, and self-government features. In other words, while discussions of national constitutional issues were going on, Indigenous communities in various regions were uniting to negotiate detailed new territorial and political arrangements for whole areas of the country. Furthermore, in Indian communities situated on land held in perpetual trust for Indigenous peoples by the federal Government and provided for by the national Constitution of 1867, local people were taking over more and more of the service delivery and local governance from Ottawa. They were seeking wider powers and slowly gaining them.
The Canadians also saw environmental and development disputes across the country involving Indigenous peoples, their-lands, resources and fundamental concerns. This occurred particularly in relation to mining, logging, oil and gas exploration, road building and especially hydro-electric power projects. Also, the need for Indigenous public services in urban areas was a perennial unresolved issue. Indigenous peoples were insisting that their intellectual and cultural property rights be recognised and legally protected. Essentially the place of Indigenous peoples in Canada was under negotiation, from top to bottom. The good news was that this shake up provided an opportunity, not only to air grievances, but to negotiate substantive resolution of past and continuing injustices; the bad news for governments was that this meant that Indigenous peoples were insisting on full rights and high-quality services, and on being substantively compensated for their lands, waters, and seas which provided the national wealth.
Other countries besides Australia and Canada are facing this issue. New Zealand is struggling to find bridges between Maori and Europeans. Despite the earlier history of American Indian conflict, Alaska today is a situation like Northern and Central Australia: recent statehood, Indigenous claims settlements, and federal protection of environmental and other lands have created a new arena for conflict and negotiation as the Inuit, Aleut, and Indian peoples there seek to rebuild their autonomy and economic base around village and regional self-government.
The three Scandinavian countries have had substantial difficulties coming to terms with Sami rights, although Norway has recently passed a constitutional amendment essentially recognising the country as bi-cultural, Sami and Norwegian, and insisting that the government guarantee to Sami the means (which is accepted as including natural resources, land and sea) to maintain their distinct culture. Greenland, an Inuit territory, has virtual autonomy in relation to Denmark, an outcome negotiated during the 1970s.[7]
With the benefit of hindsight, it is clear that several things have been happening. Indigenous peoples have been negotiating, whether explicitly or implicitly, a new relationship with national majorities. The negotiation process itself, and the emerging Indigenous political power in general, have facilitated Indigenous peoples joining the nation-state and its society. Georges Erasmus, now Co-Chair of Canada's Royal Commission on Aboriginal Peoples, put the proposition to the Prime Minister in 1979 that Inuit and Dene Indians should negotiate the entry of their homelands into Canada as the other colonies which became Canadian provinces had done. They too had a right to secure particular economic, legal, cultural and other arrangements to suit their heritage and circumstances. That is essentially what the Inuit have done in creating their region, Nunavut, as a full Northern territory within the Canadian federation.[8] It may be what Torres Strait Islanders and a number of Aboriginal peoples will do in Australia.
In all 'first world' countries we see the same thing. Indigenous peoples reject the notion that they are merely individuals who have failed to 'fit in' or are in need of more caring social workers. They are seeking to restore their sense of people hood and their community life under their own control. This is a constitutional challenge. Indeed, one of the principal roles of constitutions in the world is to accommodate differing regions, and differing cultural, religious, and linguistic traditions. Federal constitutions, like that of Australia, are specifically designed for such a purpose. Maintaining diversity through constitutional structure is what they are all about. They are also arrangements designed to secure a social contract between people and government, and among peoples and regions.
There are several points to note in this sort of national healing or negotiation process – this reconciliation in action. It takes time., and is not limited to a single process. It involves give and take, and much discussion. It requires some high-level and symbolic actions no less than work on the nuts and bolts. It involves the change from a national view of Indigenous peoples as unfortunate needing help to assimilate on the majority's terms to recognition of Indigenous cultural communities as actual or emerging political entities. It does not involve threats to national unity, although it requires some ingenuity and flexibility in adapting the majority's political culture and institutions. Positive outcomes are best assured by the provision of special processes to facilitate negotiation.
There is not much understanding in Australia of 'popular' constitution-making – that is, by the people. In the past we have tended to leave the matter to a few political enthusiasts and legal experts. The wider public has participated by occasional – and mostly negative – referendum votes. This has hardly been a recipe for a dynamic national constitutional culture.
Such an archaic and negative approach to the constitution is ill-adapted to the mood and aspirations of Aborigines and Torres Strait Islanders today. It would seem that many non-Indigenous commentators and politicians feel the same way. They are looking for positive affirmation of the values, culture, and rights of a confident and expansive continental society. In such a context Indigenous peoples have much to offer as well as much to gain.
In 1901 the colonies of Australia joined to create a new-country. In 2001 the Indigenous peoples may be able to join that federation, too. There is a wide range of specific possibilities for change to the national Constitution which Australian Indigenous peoples may consider
It is not always easy for people to visualise what constitutional reform would mean. An excellent publication by Father Frank Brennan, Securing a Bountiful Place for Aborigines and Torres Strait Islanders in a Modern, Free and Tolerant Australia, is recommended as an introduction.[9]
The following are broad-ranging examples of possible constitutional change. I want to make it abundantly clear that I am not advocating the inclusion of all these options. I list them solely to illustrate the potential range of constitutional change that could be considered.
1) educate the public and governments and improve race relations by stating that Indigenous peoples are unique, with unique status and history quite unlike more recent immigrants;
2) commit Federal, State and Territory governments to equalise public services and facilities within their borders to remove regional and racial disparities;
3) provide a legal and/or moral framework for public policy towards Indigenous peoples, perhaps through a preamble to an Indigenous peoples section of the Constitution, with Indigenous peoples and governments to negotiate the detailed contents of the section later;
4) guarantee legal protection for treaties, land claims settlements or other agreements between Indigenous peoples and governments;
5) specify certain rights of Indigenous peoples;
6) alter the system of political representation to better reflect the diversity of community and the make up of the Australian population (for example, through multiple seats in one electorate).
7) create Indigenous Parliaments for Torres Strait Islanders and Aborigines through which we can decide matters, govern areas or advise the national parliament (as in Norway);
8) provide for customary law courts and dispute resolution;
9) establish responsibility of different levels of government, including Indigenous governing bodies for services or other matters pertaining to Indigenous peoples after a full review of the adequacy and relevance of current spending;
10) establish or recognise Indigenous self-government in principle or in specific geographic areas (like Torres Strait or the Tiwi islands or the Pitjantjatjara lands), or for certain categories of subjects (such as sacred sites);
11) establish Torres Strait Island and Aboriginal grants commissions to fund Indigenous self-government;
12) establish ecologically sustainable development planning commissions to develop integrated self-government, economic and environmental plans and structures for lands and seas under Indigenous management;
13) establish national Indigenous land rights and sea rights or processes to define such rights nationally;
14) commit governments to constitutional conferences or other processes with Indigenous people to discuss specified subjects like land and marine rights, self-government, funding and delivery of services (as did s 37 of Canada's Constitution Act, further formal political accords); or
15) add one or more Indigenous treaty or statement to the Constitution as an appendix or schedule, together with provisions for interpretation and application.
Of course, many proposals among those listed above could be enshrined in special legislation of the Australian Parliament, or achieved in a variety of other ways. No less important will be ensuring that well-intended amendments proposed by others do not have unforeseen negative effects.
Constitutional reform involving Indigenous peoples can take three main forms:
1) the amendment of the national Constitution which came into force in 1901 (or creation of a parallel document or process of reconciliation);
2) change in the general structures of Australian political life of which the national Constitution remains the summit, but which can include re-organisation of responsibilities and relations among governments whether by Constitutional amendment, other laws, or other politico-administrative arrangements; and
3) the creation of local 'constitutions' providing for the powers and procedures whereby Indigenous communities or regions manage their own affairs to a greater or lesser degree.
The three processes are by no means mutually exclusive. In Canada during the 1980s, all three were pursued simultaneously.
In the first case, a major national debate would inevitably occur. Many of the most controversial items in that debate will apply to any movement for constitutional rights – rights of the disabled, of women, of prisoners, of refugees and migrants, of ethnic minorities, et al. Constitutional change has been difficult to achieve in the past. However, one could well imagine a contemporary 'first world' country with a very well informed and aroused public supporting and respecting these rights. The failure of the 1988 Canadian constitutional referendum questions was hardly a good example, the Yes position being too lightly defended during the campaign, left to ever wilder attack and misrepresentation, and opposed by the Opposition in Parliament.[10]
Whether or not a national process takes place or succeeds, the second and third types of constitutional reform listed above may bear more fruit. Reforms here will be less dependent on a general spirit of constitutional reform and more on current needs.
