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Australian Journal of Human Rights |
Peter Grose[1]
Following Wik Peoples v the State of Queensland; Thayorre People v the State of Queensland,[2] Queensland has, of all the states, striven most vigorously for extinguishment of native title rights where these may presently co-exist with pastoral leases. Less well known to the Queensland and Australian public, concurrently the same Queensland state government continues with a program initiated by the previous Goss government under the title, "Alternative Governing Structures Program" which has as its rationale the empowerment of indigenous communities in Queensland.[3]
The underlying thesis of this article points to the necessity of a re-examination of the current political, and by extension the legal, structures of contemporary Australia in the search for redress of the continued denial of the recognition and accommodation of the rights of indigenous peoples of this land, those rights arising inherently from the fact of indigenity.[4] The thesis proceeds on the premise that genocide is not confined to a physical dimension but embraces also cultural annihilation, achieved or attempted.[5] Specifically attention will be given to the findings of reports preceding the initiation of the State of Queensland's Alternative Governing Structures Program and the response to date (1997) of Queensland legislative reform to advance that program.
With the fall of the Goss Labor government in Queensland in early 1996, all manner of questions arose as to the fate of previous government programs and initiatives. One such program which was not much in the mainstream news was the Alternative Governing Initiatives Program (AGIP). A prior Labor Minister, Anne Warner, heading the Queensland Department of Family Services and Aboriginal and Islander Affairs had given approval for a "bottom-up" approach in supporting the encouragement of more appropriate models for the governance of Aboriginal communities.[6] In light of the dismal "successes" recorded not only in Queensland but nationally throughout Australia in the implementation of imposed colonial and post-colonial regimes[7] on indigenous peoples, this fresh approach was an acknowledgment that more organic models should ultimately be accommodated within the State's legislative framework.
As matters now stand current Queensland government policy continues to support the Alternative Governing Initiatives Program[8] although it has reverted to an earlier name, Alternative Governing Structures Program (AGSP).[9] The essence of AGSP is "to facilitate greater self-determination for Aboriginal and Torres Strait Islander communities in Queensland."[10] The purpose of the policy is to advance community empowerment with the fundamental realisation that the communities are diverse in their constitution and specific aspirations.[11] The parameters in which self-determination and empowerment are to function currently arise from political sources, as Queensland has as yet to develop a jurisprudence which supports such issues.[12] Rather legal monism remains the orthodoxy, grounded in the constitutional theory of Albert Venn Dicey's rule of law that all, irrespective of station, are subject to the same law.
Before identifying those communities which may currently qualify to fall within AGSP, a brief outline is offered of the relevant Queensland legislative history of indigenous affairs.
An overview of the policies from their inception to present times of Queensland governments and the accompanying or resulting legislation in regard to indigenous affairs[13] reveals that indigenous rights have been viewed as ranging between non-existent to something very much less than even those attenuated rights identified by Marshall CJ in Cherokee Nation v State of Georgia[14] where he described the status of Native Indian peoples as comprising "domestic dependent nations".[15]
Queensland as a separate jurisdiction came into existence following the issue of letters patent on the 6th June 1859.[16] Queensland colonial practice towards indigenous peoples did not differ in kind from that of New South Wales or the other Australian colonies.[17] The stark reality was that there was no effective policy or administration in place to prevent indigenous genocide - physical or cultural.
