Editors --- "Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures - Digest" [1996] AUIndigLawRpr 27; (1996) 1(1) Australian Indigenous Law Reporter 76

Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures

Aboriginal and Torres Strait Islander Commission

Canberra: Australian Government Publishing Service, 1995

At the beginning of 1994, the Acting Prime Minister of Australia sought the formal views of the Aboriginal and Torres Strait Islander Commission on further measures that the Australian Government should consider to address the dispossession of Aboriginal and Torres Strait Islander peoples, as part of the Government's response to the 1992 Hight Court decision on native title.

The Commission appointed an Advisory Committee under section 13 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) to oversee the Commission's consultations with the wider indigenous community and the development of the Commission's report.

The report was endorsed by the Commission at its thirty-third meeting held in Canberra on 6-9 February 1995. The "Overview of the Main Report" is reproduced below.

Overview of the Main Report

Introduction

ATSIC's report responds to the Government's expressed desire for constructive and realistic proposals to increase the participation of indigenous peoples in Australia's economic life, to safeguard and develop indigenous cultures, to help develop a positive community consensus and to contribute to a lasting reconciliation. In so doing it focuses on institutional and structural change.

The report forms part of the Commonwealth Government's three policy responses to the High Court's decision in Mabo v Queensland (No 2) that a form of native title exists under the common law:

* The Commonwealth Parliament has passed the Native Title Act 1993 offering the protection of statute law to native title and arrangements for future dealings in native title land.

* The Government has introduced legislation to establish a National Aboriginal and Torres Strait Islander Land Fund and an Indigenous Land Corporation to acquire and manage land for dispossessed indigenous groups.

* The Government has committed itself to further social justice measures for Aboriginal and Torres Strait Islander people, the subject of this report, in acknowledgment of continuing disadvantage and dispossession.

Central to the development of this report has been the process of consultation and the opportunity for broad participation by the Aboriginal and Torres Strait Islander community. Consultative meetings were jointly sponsored by ATSIC and CAR during July and August 1994 in each of ATSIC's 17 zonal areas. An additional round of meetings in each zone were conducted during September and October.

Our report comes at a time when the political, social and legal landscape has changed following the High Court's decision on native title.

Recognition of the continued existence of native title -- though likely to be of direct benefit to only a small proportion of Aboriginal and Torres Strait Islander people -- has opened the way to broader appreciation and acceptance of the rights of indigenous Australians.

The Wider Context

The proposals are made within the context of the Commonwealth Government's Social Justice Strategy, the central objective of which is the development of a fairer, more prosperous and just society for all Australians. This strategy has particular relevance to Australia's indigenous peoples, who remain the most disadvantaged group within Australian society.

The proposals also come in a context of substantial reassessment and review of existing public strategies, policies and programs in indigenous affairs.

In addition to the changes flowing from the recognition of native title there are six key areas of activity:

* the Government's Access and Equity Strategy, particularly as it relates to indigenous peoples, has come under intense scrutiny following a Parliamentary review and an evaluation of the Strategy;

* the action taken to implement the Government's response to the recommendations of the Royal Commission into Aboriginal Deaths in Custody is the subject of annual reports, which in turn are scrutinised by the Parliament and by the Social Justice Commissioner;

* major reviews have been completed of policies and programs in the key areas of Aboriginal and Torres Strait Islander employment, education and health;

* the Council for Aboriginal Reconciliation is reporting to Government on the future path for the reconciliation processes (and is also reporting separately on further social justice measures);

* the approaching Centenary of Federation is bringing with it a renewed focus on the place of indigenous peoples in modern Australian society; and

* the International Decade of the World's Indigenous People is commencing with a focus on the international recognition of indigenous rights.

Rights and Entitlements

The disadvantaged and unequal position of indigenous [sic] has been comprehensively documented by the Royal Commission into Aboriginal Deaths in Custody. Our report does not attempt to cover the same ground. Rather the emphasis has been on listening to Aboriginal and Torres Strait islander people and building new directions for the future.