For this reason, I would encourage the Federal Government to guard against taking an exclusive view of constitutional reform and focussing on nothing but the document itself. It should also explore those constitutional questions which may not directly or immediately involve the national constitution but which are no less fundamental to the constitutional place of Indigenous peoples in Australia. In these I would include the future of Northern Territory Aboriginal peoples and lands, particularly in respect of the NT government's campaign for statehood; the future of the Torres Strait; service delivery issues between Federal, State and Territory and local governments, recognition and management of Indigenous marine rights, and provision for comprehensive or multi-functional regional agreements.
In establishing a process whereby Indigenous Australians could participate in the process of constitutional reform, the Commonwealth would well do look both to the Canadian example where the Federal Government provided specific funds for Indigenous organisations to participate in the debate, and to the United Nations Working Group on Indigenous Populations and the 'Voluntary Fund for Indigenous Populations'.
In the national political culture of the majority, constitutional issues are seen as small specialty of law assigned to a few experts. However, for Indigenous peoples, what is constitutional is our whole relationship with the society which has dispossessed or disadvantaged us. Furthermore, within the Indigenous community constitutional work may become a process of general awakening and one which is not easily wrapped up in a meeting or two. We must understand that these matters are fundamental processes and they take time. It is utterly futile for a government to commit itself to a single event or a moment in time. On the contrary, a process which has time enough for working through such differences is required.
That recognition of the unique place of Indigenous peoples in contemporary Australia be a fundamental principle in any national constitutional review and revision, that this include recognising the right of Indigenous peoples to represent ourselves in negotiation of constitutional change with governments.
That the Federal Government, in consultation with the Council for Aboriginal Reconciliation., ATSIC,, the Constitutional Centenary Foundation and the Aboriginal and Torres Strait Islander Social Justice Commissioner establish structures and processes of constitutional reform and national renewal which are building towards the new millennium and the centenary of the Constitution in 2001.
That Indigenous constitutional structures and processes provide for access by all sections of the Indigenous community through consultations and public forums to the development of positions of negotiations with governments. This will require sufficient resources for the preparation of information and consultation materials, as well as the equitable funding of forums or groups for the expression of diverse views.
That structures and processes for Indigenous constitutional recognition and reform be directed not only to achieving specific rights but to continuing processes for the renewal of relations between Indigenous and non-Indigenous Australians.
The term regional agreement is being used increasingly in Australia, although seemingly with much confusion and controversy. Basically, it involves the concept of equitable and direct negotiations between Indigenous peoples, governments and other stakeholders in a region to recognise the rights of Indigenous peoples and to protect them in a contemporary legal system. There is no pre-ordained form which a regional agreement should take. Rather, it is a means for Indigenous peoples to define our own solutions and obtain legal, administrative, and political recognition for such definitions. A working definition might be:
A regional agreement is a way to organise policies, politics, administration, and/or public services for or by an Indigenous people in a defined territory of land (or of land and sea).
The only firm requirement is that there is a region. What one chooses to organise within that region, and the way in which one chooses to organise it, is up to the Indigenous people alone, or the Indigenous people together with others who have power and resources for or in the region.
Australian Indigenous peoples have extensive experience in negotiating in a range of contexts, for example resource agreements (such as the agreement between the Jawoyn people and the Zappopan mining company in the Northern Territory), specific land claims, the joint management of national parks and land and resource management (e.g. catchment management by Kowanyama community in Cape York Peninsula), and management of service delivery.[11] What is required now is the active support of the Federal Government so that Indigenous organisations and communities can develop more comprehensive and equitable regional strategies which extend beyond these ad hoc arrangements.
A basic flaw in much past policy regarding Indigenous peoples is that it has been based on the idea that Indigenous peoples' problems can be solved as if they were merely individual personal needs. It has failed to recognise that the social and economic problems which beset Indigenous peoples cannot be solved outside the context of Indigenous cultural identity, and specifically local or regional identity. The non-Indigenous majority is rarely aware of Indigenous realities. Nor is it aware that for anyone from a minority it is not merely 'culture' as a distinct sphere that is alien. It is culture as it is embodied in all aspects of social, economic, civil and political life.
For us, there is no doubt that culture and identity are learned and practised in a social and geographic context. It is in the family or town or homeland that laws, customs, moral values and language are shared and observed. Each has stories of its origins and a sense of its own history. Reinforcing and strengthening this identity must be that first step to solving any other ills. It cannot be avoided.
Contemporary regional agreements offer an approach whereby Indigenous peoples are regrouping, or grouping together in new units, in order to solve their own problems in the context of this cultural identity. They are an old concept for solving new problems. A regional agreement creates or renews a social and cultural context in which Indigenous society can live, build, and flourish. Sometimes these are traditional historical associations of peoples, such as the Torres Strait or the Kimberley, even if they are now looking to new forms of organisation and new functions to help them deal with new realities and especially with other public authorities. Sometimes they are dispersed and dispossessed people in a large city who are finding in each other a society for the exchange and enrichment of cultural values while working together to solve particular social ills. Or they may be something between the two, like the Tangentyere Council which provides local government services and a wide range of culturally important functions to the town camps of several peoples grouped around Alice Springs. In each case they are evolving or negotiating new forms of organisation to deal with contemporary challenges of self-determination, social well-being environmental protection economic development, and cultural survival.
Approached from a 'rights based' perspective, regional agreements offer a vehicle to transform vague rights into a clear form of organisation and law so that Indigenous peoples achieve some real benefit from them. A person may have the right to food, but unless that person is able to hunt or buy or otherwise obtain food, an abstract right will not save them from starvation. Even where native title rights are recognised by the courts, as in Australia since Mabo it is not possible to make such rights mean anything in practice without further expensive court actions or without new laws and political and administrative structures.
In addition, it is unrealistic to think that property title on its own is sufficient to allow Indigenous peoples to determine our economic and social development. In reality, the recognition of property title does not even protect our land and sea rights. How can we conduct proper environmental management and protect our environmental rights without control over the forces which govern, and which can otherwise undermine, the natural resource base. Economic and social development and recognition of our rights can only be achieved where Indigenous peoples are involved in decision-making in all forums which impact on the region.
Regional agreements can provide a legal framework and procedures for linking Indigenous interests in a region with social justice, economic development and environmental protection by establishing an on-going policy framework whereby Indigenous and non-Indigenous interests can co-operate and co-exist through bicultural institutions for management and planning.
The development of a uniquely Australian concept of regional agreements will benefit from analysis of case histories overseas. This is modem Indigenous policy-making at its best – checking the experience of others for its strengths and weaknesses, analysing why and how it works, and then building that knowledge into our own designs to strengthen them.[12]
The first modem land claims settlement was in Alaska in 1971. The US Congress stepped in to resolve conflict between Indigenous land use and the ambitions of a newly formed state whose legislature was dominated by recent settlers and development interests. Indigenous peoples organised regionally and their regional units were recognised and formalised by the Alaska Native Claims Settlement Act 1971 which also provided for the selection and distribution of land. The ongoing saga of land, river and sea disputes since has been a sort of court-room Wild West show. Indigenous peoples have dung to their federal rights and status against the assimilation and development pressure of the State of Alaska. They have come to various conclusions.
Some regions are developing regional governments under federal law, while others like the North Slope Inuit have created strong governments using State law, although they regard their State relations as temporary and inadequate. Others are centring their hopes in the economic clout of their regional post-claims corporations. All, however, have found that the sort of uncertain and confrontational relations between Indigenous and State authorities, relations which have a familiar ring for WA and Queensland Aborigines, are an unsatisfactory interim arrangement. Meanwhile, regional Indigenous bodies have proven the best – and often the only – safeguard for these peoples as they struggle to establish a workable future and adequate community services and economy. To maintain productive environments of land and sea against irresponsible development, the Indigenous regions often find themselves working with the federal government and America-wide social and environmental movements to withstand the pressure.[13]
Two regional mega-agreements are worth noting because they involve various features which may be highly applicable to Australian contexts, both small and large scale.