By the end of the nineteenth century, Queensland had officially adopted a policy marked by the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld). This legislation set a new standard for the control rather than the protection of Aboriginal people. Implementation resulted in the creation of "reserves"[18] which could well be referred to as the equivalent of concentration camps,[19] the term "inmates" being used in regard to the peoples of Aboriginal reserves and Aboriginal missions.[20]
Inklings of the next phase of Queensland Aboriginal affairs government policy, that of assimilation,[21] may be noted as arising through the criteria being met for exemption status from classification of being Aboriginal.[22] Nevertheless, the Aboriginals Preservation and Protection Act of 1939 (Qld) continued tight regulatory control of the lives of Aboriginal people in Queensland, the policy transition to assimilation in this state proving a gradual process. The premise on which assimilation would be pursued was that Aborigines would eventually progress towards "civilisation" and that this would be promoted by emphasis on western values, particularly, individualism.[23]
By the 1960s and 1970s, Queensland legislation passed in regard to Aboriginal affairs was premised essentially on assimilationist objectives.[24] Until the latter part of the 1970s the larger Aboriginal communities in Queensland were located on areas designated as Aboriginal reserves.[25] Under the Local Government (Aboriginal Lands) Act 1978 (Qld), the previous reserves of Aurukun and Mornington Island were established as Aboriginal shire councils.[26] The Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld) made provision for the future creation of "deeds of grant in trust" (DOGIT) communities, vesting freehold title, subject to restrictions,[27] in the Aboriginal and Islander community councils as trustees for their respective communities.[28] Such enactment ignored cultural factors that traditional owners were unlikely to accept control thus passing to "democratically" elected community councils which were alien to indigenous social structures. Of significance are such provisions of this DOGIT legislation serving as a trigger on just such a point in Mabo v Queensland (No.1)[29] and Mabo v Queensland (No.2)[30]. Eddie Koiki Mabo was to emerge as the highest profile protagonist through his dogged resistance to such Queensland state legislation. From his cultural perception, DOGIT legislation, by passing control to an indigenous council, usurped his inherent indigenous rights of exercising traditional control over the tenure of property for which he, as head of his family, was responsible.
Following relevant legislation was the Community Services (Aborigines) Act 1984 (Qld) whereby, with the establishment of incorporated Aboriginal local government councils, the mechanism was provided for DOGIT status to be granted to Aboriginal communities. By the 1980s Queensland government policies had shifted in rhetoric to support for policies of self-determination and proclaiming the making of "full provision for preservation of cultural heritage and identity".[31] Nevertheless, the Bjelke-Petersen Government could also simultaneously state:
The overall goal is the integration of Aborigines and Islanders into the broad multi-cultural society of Queensland and Australia. Only in this way is opportunity for individual independence already enjoyed by many thousands of Aboriginal and Islander Queenslanders, permanently guaranteed to all citizens. [32]
Hence the Queensland government view on self-determination was set within restricted parameters. One example of this was the view the Queensland government took in relation to the holding of large areas of land by Aboriginal groups. Its opposition to the Aboriginal Land Fund purchasing a part of the Archer River region for traditional ownership finished up in the High Court of Australia.33 The same Queensland government would pass the Queensland Coast Islands Declaratory Act (1985) in an attempt to quash any legal claims that Meriam people of the Torres Strait might assert to native title rights.[34] Accommodation of culturally sensitive indigenous communitarian issues was clearly not even within the government's contemplation of becoming part of its agenda.
The Goss Labor government succeeded the Bjelke-Petersen government in December 1989. Despite promises of substantial legislative overhaul for the betterment of indigenous Queenslanders, the new government in the process of effecting the Aboriginal Land Act 1991, incurred the contempt of a large section of Queensland's Aboriginal population. The truncated consultative process to help determine indigenous aspirations for land claims was conducted over a period of three weeks.[35] The resulting legislation provides for a gazettal process whereby vacant Crown land and national parks may be made available for claim, subject to restrictions.[36] The preamble to the Act gives, inter alia, recitals as to prior occupancy and the special relationship between Aboriginal people and concludes:
It is, therefore the intention of the Parliament to make provision, by the special measures enacted by this Act, for the adequate and appropriate recognition of the interests and responsibilities of Aboriginal people in relation to land and thereby to foster the capacity for self-development, and the self-reliance and cultural integrity, of the Aboriginal people of Queensland.
The term "self-determination" is not used nor is there hint of recognition of the more contentious issue of indigenous sovereignty.