The evidence of continuing disadvantage and shortcomings in the actions of governments is stark and pervasive. It is experienced in the daily lives of indigenous people -- in sub-standard housing, in essential services that are poor or non-existent, in bad health and premature death, in the absence of opportunity and the loss of hope and spirit.

This continuing disadvantage is a manifestation of the impact of two centuries of dispossession, dispersal and discrimination, involving the denial of fundamental rights of Aboriginal and Torres Strait Islander people.

Recognition of fundamental rights and entitlements of indigenous peoples lies at the heart of this Report. The ability to exercise and enjoy those rights -- the normal citizenship or equality rights that indigenous peoples share with all Australians; and distinctive rights we have as indigenous peoples -- is critical to the achievement of social justice for Aboriginal and Torres Strait Islander people.

Citizenship and Equality Rights

Ensuring that indigenous Australians enjoy their full rights as citizens has been a shared responsibility of the Commonwealth and State, Territory and local Governments. For key areas such as health, education, housing and essential service delivery, and the provision of basic community infrastructure, Aboriginal and Torres Strait Islander people are largely dependent on programs and services which fall within the jurisdictions of State, Territory and local Governments.

It remains the case that State, Territory and Local Governments often fail to ensure that Aboriginal and Torres Strait Islander people enjoy reasonable access to, or equitable treatment in, the development and delivery of their programs. Too often, Commonwealth programs, particularly those delivered by or through ATSIC, have to address the consequences of continuing failure.

The options are clear -- either new and additional resources must be identified and applied to fill the gaps or a greater share of existing mainstream resources must be directed to meeting these problems. The Commonwealth has had the constitutional authority since the 1967 referendum to take a dominant role.

In the absence of a more enlightened approach by State, Territory and local Government, the Commonwealth must take more radical steps to bring national social justice policy objectives to bear. Key issues to be resolved are:

* the enormous level of unmet need in Aboriginal and Torres Strait Islander communities for basic service delivery such as housing and infrastructure which results from a failure of Governments responsible for delivering those services;

* ensuring access and equity for Aboriginal and Torres Strait Islander people who are largely reliant on mainstream service delivery from all levels of Government; and

* ensuring an adequate and equitable range of service delivery in respect of remote and predominantly Aboriginal and Torres Strait Islander communities.

Indigenous Rights

Recognition of and support for indigenous self-determination is fundamental to acceptance of the inherent collective rights of indigenous peoples.

There is no right more fundamental for indigenous people than that of self determination. It is central to addressing their general disadvantage and oppressed condition.

It is central to a social justice package that policies, institutional structures and legislation should operate to empower indigenous peoples and provide for collective rights of indigenous peoples.

It will be an ongoing task to work out practical frameworks for defining and exercising indigenous rights, but broad areas can be clearly identified as a focus for further work.

* Autonomy Rights, which focus upon the right of indigenous peoples to determine the way in which they live and control their social, economic and political systems;

* Identity Rights, which relate to the right to exist as distinct peoples with distinct cultures; and

* Territory and Resource Rights, which encompass such things as land entitlements, the right to resources of that land, and the use of those resources.

Self determination should not be constrained to operate within the existing legal and political structures, but rather those structures must be accommodated to take account of indigenous rights. This is essential to securing empowerment of indigenous peoples.

The Proposals

The recommendations put forward in this report cover an extraordinarily wide spectrum. Many will require considerable detailed development and negotiation before they can be put into place.

There will have to be ongoing processes of consultation with the Aboriginal and Torres Strait Islander communities to ensure that what is done will indeed meet indigenous needs and aspirations. And there must be adequate mechanisms for managing the implementation processes and ensuring that the impetus for reform is sustained.

The proposals fall into six major themes:

* The rights of Aboriginal and Torres Strait Islander peoples as citizens;

* Recognition of their special status and rights as indigenous Australians and the achievement of greater self determination for Aboriginal and Torres Strait Islander peoples;

* Ensuring that indigenous Australians are able to exercise their rights and share equitably in the provision of Government programs and services;

* The protection of the cultural integrity and heritage of indigenous Australians;

* Measures to increase Aboriginal and Torres Strait Islander participation in Australia's economic life.