Greenland has been the most remarkable regional agreement and one which has attracted tremendous international interest as a model for Indigenous self-determination. This huge island, most of it covered with thick glaciers, has a mostly Inuit population of 55,000 centred in outports and small towns of the South-West coast. From 1979 when the Home Rule plan negotiated by Greenland's Inuit politicians with Denmark came into effect,, a parliamentary-style Greenland legislature and government have taken over all the matters which the states control in Australia, and a few more as well.
All Greenland cabinet ministers from that time have been Inuit-descended and have spoken Greenland's Inuit language (in which all laws and official documents are written, as well as in Danish). Greenland and Denmark negotiate resources development on-and off-shore, with either side able to veto policy or any specific project. Greenland vetoed uranium mining and off-shore oil exploration in the 1980s, for instance. Fisheries off the South-West coast are Greenland's economic base, and are jealously protected against foreign boats and environmental risks. Block funding from Denmark is the anchor of public revenues but the Greenlanders are vigorously seeking out new economic opportunities, including tourism and mining. When the Greenland premier, Lars Emil Johansen, and his team visited Torres Strait and later took part in the Aboriginal regional agreements workshop in Cairns in mid-1994, he had much insight and experience to share.[14]
As noted earlier, Australian Indigenous organisations have found rich food for thought in the many failures and more recent successes in Canadian regional land claims experience. These agreements sometimes cover large areas, and to date most have been in Northern Canada where conditions are similar to Northern and Central Australia, with the obvious difference of -40 and +40 January temperatures. However, this pattern of agreement is now moving south into the more settled regions of Canada because it has proven a practical and successful means to settle Indigenous and non-Indigenous land disputes, to provide effective environmental and territory management, and to enable Indigenous peoples to tackle their own socioeconomic problems in culturally appropriate ways.[15]
Nunavut has been the Canadian regional agreement most noticed (though frequently misunderstood) in Australia.[16] It highlights the flexibility and scope for trade-offs which are the most attractive features of the regional agreement model. While Inuit obtained secure title to land and sea areas essential to them and their livelihoods, they share management of a territory larger than Queensland with the federal government and also share the managing of seas. Their marine harvesting rights are exclusive, and their harvesting needs for land species take precedence over all other people's.
The Nunavut Inuit insisted that Ottawa deal with their need for adequate and appropriate public services and self-government at the same time, so they negotiated a regional constitution and separation from the Northwest Territories to become a new Northern territory named Nunavut. The first Nunavut parliament and government will be elected in 1999. Nunavut claims and self-government, unlike earlier Canadian schemes which experienced initial problems, are being phased in through thorough implementation processes which Inuit have been negotiating with Ottawa to assure the best results and most local jobs. There was understandable interest when Nunavut's Inuit leader and project staff head spoke to a large Aboriginal and Torres Strait Islander gathering in Darwin in 1992.[17]
The regional treaty-making process under way in British Columbia (BC), a resource-rich region with social and political history similar to Queensland and Western Australia is important for Australians. After defeats in landmark court cases on native title, a new provincial government there is preparing negotiations in co-operative spirit with Indian leaders and the federal government:
The Province of British Columbia is committed to negotiating modem-day treaties with [the Indian] First Nations - treaties which clarify aboriginal rights to land and resources and address issues like self-government and the social, economic and environmental concerns of all parties.[18]
Particularly interesting for Australians may be marine environment and fisheries management in the impending BC treaties, already being rehearsed through annual negotiated agreements between the federal government and Indigenous regional or tribal groups.[19]
There are now half a dozen major regional agreements across Northern Canada, and many more under negotiation. Up to 75% of the country may soon be under some form of joint Indigenous-government management. Some are small regional groupings of small communities which may work together better than on their own, while others are large regions of one people such as Nunavut. They illustrate the general point that different solutions work for different peoples.
Some general conclusions may usefully be gleaned. In every overseas case an active role by a national government has been required to prevent Indigenous dispossession and to break the stalemate brought by regional, territorial, state, or provincial authorities.
The establishment of appropriate and just negotiating processes, with adequate resources and expertise available to the Indigenous side, is an obvious lesson. However, the most fundamental issue is that governments recognise Indigenous peoples as distinct and equal communities with whom they engage in political negotiation, not groups of disadvantaged persons who are patronised by welfare-type administration. The terrible bureaucratic instinct for control must be modified by the politicians' higher aspiration to negotiate with equals.
Another important lesson from both overseas and local agreements is that the regional agreements should provide the basis for on-going negotiation of management arrangements, rather than being locked into an unworkable rigid framework.
It appears that the following factors have facilitated effective negotiation from an Indigenous perspective.
Willingness: negotiation involves compromise. Negotiations must be bona fide, with the participating parties genuinely committed to settling outstanding grievances and claims.
Timing: comprehensive regional agreements cannot be negotiated quickly. They must allow for Indigenous time frames. The negotiating parties must be patient and adopt a long term policy focus.
Communication: the cultural differences between Indigenous and non- Indigenous society can make it very difficult or the parties to understand each others' values and needs. Consequently, negotiation must be buttressed by a program of education and information so as to bridge different negotiating positions.
Information and research: disagreements over use of Indigenous peoples' land are more likely to be resolved where there is a good information base about the issues in contention. Environmental, social and economic studies can help to identify the major issues and allow participants to evaluate the merits of the various options under negotiation.
Bargaining power: to ensure a fair settlement, Indigenous people must be able to speak from a position of strength. Indigenous peoples need access to expert advice and financial resources to enhance their capacity to negotiate fair settlements.
Unity: parties to negotiations must be legitimate and effective representatives of their constituencies. Indigenous representation must always be determined by Indigenous communities and their organisations. Negotiations are frustrated where a party is factionalised and does not speak with one voice, and there will be difficulties in implementing any final settlement where a sub-group feels that it was marginalised in negotiations.
Geopolitical realities: claimants are less likely to receive a favourable settlement where provincial (state) governments are involved or there are competing non-Indigenous developmental interests at stake.
Experience with settlement and development: the degree of existing poverty and despair among the claimants and the relative urgency of development pressures WM shape what compromises are necessary or acceptable to them.
Knowledge of existing models and precedents: the demonstration effect of other agreements can influence negotiating positions.
Public attitudes: public support for claims, either locally or nationally, can lead to significant strategic alliances.
Although the term 'regional agreement' has been borrowed from the Canadian experience, regional agreements in Australia will have their own character and, if they are to grow out of community needs, will necessarily take diverse forms.
In the Canadian experience, the trigger for regional agreements has been the existence of native title. Similarly, in Australia, a native title claim or the formal recognition of the existence of native title, may act as triggers for negotiation. In fact regional agreements are provided for in the Native Title Act 1993. Native title holders may, under an agreement with Commonwealth, State or Territory Governments, surrender their native title rights and interests in relation to land (s 2l(12)(a)) or authorise any future act that will affect their native title (s 2l(l)(b)). Such agreements may be made on a regional or local basis (s 2l(4)).
A trigger for regional agreements may therefore be the legal and political uncertainty remaining as to whether native title exists in a given area of land or sea, or how its existence will effect other stakeholders. The effectiveness of the National Native Title Tribunal remains to be seen. Not all Native Title issues have been resolved by the Mabo case and the Native Title Act l993 (Cth). Resource and tourist developments, for example, cannot proceed without an efficient legal approval system. Costly and time consuming challenges could be avoided by the processes established under regional agreements.
However, there does not appear to be any good reason why Australian regional agreements should be based only on settling native title claims. There are a number of 'triggers' which should be the basis for agreements. For example, Indigenous peoples and communities throughout Australia could use regional agreements to consolidate existing programmes and resources. The bargaining trigger would be efficiency, better Aboriginal economy and skills. Another trigger for regional agreements in relation to management of land, sea, resources and conservation areas is that Indigenous peoples who live in these areas bring unique skills, knowledge and resources. The success of land-care groups can be used as an illustration of the effectiveness of local involvement and control in these areas. Australia could be a world leader in this process.