In no way can the legislation be construed as granting land rights in the way that the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) did for the traditional owners in the Northern Territory. Neither can the Aboriginal Land Act 1991 (Qld) be seen as holding out promise of the granting of land rights per se, although it does provide a mechanism for inalienable freehold title to land held under either DOGIT status or under Aboriginal shire lease, as for Aurukun and Mornington.[37]
The current 31 DOGIT Aboriginal and Torres Strait Islander communities,38 as well as the communities of Mornington Island and Aurukun, governed under legislative local government structures fall within the parameters of AGSP. Also for possible inclusion would be communities which at present have no community council, and urban or rural communities, whose needs focus on service delivery and cultural integrity.
The number of indigenous peoples in the distinct 14 Aboriginal communities and 17 Torres Strait Islander approximates 21,000.[39] This represents about one-third of the Aboriginal population of Queensland.[40] Hence as a percentage of the total population of Queensland, these indigenous communities which come under the aegis of the Aboriginal Co-ordinating Council[41] appear minuscule. The Australian majoritarian system is based on Benthamic principles and adherence to the doctrine of the rule of law. This is not designed to accommodate legal pluralism, and hence the very concept of alternative governing structures may be viewed as an intrepid experiment. For indigenous rights advocates such as Barbara Miller,42 who has articulated concerns over the strictures in Queensland against local indigenous control, such a move in principle is to be welcomed. For high profile advocates of the maintenance of the status quo such as Hugh Morgan,[43] a redistribution of power and control is perceived as fraught with unknown dangers.
The political climate in Queensland has remained unsettled as to the issues of recognition of indigenous rights and subsequently the law has reflected this. In reference to the inappro-priateness of the Community Services (Aborigines) Act 1984 (Qld), Commissioner Wyvill in the 1991 Queensland Regional Aboriginal Deaths in Custody Report, stated:
While self-management is central to the rhetoric of current government policy, present political and administrative structures have done little to facilitate genuine change. The local government structure, imposed by the state government without due consideration or consultation with the community, is complex, unwieldy and fails to reflect the realities of authority and decision making structures and social organisation in contemporary Aboriginal societies.[44]
In a liberal democracy such as Australia, sufficient dissemination of critical insights of this nature may eventually mould new perceptions. A very large literature exists documenting the all pervasive and institutionalised racism which has been the hallmark of the history of the last two centuries of this continent.
What follows is an examination and comment upon three catalytic reports which the Queensland government cites in its Alternative Governing Structures Program. Program Description and Funding Guidelines: A Process for Planning Community Decision-Making.[45]
The same year that the Goss government introduced the Aboriginal Land Act 1991, saw the release of the Royal Commission into Aboriginal Deaths in Custody National Report.[46] Two years later the Goss Government was to initiate the AGSP. By May 1996, under the Borbidge government the office of Aboriginal and Torres Strait Islander Affairs (OATSIA) within the Queensland Department of Families, Youth and Community Care issued its program description and funding guidelines for AGSP.47 The acknowledgment for the need of the program is premised on the recognition that: "Aboriginal and Torres Strait Islander communities in Queensland are facing the legacy of past dispossession, dispersal and disadvantage."[48] Recent government reports are cited as identifying fundamental problems with the current structures in place for governing indigenous communities. The three specific reports cited are the Queensland Parliamentary Committee of Public Accounts Financial Administration of Aboriginal and Island Councils Report 2: Effectiveness of Councils, Support for Councils, Training,[49] the Queensland Legislation Review Committee (LRC) Final Report[50] and the Royal Commission into Aboriginal Deaths in Custody National Report.51