As a starting point the report recommends that Governments agree to and legislate a broad set of Principles for Indigenous Social Justice and the Development of Relations between the Commonwealth Government and Aboriginal and Torres Strait Islander peoples.

Adoption of this charter would underpin the further development and implementation of the specific proposals put forward in this report, guide all future relationships between the Commonwealth and indigenous peoples, and be capable of applying to the roles and responsibilities of other spheres of government as well.

Other proposals encompass:

* major institutional and structural change, including Constitutional reform and recognition, regional self-government and regional agreements, and the negotiation of a Treaty or comparable document;

* overcoming inequities and inefficiencies in service delivery, including the achievement of genuine access and equity in Commonwealth mainstream programs and revised Commonwealth-State funding arrangements;

* protection of rights through such means as recognition of customary laws, protection of intellectual and cultural property, and recognition of indigenous rights; and

* practical measures to enhance opportunities for economic development and to achieve other desirable objectives such as improved public awareness of indigenous cultures and indigenous issues.

Particular recommendations are made in respect of the following identified areas:

Rights

* the reinforcement of access and equity provisions through legislation to ensure indigenous people can better access their citizenship entitlements;

* an increased commitment to supporting international instruments which reinforce indigenous rights; and

* support for measures to define, recognise and extend indigenous rights including new initiatives in areas such as communal title and assertion of coextensive rights.

Recognition and Empowerment

* promotion and advancement of the constitutional reform agenda;

* indigenous representation in Parliament with interim arrangements for speaking rights by the ATSIC Chairperson;

* processes to start work on compensation issues;

* promotion of regional agreements as a means of settling social justice issues on a regional basis commencing with pilot studies;

* recognition of a self government option for indigenous people within the framework of self determination;

* support for initial work to develop a framework for a treaty and negotiation arrangements;

* legislative recognition of the Aboriginal and Torres Strait Islander flags; and

* increased support for Public Awareness initiatives.

Citizenship Entitlements

* reforms in Commonwealth State funding arrangements to make the States more accountable for general revenue assistance and to provide for an increased emphasis on Specific Purpose Payments;

* implementation of recommendations relating to major reviews of the Aboriginal Education Policy (AEP), the National Aboriginal Health Strategy (NAHS), the Aboriginal Economic Development Policy (AEDP) and the Royal Commission into Aboriginal Deaths in Custody (RCIADIC);

* a proposal for a national Aboriginal and Torres Strait Islander Housing and Infrastructure program.

Cultural Integrity and Heritage Protection

* legislative reforms to strengthen heritage protection legislation and protect indigenous rights to cultural property;

* providing for greater involvement in environmental decision making;

* implementing the report of the Law Reform Commission on Aboriginal customary law; and

* support for extension of language programs and broadcasting initiatives.

Economic Development

* fostering closer links with industry;

* accessing Community Development Employment Projects (CDEP) Scheme as an entitlement and removing anomalies;

* implementation of business training proposals of AEDP;

* fostering regional economic development through inclusive involvement of Regional Councils; and

* further development of strategic business opportunities and resources for a stake in industry.

Conclusion

The Australian nation is reaching a defining period in its history. As we approach and begin a new
millennium, Australia will observe the centenary of its federation and address the basis of its nationhood. These developments, together with the hosting of an historic Olympics, will place Australia in the spotlight of world attention.

If it is seen that national events are not inclusive of all Australians, if the special place of indigenous peoples remains unrecognised and if there are still major obstacles to the exercise of the rights and entitlements that all Australians should be able to enjoy, the nation will be judged accordingly, and harshly.

The Commonwealth Government, with its special responsibility for indigenous people, should make a commitment to effective implementation of all the elements of the package by 2001, the target set for reconciliation between indigenous and non-indigenous Australians.