With respect to what is to be negotiated, this will depend on the specific needs and choices of Indigenous peoples and communities in a region. Regional agreements could include any (or all) of the following topics:
Settlement of native title claims. Individual claims under the Native Title Act 1993 can be negotiated through the processes under the Act. However, this could be costly and time-consuming for Aboriginal and Torres Strait Islander claimants. There will be 'winners' and 'losers' and there may be arguments between Aboriginal people over who belongs to what land. Once Native Title is determined, the Native Title holders could negotiate regional agreements under s 21(l)(a) (relinquishing Native Title) or s 21(l)(b) (relinquishing Native Title) under the Native Title Act 1993.
Alternatively, regional agreements could result in specific legislation which overrides inconsistent State and Federal laws. Native Title claimants could seek to negotiate regional settlement of claims to land and sea outside the Native Title Act 1993. In Canada, the 'exchange' of Native Title (for fee simple title and other legal rights) through federal legislation is backed up by Constitutional guarantees. This guarantee is not essential for a settlement but it is preferable, given the significance of Native Title to Aboriginal peoples. The more recent Canadian agreements have not required a surrender of all Native Title rights. Specific legislation could provide that Native Title rights could continue for land which is successfully claimed by Aboriginal peoples and granted in fee simple.
Extending Aboriginal control over land and sea use and resource decisions. Regional Agreements can be negotiated to provide for Aboriginal control of land-use and development on land that they own. Resource royalty may also be granted to them for development on this land. This can provide a financial base for further Indigenous economic initiatives in the region. There is a precedent for this under the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth). However, policies and decisions relating to areas and resources outside the ownership and control of Indigenous peoples, may affect their resources and land and sea rights. Therefore, regional agreements can create new institutions and processes which give Indigenous peoples a legal and practical right to participate in planning development control, environmental and social impact assessment., resource allocation policies and decisions for an area which is considerably larger than that which they own. This provides the opportunity for Aboriginal peoples who cannot establish Native Title to regain some control along with Native Title holders.
Management of land, sea, natural resources and wildlife. Regional agreements can be negotiated to provide for Aboriginal control or co-management over their lands and the wider region. Regional agreements extend co-management from conservation (e.g. joint management of national parks) to the management of land, resources and wildlife which is to be sustainably utilised by Indigenous and non-Indigenous people.
Pastoral properties – settling use and access rights of Aboriginal peoples. Regional agreements can be negotiated to resolve legal disputes over the co-existence of native title rights with pastoral leases. Pastoralists and the Cape York Land Council have recently issued statements that they believe that a negotiated settlement of these issues is achievable for Cape York and beneficial to all parties.
National Parks, conservation and World Heritage issues. Regional agreements ensuring Aboriginal control and co-management of national parks, World Heritage areas and environmental management processes is a recognition of Indigenous rights and of benefit to all Australians.
Participation in resource development and other economic initiatives. Regional agreements can provide the framework for Indigenous enterprises and joint ventures.
Provision of services to indigenous peoples by indigenous organisations. Existing funding and service delivery arrangements do not meet the basic needs of Aboriginal peoples and they are often denied the normal citizenship rights of other Australians to services such as water, housing health and education. Direct funding to Aboriginal organisations to provide these services could be negotiated through regional agreements.
Strengthening Aboriginal local government. Regional agreements provide an important opportunity to negotiate new powers and resources for Aboriginal local government, policing and community justice.
Whatever its form, what is crucial is that the process be driven from the local level, through regional organisations, and involves a high level of Indigenous participation which is outside normal bureaucratic and political channels.
At this point, what needs to be established is what rights and political strategies could instigate negotiation of this type between Indigenous peoples and governments in Australia. While the process must be initiated by Indigenous peoples ourselves, the federal government has a crucial role in facilitating such processes and can undertake specific actions right now.
These will involve action in terms of policy, financial arrangements, and, in some cases specific legislation. Regional agreements which are settlements of Native Title and other legal claims of Indigenous peoples should be enacted through federal legislation. Regional agreements could also be enacted through similar state or territory legislation. However, given that both federal and state or territory legislation can be overridden by subsequent legislation, in the longer term, constitutional amendment may be appropriate.
In the case of agreements involving only a smaller range of areas (e.g. specific service provision by Indigenous organisations), they may be implemented through contracts. The Indigenous communities and organisations could contract with federal, State and Territory governments and any other affected parties.
Finally, in order to constitute Indigenous regional bodies so that they can attract funding and undertake the responsibilities for negotiating and implementing agreements, it may be necessary to amend existing legislation or enact new legislation, such as local government legislation, under which such bodies can incorporate.
The benefits of regional agreements are great and they are practically achievable in Australia:
Indeed, English-speaking countries find it much easier in their constitutions to recognise already proven arrangements than to promise or create unproven new ones.
Ultimately, a regional agreement can be anything which its authors wish it to be. After its application in a diverse range of contexts in other countries it remains a most promising policy concept. They can be negotiated in Australia on the basis of native title, the needs of Indigenous peoples and existing legislative provisions without constitutional amendment. Constitutional amendment is not precluded by regional agreements and can be pursued by Indigenous peoples as an important future priority.
1. That the Australian Government endorses the option of regional agreements, where initiated by Australian Indigenous peoples, as a process for their greater recognition and empowerment through recognising land ownership and citizenship rights. Indigenous management, rights to lands, resources, seas and wildlife should be institutionally recognised in regional agreements - even where 'ownership' is not established.
2. That extinguishment of native title should not be a pre-requisite for government negotiation and approval of a regional agreement. Regional agreements should be negotiated under s 21 of the Native Title Act 1993 or independently of that Act, at the option of the Indigenous regional negotiators.
3. That the Australian Government funds trial projects in at least four regions (in Northern and Southern Australia) where the communities resolve to pursue negotiated settlements on a regional basis.
4. That the Australian Government funds a 'Research and Research Centre for Negotiating Indigenous Claims' which monitors the trial projects and provides resource and research assistance to Australian Indigenous communities and organisations. This should include facilitation and training in negotiation and conflict resolution. This should encompass conflict resolution with regions and organisations, cross-cultural conflicts and inter-governmental conflict.
5. That the Australian Government report on political, financial and legal measures which can be used to facilitate State, Territory and Local Government involvement in regional agreements.[20]
6. That federal legislation be amended or enacted to allow and promote regional Indigenous corporations with the following function:
7. Regional agreements must proceed on the basis that negotiations do not violate relevant international standards such as those articulated in the Draft Declaration on the Rights of Indigenous Peoples, ILO 169 and the Biodiversity Convention and other human rights conventions. The Federal Government should implement 'bottom line' conditions for negotiation based on such international standards.
8. Following trial projects, that Indigenous organisations be funded for the negotiation of Agreements-in-Principle, and provided with interest free loans for the finalisation of agreements.
9. That the Federal Government and Aboriginal organisations investigate the expedited regional agreement processes being developed in British Columbia, Canada.
10. That regional agreements be recognised through federal legislation Constitutional reform proposals should provide Constitutional recognition subject to clearly defined amendment processes.
11. That the Federal – and any involved State and Territory governments – enter into implementation contracts, timetables and resource allocation to implement regional agreements.
The discussion in this paper focuses on improved ways to fund the provision of citizenship services to Aboriginal and Torres Strait Islander people. These are services to which all citizens have equal rights. The structural reform proposed would ensure that the required increased capital expenditure is delivered in ways which enhance the capacity of Indigenous people to exercise their right to self determination. It would also have the very practical result of ensuring that Commonwealth-sourced funds end up providing the services for which they are intended. It will not be a simple exercise to transform funding arrangements in such a fundamental way. It will take time and it will necessarily require advanced negotiations along the route. What is proposed here – a wide-ranging review by the Commonwealth Grants Commission – is but a first step to ensuring a solid foundation for reform.
All Australian citizens can expect a relatively high standard of health care, educational opportunities, nutrition levels, appropriate housing, employment opportunities, and to have access to high quality community infrastructure including good roads, reliable and efficient public transportation, electricity and water For the majority of Australians, governments have been able to provide a wide range, and relatively high quality, of such services and infrastructure. More recently there has been an increasing involvement of the private sector in the provision of services and construction of infrastructure that were previously the primary domain of governments.