Established in 1987 largely as the result of the agitation caused by the Committee to Defend Black Rights (CDBR),[52] the final published output of the Royal Commission was 110 volumes. The National Report of 1991 contained 339 recommendations. The overarching message, however, is the requirement of setting up the necessary support structures to advance indigenous self-determination. This term has, understandably, a variety of possible interpretations. The concept has been given the broad coverage by the Commission to include "the gaining by Aboriginal people of control over the decision-making processes affecting themselves, and gaining the power to make the ultimate decisions wherever possible."[53] A former federal Department of Aboriginal Affairs identified the essence of self-determination as "a devolution of political and economic power to Aboriginal communities."[54] The premise of non-Aboriginal views is that Aboriginal rights, should they materialise, will be via bestowal. This premise is so fundamental that the alternative of rights arising from an inherent indigenous source has not yet penetrated the psyche of the general Australian population. The contemporary Australian political and legal system in similar fashion has as yet to make accommodation for the recognition and ultimately the entrenchment of indigenous rights as arising inherently. Some may interpret such recalcitrance as the legacy of racial superiority. RCIADIC records the views of the House of Representatives Standing Committee on Aboriginal Affairs (1990) as to the parameters of self-determination:
The Committee defined self-determination in terms of Aboriginal control over the decision-making process as well as control over the ultimate decision about a wide range of matters including political status, and economic, social and cultural development. It means Aboriginal people having the resources and capacity to control the future of their own communities within the legal structure common to all Australians.[55]
Such views do not suggest that legal pluralism is being considered as a reform item. One is left to ponder what room there is for indigenous self-determination when it is already determined that the alien law is the law.[56] From the point of view of the dominant culture it is imperative that the dominant law apply to all. Indigenous self-determination must prove itself ductile enough that its cultures conform to the contemporary Australian legal system. To date the evidence from the empirical data of the impact of this system does not appear very encouraging.[57]
Bearing in mind that the Royal Commission was charged with the requirement of studying and reporting "upon the underlying social, cultural and legal issues behind the deaths in custody"[58] the resulting output amounts to one of the most significant contributions to an examination and analysis of indigenous issues in Australia.
The recommendations, however, numerous as they are aim primarily at alleviating symptoms. They stop far short of constitutional or serious attempts at aetiological redress of power imbalance recommendations. An issue as fundamental as Aboriginal customary law received the recommendation[59] that government be urged to respond to the Australian Law Reform Commission's Report (ALRC) of 1986.[60] The terms of reference for ALRC should be noted were established in early 1977, while the debate over the justification of imposing non-Aboriginal laws and denying recognition of Aboriginal laws may be traced back to 1788. A recommendation, under such a time frame and of such importance, urging government to respond may seem to some inadequate and feeble.[61]
The Queensland Department of Families, Youth and Community Care's Office of Aboriginal and Torres Strait Islander Affairs (OATSIA) in its program description of AGSP, chooses to cite as its single reference from RCIADIC the significance of indigenous organisations and structures to the concept and advancement of self-determination.[62] It specifically refers to Recommendation 199 "that governments recognise the diversity of organisational structures developed by Aboriginal and Torres Strait Islander peoples."[63] It should be noted however that Recommendation 199 refers specifically to the delivery of services which may seem to restrict the ambit envisaged for the concept of alternative governing structures as administered by the Queensland government.[64]
OATSIA also draws for the justification of AGSP from the Queensland Parliamentary Committee of Public Accounts (PCPA) Report No.8. The first and overriding recommendation from this report calls for negotiations with all DOGIT communities "to determine the appropriate structure and constitution for a local authority representative Council in each community."[65] The Committee made four further recommendations[66] but made quite plain that in its view, fundamental reform of the structure and constitution of the Councils themselves was vital and that other recommendations without this would be of minor importance. The basis of this view was that both structure and constitution of the current Aboriginal and Island Councils imposed by the Community Services (Aborigines) Act 1984 and the Community Services (Torres Strait) Act 1984, were culturally inappropriate models. The Committee stated that it was its belief,
that the key to the resolution of the problems of the effectiveness of Councils lies in acknowledging the fact that these Councils are first and foremost Aboriginal and Islander organisations composed of, and meant to represent, people whose various forms of social and political organisation (one of the cultural fundamentals) are vastly different from those of mainstream Australian society.[67]
The Committee identified what it perceived as fundamental flaws with the present system:
the legislative and administrative framework under which the Councils operate (based on such concepts as `representative democracy'; decision making for the "common good", or the "good of the community"; the separation of public and private interests and obligations; etc) is fundamentally incompatible and in conflict with the complex of interrelationships, priorities, obligations and decision making processes under which Aboriginal and Islander "communities" operate.[68]
The first concept which the Committee identified above, `representative democracy', as being fundamentally inappropriate for application to governing indigenous communities warrants some comment. The following year after the release of the Committee's Final Report, the Queensland Parliament passed the Legislative Standards Act 1992 (Qld). This Act requires all future Queensland legislation to conform to "Fundamental Legislative Principles" (FLPs) concerning human rights and the institution of Parliament. A central problem is that the requirements are premised on "the principles relating to legislation that underlie a parliamentary democracy based on the rule of law" (s 4 (1)). Further then to the Committee's identified issue of the inappropriateness of parliamentary democracy/ representative democracy is the question of "whose law" but like the question of indigenous sovereignty this is not to be contemplated by a system which has as one of its central tenets subscription to the Diceyan rule of law demanding "the universal subjection of all classes to one law administered by the ordinary courts."[69]
A further issue which the Committee clearly outlined was the historical heterogeneous complexities accompanying the establishment of what have been labelled inappro-priately, "communities."[70] The following passage from Report No.8 gives an indication of causes of tensions which may arise from such artificial and forced aggregations:
... it should be understood that these "communities" are artificial creations which deny the reality of Aboriginal cultural forms, and in which the notion of "community" in the Western sense is more an administrative label than one of the residents' own perception. While it is true that at certain levels, because of shared institutional and contact experiences, the residents identify themselves as having common interests and solidarity, this is mostly in relation to dealings with the outside world. Internally...these "communities" are complex collections of groups ... whose social, economic, and political obligations, commitments and alliances may go beyond any one locality, but which have been brought together by Government action into a highly artificial township situation ... The notion of "community", therefore, upon which the concepts of representative democracy is predicated, may not be generally valid for Aboriginal communities.[71]
In like fashion the total non-Aboriginal legal and political apparatus may lack validity from indigenous perspectives. Even that which is devised and designed with beneficent intention by post-colonial governments may likely lack congruence with what Rowse has labelled the "Aboriginal Domain".[72] By way of example, the Legislative Standards Act through its FLPs demands sufficient regard be given by the legislation to:
(a) rights and liberties of individuals, s 4 (2) (a), and (b) the institution of Parliament, s 4 (2) (b).
Yet the far more difficult and fundamental issue of addressing group rights of indigenous Australians, who in many instances, had alien citizenship thrust upon them, is raised only obliquely by the requirement of s 4 (3) (j). This provision arises from a concern that the "FLPs" address sufficiently: "Whether legislation has sufficient regard to rights and liberties of individuals depend[ing] on whether, for example, the legislation -- [inter alia] has sufficient regard to Aboriginal tradition and Island custom."[73] An expansive interpretation favouring indigenous rights, in line with the views expressed in Canadian[74] and United States[75] jurisdictions awaits legislative and constitutional reforms at federal, state and territorial levels in Australia. Under the inherited Westminster System, legislation is passed by putative, representative democratic institutions. In some instances as dispossessed enclaves, indigenous peoples in Australia who collectively make up less than 2 percent of the total population may not gain much in the way of solace from having the right to vote as their inadequate numbers (exacerbated by cultural factionalism and further exacerbated by the struggle for scarce resources fuelled by divide and rule political strategies and administrative implementations[76]) ensure they will not sway mainstream articles of faith. The situation in Cape York, in North Queensland, illustrates continued indigenous disempowerment in regard to local mainstream shires. Under the Community Services legislation indigenous communities are excluded from voting in the general local shire council elections.[77] Hence even where in a geographical area indigenous people constitute either a sizeable proportion or the majority of the population,[78] they have no electoral voice or representation for protection against what eventuates in the local contiguous or encompassing mainstream shire.79 Submissions from Aboriginal groups including the Cape York Land Council to the Queensland Electoral and Administrative Review Committee (EARC)[80] called for changes to local government jurisdictions.