The infrastructure and services that exist today in many parts of Australia, including the capital cities, was put in place over a considerable period of time. Governments have committed large resources over many decades to construct roads, railway networks and airports, educational institutions, power and water delivery systems, health care facilities and communication systems. Public funding has supported the ongoing costs of the delivery of services to Australian citizens. Governments have recognised that matters such as poor quality water or poor quality housing and overcrowding are public health issues that require some form of government involvement. The eradication of many diseases that were quite common a century ago did not happen by accident. The increased longevity of most Australians has come about as a result of increasing living standards, better health care, improved diets, and public works programs designed to improve living conditions.
The Commonwealth, State and Territory and local governments have an played their part in improving the provision of citizenship services to Australians. It did not happen quickly and it required the commitment of financial and human resources on a scale that was beyond the resources of each individual or even many groups of individuals. The scale of the problems often required governments of different political persuasions and with responsibilities to co-operate.
At times, it was only the Commonwealth., with the revenue that it derives from income taxation, that could contemplate the commitments of expenditure that were necessary to meet the expectations of Australian citizens for improvements in their standard of living.
Many Aboriginal and Torres Strait Islander people have not benefited in any substantive way from government efforts to improve basic community infrastructure and the delivery of citizenship services. Infrastructure and services that are taken for granted in the capital cities or regional centres simply do not yet exist in many of the areas where relatively large numbers of Aboriginal and Torres Strait Islander people live.
Aboriginal and Torres Strait Islander people are experiencing a range of social and economic difficulties that cannot wait for two or three more decades for governments to act. The demographic characteristics[21] of the Aboriginal and Torres Strait Islander population will ensure that the problems will worsen considerably in the next few decades unless something is done now. If the housing and community infrastructure situation in many Indigenous communities is appalling now, what will it be like when there are twice as many people living in these communities in only a few years time?
There has been considerable concern expressed by many Aboriginal and Torres Strait Islander people about the role of the State, Territory and local governments in relation to the delivery of a range of government services and programs. Current funding arrangements for the delivery of programs and services by these governments:
My Second Annual Report provided a lengthy discussion of these problems, particularly in relation to health matters. Many of these concerns were also highlighted by the Royal Submission into Aboriginal Deaths in Custody. In Ch 27, 'The Path to Self-Determination', Commissioner Johnston was also critical of some of the mainstreaming policies of the State and Territory governments, and emphasised the important role of Aboriginal and Torres Strait Islander service delivery organisations.
The Royal Commission referred to 'the confusing and complex funding arrangements which already bedevil Aboriginal communities', and noted that there 'is a very great need for governments to get together to examine the whole complex picture of funding in the Aboriginal affairs area'.
Two recommendations were made with respect to these issues:
Recommendations 190: That the Commonwealth Government, in conjunction with the State and Territory Governments,, develop proposals for implementing a system of block grant funding of Aboriginal communities and funding of Aboriginal organisations and also implement a system whereby Aboriginal communities and organisations are provided with a minimal level of funding on a triennial basis.
Recommendations 191: That the Commonwealth Government, in conjunction with the State and Territory Governments, develop a means by which all sources of funds provided for or identified as being available to Aboriginal communities or organisations wherever possible be allocated through a single source with one set of audit and financial requirements but with the maximum devolution of power to the communities and organisations to determine the priorities for the allocation of such funds.
While both recommendations were supported by the Commonwealth, State and Territory Governments, in practice very little has actually been done to simplify the funding arrangements for communities and organisations. In many cases communities and organisations are being inadequately funded, often through ATSIC's Community Development Employment Projects scheme (CDEP), to provide services that would normally be the responsibility of another level of government.
In its initial response to Recommendation 191, the Commonwealth noted that because different levels have different responsibilities, it is inevitable that multiple sources of funding will continue to exist. It is highly unlikely that all of the funding for the provision of services to Aboriginal and Torres Strait Islander people will come from one single level of government, or one government agency. At times there is an expectation in the part of some governments that ATSIC will take on all of this responsibility. But as ATSIC has itself pointed out on numerous occasions, it is not presently funded to take on the responsibilities of other levels of government. In asserting this, ATSIC has the support of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs.[22]
ATSIC has worked to ensure that all levels of government accept that they have a responsibility for the provision of services to Aboriginal and Torres Strait Islander people. At the Council of Australian Governments meeting in December 1992, all governments agreed to the National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders.
The National Commitment provides for the negotiation of formal agreements which outline the roles and responsibilities of each level of government in the provision of services to Indigenous Australians. It is based on the position that Aboriginal and Torres Islander affairs is a shared responsibility of each level of government. ATSIC has been attempting for some time to finalise the negotiation of bilateral agreements with a number of State and Territory governments. It is telling that more than two years later and despite recognition of the urgency of the need, no agreements have been formalised, nor are close to being formalised.
Even if some bilateral agreements are formalised, it is still questionable whether they will represent a fundamental improvement in the existing financial arrangements and the nature of service delivery. In particular, it is not clear that the bilateral agreements will result in:
To the extent that there will be provision for greater Aboriginal and Torres Strait Islander control over the delivery of citizenship services in the bilateral agreements, it is likely only to be at ATSIC Commissioner level with some policy input from the ATSIC Regional Councils. To date there is little evidence that government agencies take much notice of the regional plans already prepared by Regional Councils, and ATSIC itself has identified this as a significant weakness of the regional planning processes.
The exercise in shared responsibility by way of the National Commitment shows all the signs of failure. There is no evidence that State, Territory and local governments are willing – now or in the future – to actually accept and deliver on their claimed commitment.
The Commonwealth Government has the ultimate national and international responsibility for ensuring citizenship services are available to its Indigenous citizens. The Commonwealth Government is the only government with the power and resources to ensure such a result. It must now seize the initiative and take up its responsibilities.
At the present time, many Aboriginal and Torres Strait Islander organisations receive funding from ATSIC and a range of other government bodies based on submissions prepared by these Indigenous organisations. Many of these organisations receive a wide range of grants, often for only small amounts of money, and with no certainty that the funding will continue in future years. Many organisations need at least one staff member, often more, whose only job is to prepare funding submissions, negotiate the funding arrangements and acquit the grants. Many of these organisations have taken on de facto responsibility for a relatively wide range of citizenship services. Most of these organisations are required to operate with a funding horizon of no longer than one year, making it impossible for them to plan.
As the Royal Commission into Aboriginal Deaths in Custody found, there is a need to move from this grants based approach. An alternative method of funding Aboriginal service organisations could be something like that which exists for State, Territory and local governments in their relations with the Commonwealth Government. The Commonwealth Grants commission is well placed to provide advice on structuring an alternative system of funding. I propose that it be requested to undertake such an inquiry.
The Commonwealth Grants Commission makes recommendations to the Commonwealth Government regarding the distribution of untied general revenue assistance between the States and Territories. As part of its 'fiscal equalisation' operating principle, the assessments by the Commonwealth Grants Commission take account of the special needs or disadvantages faced by Aboriginal and Torres Strait Islander people. However, the expenditure of these general purpose funds by the State and Territory governments does not necessarily meet the needs or reduce the disadvantages faced by Aboriginal and Torres Strait Islander people .
Local government is assessed in a similar way by the Local Government Grant Commissions in each State and the Northern Territory. In determining their funding recommendations for the distribution of funds between local governing bodies in each State and the Northern Territory, some of the Local Government Grants Commission take account of certain characteristics of the Aboriginal and Torres Strait Islander population in each area.
While the Commonwealth Grants Commission's primary role is to assess a significant part of the funding requirements of the State and Territory governments, at certain times it has been requested by the Commonwealth to explore other inter-governmental funding arrangements. For example, it has examined and made recommendations with respect to:
In relation to the Cocos(Keeling) Islands, the terms of reference of the first inquiry in 1986 were to identify and report on the principles, methodology and procedures for a review undertaken in 1989 of (i) the relationship to Australian levels of the services and standard of living enjoyed by the residents of the Cocos (Keeling) Islands; (ii) the measures then necessary to ensure that the services and standard of living meet Australian levels by 1994; and, noting that the Government has in mind that the standard of a comparable community in another remote Australian location might be appropriate, report at an early date on a suitable standard, having regard to the Government's broad commitment to achieve, within ten years, the raising of services and standard of living to Australian levels.
If the Commonwealth Government can make a commitment to one group of Australian citizens living in a very remote area (in this case thousands of kilometres from the mainland in the Indian Ocean) to significantly raise their living standards within ten years, why can it not do the same for its Indigenous citizens?
The proposal for a Grants Commission review of funding arrangements in regard to Aboriginal communities and organisations is not new. During the Commonwealth Grants Commission's 1993 review of the relativities for the distribution of funds between the States and Territories, the Commission received submissions from a number of Aboriginal organisations. A number of Aboriginal people appeared before the Commission in Darwin in December 1992. The Commission summarised the proposals suggested by the people and the organisations as follows:
Essentially, the Aboriginal organisations in the NT were suggesting that the objective of Commonwealth funding for Aboriginal and Torres Strait Islander programs and services should be to provide Aboriginal and Torres Strait Islander organisations with the financial capacity to provide an equitable level of services to Aboriginal and Torres Strait Islander people rather than providing this financial capacity to the State and Territory government. That is, the Commonwealth should apply the principle of fiscal equalisation in its funding relationships with Indigenous communities and organisations.
The organisations that could be funded under such arrangements may be existing Indigenous organisations, or new organisations with the authority to provide services directly, or contract for the provision of services, on a regional basis.[24] The role of the existing ATSIC Regional Councils would also need to be determined.
These matters are factors of local and regional political dynamics and, as such, the ability of the Commonwealth to influence events is very limited. The most that can be said in this ,text is that the Commonwealth should look to the issues of functionalism and flexibility as the prime criteria for organisations funded to deliver citizenship services.
It is possible that an alternative system of Commonwealth funding could encompass:
Given the complexities of the present Commonwealth, State and Territory, and local government financial relationships, and the differing circumstances of Aboriginal and Torres Strait Islander people, there is no one simple solution to the present complexities, funding inadequacies experienced by many Indigenous people. In some areas, Indigenous organisations are already responsible for the delivery of a range of citizenship services, to the extent that such services are provided at all. In other areas, particularly the larger urban areas, the mainstream government agencies are responsible for service delivery. Any changes in the existing financial arrangements will need to take account of these differences. It can be anticipated that this review will propose arrangements which are regionally-based rather than uniformly national.
A review of the type suggested above would only be the first step towards the implementation of significant reforms to the Commonwealth funding relationship with Aboriginal and Torres Strait Islander communities and organisations.
It would be important for the review to encompass all payments to the States and Territories, not just the untied general revenue assistance normally assessed by the Commonwealth Grants Commission. It would need to examine existing local government funding arrangements. In determining the level of funding that would be necessary to ensure equitable access to citizenship services, funding for infrastructure would also need to be examined by the review.
In order for such a review to be undertaken, it would require:
The terms of reference to the Commonwealth Grants Commission, the nature of the inquiry and the timing, would need to be negotiated with relevant Aboriginal and Torres trait Islander representatives.
That the Commonwealth Government affirm its commitment to establishing a direct fiscal relationship with Indigenous communities and organisations.
That the Commonwealth Government initiate:
If the Commonwealth is to achieve its objective of social justice for Aboriginal and Torres Strait Islander peoples, it must acknowledge that Indigenous social justice does not end at the seashore around Australia. Aboriginal and Torres Strait Islander peoples belong to the international community of Indigenous peoples. This means that we are entitled to enjoy the rights of Indigenous peoples now being articulated in international forums.[26]
The benchmarks set by the international community in the form of international human rights instruments., together with policy reforms in countries which provide better recognition for Indigenous rights form the world's formal and informal standards for policy in relation to Indigenous peoples. Observing these benchmarks and practices is not simply a matter of ensuring that we fulfil our international obligations and avoid international criticism, it is also an effective means of improving our own policy, approaches and making Australian policy 'best practice'.
International Indigenous work, in the form of standard-setting and networking has been going on for several years. Yet until recently Australia has not been as active in this scene as other 'first world' countries. Undoubtedly, it is Aboriginal and Torres Strait Islander peoples ourselves who have been the main losers from this relative isolation, but governments too have lost the opportunity to gain valuable insights and examine other policy approaches. In saying this I acknowledge that Indigenous Australians have ourselves not always been sufficiently active in changing the situation. Indigenous individuals, communities, and organisations must also take the initiative to bring international experience and international standards home.
Just one pertinent example concerns the protection of intellectual and cultural property rights. As Aboriginal and Torres Strait Islander peoples struggle to find appropriate to protect our knowledge about native plants in the face of pharmaceutical developments and the patenting of products, our Indigenous brothers and sisters confront the very same issue in South America, Africa Asia and elsewhere. The United Nations Working group on Indigenous Populations has commissioned a 'Study on the Protection of the Intellectual and Cultural Property of Indigenous Peoples' which .-provides several examples of ways which Indigenous peoples have found to protect such rights, and to negotiate with non-Indigenous governments and companies to retain some control over the development of products based on their traditional knowledge, and share in profits derived from such development.
Indigenous peoples throughout the world have contemporary grievances and all have suffered dispossession of territory, denigration of culture, marginalisation, assimilation, and social ills. In many countries today the lives of Indigenous people are at risk from brutal governments and brutal colonisers. if we were to dwell only on the many problems remaining, we would be immobilised by despair. What we must do instead is build on positive measures which have begun to emerge in some countries. Nobody would suggest that any country has solved Indigenous problems, but at least there are examples now appearing of general policies, specific initiatives, or unforeseen outcomes which return self-worth and decision-making to peoples previously marginalised.
The modem form of Indigenous international work began in late November 1973 when the Arctic Peoples Conference met in Copenhagen.[27] Sami (the Lapps) of the three Scandinavian countries, Inuit of Greenland and Canada, and Dene Indians from Northern Canada, assisted by the International Working Group for Indigenous Affairs (IWGIA, a private Indigenous rights watch group), met together in Denmark's parliament building. More important than any particular discussions or agreement reached was the dawning awareness there that isolated and marginalised peoples shared an international struggle against governments and resource development interests, and that they could more easily discuss their local needs with new friends and allies from far away than with glib or paternalistic authorities at home. In their home countries Indigenous peoples were experiencing the transformation of their regions and their own powerlessness in that era of 'welfare colonialism'[28] and major development projects.
In years following the Copenhagen beginnings, more large gatherings occurred elsewhere, with Australasian Indigenous peoples joining in when the World Council of :Indigenous Peoples was formed in 1975. At that event there were fears for the safety of delegates who had virtually to escape from some Latin American republics to attend. Nuu-chah-nulth Indians[29] with Winchesters guarded the perimeter of the reserve which was the conference site. Some delegates were jailed, others harassed, on their return home. That historic gathering was neither radical nor violent; it was a meeting of oppressed peoples struggling to survive and to ensure that their cultures survived. The atmosphere was often one of great pain, and the influence which became dominant was the calming and healing voice of the spiritual leader of the Six Nations (Iroquois), Oren Lyons.
The international Inuit Circumpolar Conference (ICC), founded in Alaska in 1977 as a result of the 1973 Copenhagen meeting and with some of the same persons involved, has concentrated on important local issues. Pollution from ocean shipping, offshore drilling, and onshore waste disposal threaten the maritime livelihoods of Inuit along coasts of Greenland, Canada, Alaska, and Russia, so they have shared expertise for negotiating better outcomes with governments and industry.
The experience of North American Indians and Inuit, Greenland Inuit and Sami of Northern Europe, and now the Indigenous peoples of Northern Russia (including Sami, Aleut, and Inuit) has had an even wider impact. Those peoples have succeeded in creating an international Circumpolar movement and winning much co-operation from national and sub-national (state or territory) governments to promote environmental protection and rehabilitation, Indigenous rights and self-government, social and economic projects. Until recently the whole Arctic was frozen in Cold War tension. Quite apart from the formal achievements of the new forums , there have been two notable spin-offs. One is that Northern hinterland regions in Circumpolar countries, long thought frigid deserts, are being seen more realistically as ancient homelands of peoples with living cultures as well as rights and needs to be satisfied in modem times. This has had major benefits for Indigenous peoples. The second is that governments and Indigenous peoples involved have become accustomed to talking together Multilateral practice has accelerated official and public recognition of Indigenous needs, cultures, and rights at home. Those countries are already leaders in international rights recognition, and their growing co-operation is increasing pressure to improve world Indigenous rights and Indigenous-government relations.