Currently there are two overlapping forms of local government in Cape York: one Aboriginal, under either the 1984 Community Services Acts or the 1978 Local Government(Aboriginal Lands) Act, the other non-Aboriginal, under the 1936 Local Government Act.[81] Despite proposals for reform in the 1991 LRC's Final Report[82] and recommendations from EARC,[83] Aboriginal people in Cape York are still awaiting such implementation.84
A Discussion Paper on AGSP makes the suggestion that financial accountability may be the prime intent of this Queensland government initiative.[85] Investigations of the problems of accountability of the DOGIT community councils by the Parliamentary Committee of Public Accounts in Report No.8 (PCPA) revealed that in its view the attempted imposition of an alien accounting system on culturally heterogeneous indigenous groups was simply totally inappropriate. It is suggested that for some measure of meaningful remediation of the current accountability issues, what would be required in addition to "a combination legal regulation, ethical standard setting and ... institutional design"[86] would be first, the exploration of cultural differences followed then by their legitimated accommodation.[87]
It is to be noted that accountability inefficiencies under the Community Services Acts of 1984 (Qld) had their antecedents before the Aboriginal and Torres Strait community councils were charged with legislative responsibility. Discounting even the prime factor of the imposed fundamentally inappropriate accountability system, the prior departmental administrative record failed to establish a worthy precedent for community councils to follow.[88] Central to the problem identified by the PCPA report of the culturally inappropriateness of the imposed council system to result realistically in external accountability was the issue of what indigenous councils perceived as their prime responsibility: internal accountability to their own constituents.[89] The responses from DOGIT councillors indicated little hope that government would be mindful of indigenous perceptions or aspirations.[90]
The third report cited in the AGSP description and funding guidelines as identifying the need for such a program, is the LRC Final Report.[91] The Goss Labor government set up this Committee in August 1990. The five indigenous member committee comprised three nominations, two from the Aboriginal Co-ordinating Council and one from the Island Co-ordinating Council, and two ministerial appointments, one to represent the Aboriginal Shires of Mornington and Aurukun, and one to represent urban and rural indigenous people.[92] The purpose of the review was, (a), to examine three Queensland statutes, the Community Services (Aborigines) Act 1984, the Community Services (Torres Strait) Act 1984 and the Local Government (Aboriginal Lands) Act 1978, which govern the Aboriginal and Torres Strait Islander Community Councils and (b), to report on recommendations for "a new legislation framework consistent with Government policy for Aboriginal and Torres Strait Islander communities to manage and control their own destinies."[93] The initial difficulty was that the Committee could find no Queensland government policy to which these terms of reference could be directed.[94] By mid-1991 the Aboriginal Land Act had been enacted and one could glean from recital 10 of the preamble[95] some hint of government policy which would not be antagonistic to indigenous communities' managing and controlling, to some degree, their own destinies. Without such an understanding the Committee's consultative process would have lacked credulity as it required extensive dialogue with Aboriginal and Torres Strait Islander people about local community management arrangements. The process was not restricted to the 31 Aboriginal and Island Councils[96] but extended to the widest possible range of indigenous contacts[97] and relevant government and parliamentary bodies.[98] The Committee noted a lack of awareness in many of the indigenous communities of the legislation and its impact on community management.[99]