In recent years the focus of Aboriginal and Torres Strait Islander international work has been Geneva. For the last twelve years, Indigenous representatives have travelled there for mid-year meetings of United Nations human rights bodies, notably the Working Group on Indigenous Populations. We hear statements by governments putting the best face on their policies at home, while desperate pleas for help from some of our Indigenous and sisters highlight the relative powerlessness of outsiders.
Geneva for those weeks becomes an Indigenous ideas market. But Indigenous internationalism is not an exotic bloom found only in Switzerland in August. Rather, it is here and everywhere, all the time. Indigenous rights and national treatment of Indigenous peoples have become international concerns – as successive prime ministers have reminded or chided Australians for the past 30 years. Their words have not yet penetrated official or public awareness.
In addition, there has been a tendency to see international work in relation to Indigenous issues in a negative light, that is as little more than a stick with which Australian governments can be beaten. This is perplexing given that all Australians take it as said lat we should quickly take up any available medical advances, technology, new foods and popular music from abroad, and that to do is to improve our lives.
International contact is perhaps the most under-used of the major resources of Indigenous peoples in the world today. It is also under-valued and, even when available, little used by officialdom. This double failure is a principal reason why Australia has had so much catching up to do in social attitudes and public policy in recent years.
Undoubtedly Australia's isolation from the rest of the first world where these developments have been centred, and the high costs of travel, have been factors in our failure to participate more actively. Nonetheless, the world came to us in the early 1980s when the World Council of Indigenous Peoples held an assembly in Canberra. That single event generated much interest and many ongoing contacts.
The time has come for Australia to become a permanent member of the international Indigenous world. It is not good enough to remain passive while the health statistics of Australia's Indigenous peoples remain appalling while those of Indigenous peoples in other first world countries approach parity with national standards. We have everything to gain by sharing ideas and inspiration With Indigenous peoples abroad. However, financial resources are scarce and distances far. The pressing priority is to gather inspiration, information, and precedents from overseas experience to help develop negotiating positions, options, and policy in Australia.
International Indigenous networks are not only sharing their own problems. They are also, in effect, developing implicit world standards. Australia must be a part of that club. The larger question remains: How is Australia, as a nation, to be plugged in to these overseas networks? I would suggest that the Federal Government can initiate and support a number of processes to this end.
One way to highlight this important subject for Australians would be to give the human rights sub-committee of the Joint Committee on Foreign Affairs, Defence and Trade the reference to explore it and report. In fact, with the increasing importance of human rights in Australian policy, the Parliament should consider establishing a full parliamentary Human Rights Committee which could examine international Indigenous developments as one of its initial tasks.
Until the international relations community in Australia is brought into the picture, Indigenous internationalism will remain marginal and ignored. It would be useful to draw on some Northern hemisphere practitioner-experts, as well, and to invite New Zealand involvement. The Parliamentary committee could be asked to recommend a course of action to the government, one which ensured full Indigenous participation and co-direction of future work.
There is no adequate body specifically charged with or adequately resourced to keep Australia in touch with overseas developments. The existence of 'international' units within government (such as exist in ATSIC or the Department of Foreign Affairs) is not sufficient. To be effective, and to maintain credibility, both amongst Indigenous Australians and overseas, Australian international Indigenous work must not only be independent, but be seen to be independent.
I note that in the performance of my functions of monitoring the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples, the Human Rights and Equal Opportunity Commission Act 1986 provides that I may consult with organisations of Indigenous peoples in other countries and international organisations and agencies[30] and must have regard to relevant international human rights instruments.[31] However, given the breadth of the functions for which I am responsible, and the resources available to me, by no objective standard can it be considered that my Office is in a position to stay in touch with international developments in a comprehensive fashion, or to a degree adequate to provide the much needed information.
What is needed is a body with the independence, mandate and resources to function as a genuine 'Australian Indigenous international watch Organisation'. Its purposes would be to maintain ongoing overseas contacts, to prepare regular published reports on Indigenous rights and conditions world-wide, to have a programme of conferences in Australia and to assist Australian speakers to reach overseas events. My Office may be the appropriate body to take this on. However, to do so, it would have to receive official recognition as having this function, and be-provided with an adequate level of resources specifically directed to its international activities. Alternatively, a specific international Indigenous watch Organisation could be established with the functions I have outlined.
Academic research has been the greatest source of information about international developments, but has too often been obscure, timid, or late. What is needed is immediate material with practical political and public policy focus. This should be made widely available to Indigenous organisations, libraries and governments. (See Recommendation 5 below.)
In making this recommendation, I note that during the International Year of Indigenous People, one of the needs identified was more information about developments relating to Indigenous peoples in all countries. In fact, the General Assembly of the UN recognised the need within the United Nations system to aggregate data specific to Indigenous peoples.[32] Accordingly, the development of an international research project is being proposed as a priority activity for the International Decade of the World's Indigenous Peoples. This international recognition of the importance of conducting focussed research and making such research available to the peoples and governments who need it, lends weight to the proposal that such a project be established in this country.
There are some studies which need to be undertaken urgently and their results published. For instance, the concerns expressed by politicians of all parties for Aboriginal and Torres Strait Islander health and community conditions encourage us to look at Norway. Since World War II, the Norwegian government has brought all Northerners, including impoverished Sami settlements, a level of public services and personal conditions on its isolated and mountainous Arctic coast equal to the best in the world.
Another example concerns Indigenous coastal and sea matters. In the past two years Torres Strait Islander leaders have forged links with Canadian and Greenland Inuit, Norwegian Sami and Pacific Island nation leaders and found much common interest in marine and sea resource management issues. The Torres Strait Marine Strategy has attracted considerable interest in other countries.
The Australian Government and non-government organisations have actively participated in international agreements on coastal peoples' needs, for example at the Rio Earth Summit, and there have been a host of Australian reports on coastal matters,, without much practical effect to date. A pilot project in international Indigenous co-operation among marine peoples would be a very fruitful exercise.
Institutions like the Australian National University North Australia Research Unit which have developed valuable experience with international visitor programmes, comparative work, and accessible publications in Indigenous policy and politics should be encouraged to enlarge and continue such work. Home rule structures for the Inuit island of Greenland, Canadian Indigenous negotiation of regional agreements and national constitutional proposals, American Indian tribal courts, and high-quality Scandinavian socioeconomic outcomes in remote areas for Sami and non-Sami are significant precedents. World-wide Indigenous policy is a market for optimism – one which deserves our attention. A priority list is needed of urgently required studies, and a project established for getting them done.[33]
In the late 20th century, it is simply nonsensical for Australia not to be fully abreast of international developments in relation to human rights. It is also astonishing, given that we take it as said that we should have access to, if not be leaders in, whatever are the world's latest technological and market developments. Why then do we close our doors to the world on Indigenous policy developments?
While it is important to stress the positive aspects of international connections, Australian governments are not blind to their negative possibilities. International standards may well offer far more than 'the big stick', but by continuing to turn our back on international developments, we increase the likelihood that this is how they will be used. Australian governments should be fully aware that the world is watching their actions in relation to Indigenous peoples. The indulgence afforded by the world at the 1982 Commonwealth Games when it turned a blind eye to Indigenous protest WM not be repeated at the 2000 Olympics. In the past 15 years human rights, and in particular Indigenous rights have received unprecedented attention, and been subject to documentary, literature and public discussion, both official and unofficial throughout the world.
In addition, since Australia has ratified key international human rights instruments such as the International Covenant on Civil and Political Rights,, and notably the First Optional Protocol to that Covenant, complaint mechanisms are now available for Indigenous people to approach the United Nations directly where they believe violations of such instruments are occurring. Australia must furnish regular reports to the relevant UN Committees on its implementation of treaty obligations and these Committees can both conduct investigations and publish reports on our-performance.
It is precisely because Australia is an affluent., progressive, Western country in the first world club that so much is expected of it As a country created by European imperialism, settlement, and dispossession of non-European peoples, we, like South Africa, Canada, USA, and the Latin American republics, will always be under especially harsh scrutiny, not only by non-European countries but by the European heartland itself. We are expected to set the highest standards in company with other first world countries with Indigenous minorities – New Zealand, USA, Canada, Denmark, Norway, Sweden, and Finland. For that reason the comparable progress of those countries should be of particular concern to us.