The recommendations of the Final Report were framed within several fundamental views. One was that the diversity of the communities would require a diversity of approaches and resultant possibility of diversity of outcomes. This would require \t(a) the recognition and accommodation of inter-community diversity and of even more fundamental importance, (b) reforms that permitted communities not simply to reflect some type of black imitation of mainstream structures but rather supported accommodation of culturally appropriate ones. Another was that communities should continue with current community governing arrangements under the existing Community Services Acts 1984 and Local Government (Aboriginal Lands) Act 1978 until such time as it was settled within communities what would be the future structures. This was not to be interpreted as acknowledging any satisfaction with the current circumstances arising under existing legislation but more a prudence to emphasise that pace and process of reform should reflect the needs of heterogenous communities and groups. It was further envisaged that legislation should reflect both inter-community diversity and indigenous cultural distinctness from non-indigenous society. A further fundamental premise was that the scope of the recommendations would be limited to modest achievable goals of greater autonomy.[100] In terms of indigenous aspirations for community self-government, regional self-government or recognition of indigenous sovereignty the Review Committee purposively refrained from pursuing such issues. This political strategy was not to be construed as pre-empting indigenous views on "the upper level of autonomy."[101]
The recommendations of the LRC Final Report are not intended to challenge the structures of mainstream Queensland government or jurisdiction. Proposed reform is to be pursued within the framework of the contingent rights model. It is an ambitious expectation that indigenous communities will produce models which will effect peace, order and good government for "communities" which are the legacies of colonial dispossession and of continuing post-colonial hegemony.[102] The barriers to success are raised even higher when it is realised that these same communities are dependent on the continuance of government funding and continuity of policy, and that they are already working within the restraints of severe resource limitations, human and material. The Final Report identified adequate funding on a three to five year funding basis and its control by indigenous government as vital to its success.[103] Without structural governmental changes, which in effect mean a redistribution of power, any new legislation would fail even to meet the minimalist indigenous autonomy model.[104]
The restrained tenor of the LRC report for indigenous advancement toward self-determination[105] was also reflected in its discussion paper where it adopted in places a submissive tone. To concede to non-indigenous arms of government the responsibility of defining indigenous rights would be for many indigenous people excessive contrition, if not betrayal. Nevertheless, the LRC could state:
The terms "self-management" and "self-control" are not easily defined. In the absence of a determination by an Australian Court of Aboriginal and Torres Strait Islander fundamental rights, the meaning of these terms will depend ultimately on policy.[106]
In light of the history of the last two centuries, there is no doubt that the unqualified term "policy" is meant to refer to the source as mainstream, non-indigenous.
Notwithstanding the restraints placed upon the LRC by the terms of reference of the inquiry, it could report from the results of its very wide consultative program with indigenous people these findings:
Aboriginal and Torres Strait Islander communities consulted by the Committee had no doubt about the survival of their rights. The Committee was often asked why the Queensland and Commonwealth Parliaments, and the Australian High Court, must be the ultimate adjudicators of Aboriginal and Torres Strait Islander rights. The question is important because it highlights a fundamental issue relevant to Aboriginal and Torres Strait Islander self-government. Whatever the legal situation, Aboriginal and Torres Strait Islander people do not regard any powers to govern which they exercise as being "derivative", or originating from any mainstream Government.[107]
This was reflected in the first principle enunciated by the LRC in its summary of proposals of self-government legislation: "There be a recognition of the pre-existing rights of Aboriginal and Torres Strait Islander people to self-government in the Preamble and the body of the proposed legislation."[108]
It is considered a basic principle of modern democracies that governments are formed with the consent of the governed. It is suggested that the chaotic conditions suffered by many members of indigenous communities are not lessened by the current imposition of alien power structures. It is further suggested that commitment (as opposed to compliance through force of absolute necessity) to a legal and political system will increase when the system is allowed to develop more organically, and that which is at stake appears to vest in the stakeholders. Until such times as indigenous rights are afforded a meaningful position protected by recognised indigenous structures of government and appropriate accompanying administrative mechanisms, the process of reconciliation will stall.