In the main, however, Indigenous internationalism could be and should be a good news story for Indigenous and non-Indigenous Australians. Confident and outward-looking, it can bring practical benefits while also signalling to the world that Australia's racist past is, truly, past. Our main objective must be to move from an Indigenous internationalism which is episodic and events-centred, a now-and-then gala function, to one which is a continuous process and which is both a habit of mind and context for policy.
1. The Parliament should establish a Human Rights Committee of members with relevant expertise and such a committee should conduct a public inquiry into the benefits to Aboriginal and Torres Strait Islander peoples and the wider Australian community of international Indigenous awareness and co-operation; and how to involve Australia and its citizens., especially Aboriginal and Torres Strait Islander people, in this burgeoning field of international relations. Subject to the establishment of a Human Rights Committee, the Joint Standing Committee on Foreign Affairs, Defence and Trade should conduct such an inquiry.
2. That the Federal Government provide the mandate and resources for an independent Aboriginal international Indigenous watch Organisation. This could either take place through an expansion of the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, or could be established as an independent specialist NGO.
3. A workshop on Indigenous marine policy issues and needs bringing Torres Strait Islander and Aboriginal representatives together with such overseas peoples as Coastal Sami, Inuit, and Indian First Nations of Canada's Pacific coast, and South Pacific peoples, should be held. The workshop would also consider the usefulness and feasibility of an ongoing international Indigenous marine network of peoples and organisations.
4. ATSIC, the Council for Aboriginal Reconciliation, and the Aboriginal and Torres Strait Islander Social Justice Commissioner should consult with Indigenous organisations to develop a priority list of urgently required international comparative studies on issues identified in this report and elsewhere including macro- and micro-constitutional reform; regional agreements; inter-governmental relations internal to nation-states in respect of Indigenous policy and programmes; self-government; land and sea rights; and Indigenous management of territory and resources.
5. In respect of recommendation number 4 above, a fund should be established under the joint management of ATSIC, the Council for Aboriginal Reconciliation, and the Aboriginal and Torres Strait Islander Social justice Commissioner for the carrying out of international comparative research on these and other urgent Indigenous policy issues.
[1] (1996) 1 (1) AILR p 67.
[2] Section 46C(1) Human Rights and Equal Opportunity Commission Legislative Amendment Act (No 2) No 180 1992
[3] For discussion, Article 27 of the International Convention on Civil and Political Rights, 1996. The most full discussion of the implications of this Article in respect of Indigenous peoples has been provided by the 1984 report of the Norwegian Sami [Lapp] Rights Committee. (English translation of the key chapter and of the summary of the whole report have been made by the Norwegian government.)
[4] For example, The Law of the Land, by Henry Reynolds, Penguin, 1987.
[5] See Ch 3, Constitutional Reform.
[6] The proceedings are available free of charge in two small volumes: The Position of Indigenous Peoples in National Constitutions: Conference Report, and 7he Position of Indigenous Peoples in National Constitutions: Speeches from the Conference, June 4-5, 1993, Council for Aboriginal Reconciliation, Canberra, and Constitutional Centenary Foundation, Melbourne.
[7] A useful and up to date survey of the Indigenous situation in Scandinavia, Greenland, Alaska, Northern Canada, and Russia is Polar Peoples: Self-determination and Development, edited by Minority Rights Group, Minority Rights Publications, London, 1994.
[8] P Jull; An Aboriginal Northern Territory: Creating Canada's Nunavut, Discussion Paper No 9, Australian National University North Australia Research Unit, Darwin, September, 1992.
[9] This 1994 publication is available free of charge from its publisher, the Constitutional Centenary Foundation in Melbourne.
[10] A useful Canadian government study foresaw just such outcomes: Understanding referenda: six histories, Federal-Provincial Relations Office & Canadian Unity Information Office, Ottawa, 1978.
[11] A selected list of negotiated agreements in Australia is provided in accompanying Vol 2.
[12] Examples and analysis of overseas agreements are provided in Vol 2.
[13] A poignant view of the claims settlement and its impacts is Tom Berger's Village Joumey: the Report of the Alaska Native Review Commission, Hill & Wang, New York, 1985. A recent situation report is Fae Korsmo's 'The Alaska Natives' in Polar Peoples edited by the Minority Rights Group, London, 1994, pp 81-104.
[14] Mr. Johansen was himself a leader of the Indigenous home rule movement and MP in the Danish parliament before 1979, taking over the fisheries and development portfolios in Greenland cabinets before becoming premier. Mr. Johansen's paper for the Cairns workshop is a useful summary and available from the Danish embassy: 'Presentation at the Workshop on Regional Agreements in Northern Australia: Aboriginal Strategies for Land Use, Management, Resource and Environmental Issues', July 27,1994. For another current view of Greenland, see M. Nuttall's 'Greenland: Emergence of an Inuit Homeland', in Polar Peoples, edited by Minority Rights Group, London, 1994, pp 1-28.
[15] A general survey of the complete Canadian Indigenous regional scene is Ken Coates' Aboriginal Land Claims in Canada: A Regional Perspective, Copp Clark Pitman, Toronto, 1992.
[16] See P Jull, An Aboriginal Northern Territory.- Creating Canada's Nunavut, Discussion Paper No 9, Australian National University North Australia Research Unit, Darwin, 1992; and T Fenge, Political Development and Environmental Management in Northern Canada: The Case of the Nunavut Agreement, Discussion Paper No 20, October 1993, in the same series. The authors were both Nunavut project staff.
[17]John Amagoalik, 'Canada's Nunavut: an Indigenous northern territory', pp 23-25; and Terry Fenge 'The Nunavut Agreement: the environment, land and sea use and Indigenous rights', pp 31-37, in Jull P et al. (eds), Surviving Columbus: Indigenous Peoples, Political Reform and Environmental Management in North Australia, Australian National University North Australia Research Unit, Darwin.
[18] Treaty Negotiations in BC, Information hand-out from Ministry of Aboriginal Affairs, Victoria, BC, 1994.
[19] 'British Columbia', A Sea Change: Overseas Indigenous-Government Relations in the Coastal Zone, Resource Assessment Commission, Commonwealth of Australia, Canberra, September 1993, pp 37-57
[20] See Ch 5, Funding Reform.
[21] For instance, compare the fact that about 40% of Australia's Indigenous population is under 15 years of age with the fact that about 22% of the non-Indigenous population is under 15 (ABS 1991 data).
[22] For example, see House of Representatives standing Committee on Aboriginal and Torres Strait Islander Affairs, Review of Auditor-General's Audit Report No 36, 1992-93: Aboriginal and Torres Strait Islander Commission: Community Infrastructure and Audit Report No 1 1993-94: Vol 3, ss 1.13-1-39, Report Ministerial Portfolios, Budget Sitting 1993: Aboriginal and Torres Strait Islander Commission: Community Development Employment Projects and Other Matters and Audit Report No 27, 1993-94, ss 16.19-16-24, Report On Ministerial Portfolios, Autumn Sittings 1994, Aboriginal and Torres Strait Islander Commission: Community Development Employment Projects, AGPS, 1994, p 3.
[23] Commonwealth Grants Commission, 1993, Report on General Revenue Grant Relativities.
[24] The issue of appropriate organisations is well-discussed in Anangu Pitjantjajara, Mayatja Manta Nyangaku Kutju: Local Government for Aboriginal Communities, Pitjantjajara Council, 1994.
[25] Commonwealth Grants Commission, 1993, Report on General Revenue Grant Relativities, Vol 1, pp 63-68
[26] For the relevant international instruments, see accompanying Vol 3.
[27] An account of that conference by Inge Kleivan is now available, 'The Arctic Peoples' Conference in Copenhagen, November 22-25,1973', Études Inuit Studies, Vol 16 (1-2),1992, pp227-236.
[28] Jeremy Beckett has also used this term for the Australian situation in his classic study, Torres Strait Islanders: custom and colonialism, Cambridge University Press, 1987.
[29] Captain Cook's 'Nootka', among whom his final expedition sojourned on the West Coast of Vancouver Island.
[30]Sections 46C(3)(b) and 46C(3)(c).
[31] Sections 46C(4)(a) and 46C(4)(b).
[32] General Assembly resolution 48/133 of 21 December 1993.
[33] See also the paper, Comparative Studies: Their Use for Indigenous Social Justice in accompanying Vol 3.
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