Focusing on financial administration of Aboriginal and Island Councils, a 1993 Parliamentary Committee of Public Accounts report (Report No. 27)[109] reiterated the most important finding from the 1991 Parliamentary Committee of Public Accounts Report No. 8. This was that the fundamental obstacle to Aboriginal and Island Councils providing efficient community government financial administration lay in
the present structure and constitution of the Councils [being] based on a culturally inappropriate model which does not recognise the realities of the social and political organisation (one of the cultural fundamentals) of each of the communities.110
The 1993 report continued by noting that the LRC was also in agreement with this finding and that the LRC further stated that:
This Committee's view that no governing structure imposed upon Aboriginal and Torres Strait Islander communities will work, led us to the concept of a community government constitution. Communities must be able to tailor community government options to meet their concerns, needs, circumstances and aspirations as indigenous people. Community control of the process of developing, drafting and adopting the constitution is an important avenue by which community members can have meaningful input into the evolution of their community government, and "ownership" of resulting community government structures.[111]
Supporting this view, the 1993 Report No. 27 concluded by stating:
... the Committee does not believe that this current system of Aboriginal and Island Councils can ever work. The different approaches to funding and accountability by Federal and State agencies, and the complications caused by these, are at continual odds with the cultural values and practices of the people involved. The Committee suggests a meeting of State and Federal Ministers to initiate, with the Aboriginal and Island communities, a completely new acceptable structure.[112]
The present proposed amendments to the Community Services Acts do not contemplate any broad enabling provisions to facilitate reform for alternative governing structures. As of this time there has been no official response to the purpose of the 1991 Legislative Review Committee, viz the recommending of a new legislation framework supportive of indigenous control over indigenous destinies. There is no movement to enact either an Aboriginal Community Government Act or Torres Strait Islander Community Government Act as recommended by the LRC.113 The LRC had previously drafted proposed legislation to be entitled Aboriginal Self-Government Act and Torres Strait Islander Self-Government Act.114 On further reflection, however, the LRC opted for the terminology of "community government" rather than "self-government" recognising "that the proposed legislation does not provide Aboriginal and Torres Strait Islander communities with the high level of political autonomy ordinarily associated with self-government."[115]
The Queensland government continues to adopt a case by case policy of giving consideration as to supporting community proposals for alternative governing structures.[116] The rationale is that it fulfils the bottom-up approach.[117] The purpose of the LRC recommendatory legislative reforms was not to attempt to pre-empt the specific form that community government would take in the recognised highly heterogeneous communities. Rather it was to provide an overarching legislative framework in which the variously appropriate forms of community government could be established and supported. The framework was also to accommodate the recognition of the "pre-existing rights" of indigenous people to their own forms of government.[118] This is a return to the critical issue of the categorisation of indigenous rights. A preliminary hurdle is the acknowledgment that such rights are cognisable under contemporary Australian law. Mabo 2[119] has opened the way, cautiously, with a fall back position to the plenary power of the State and this has been followed recently in Wik Peoples v the State of Queensland; Thayorre People v the State of Queensland.[120] Whether the powers be characterised as prerogative or statutory the end result for indigenous peoples in Queensland (as for the rest of Australia) has been the same: rights arise, if at all, only through the positive law of the contemporary dominant Australian political and legal system. Such politico-legal philosophical underpinnings were identified 30 years ago in the Australian Parliament by Mr Beazley [Snr]:[121]
It is vital to realise that the basic concept in our Constitution is really monarchical. The theory underlying our Constitution is much more akin to the idea that rights are graciously conferred by the Crown than to the republican idea of intrinsic rights. So anything that the Aboriginals are to get must be deliberately enacted by this Parliament.
The Queensland government, even at the level of community government, modest as it is under the LRC proposals,[122] has given no indication of granting, if any, even contingent rights. The recognition of indigenous rights being inherent, ie having their source in the very fact of indigenity would appear to be a far more distant vision.
As matters now stand in Queensland, indigenous communities are left to piece together, with no surety of return for their endeavours,[123] alternative governing structures. Perhaps, but not necessarily, there will be funds to continue a planning project going beyond one year. For many the preoccupation with day-to-day survival will preclude expenditure of effort required to satisfy government standards of eligibility and application for funding of community-based planning.[124] AGSP is designed for funding of community-based planning.125 It does not run to funding implementation.[126]
With the recognition of indigenous rights generally still at an incipient stage in Queensland (as in the rest of Australia) neither of course is there any hint of entrenchment to guarantee reforms resulting from AGSP. The advancement of indigenous rights is as much or more dependent on political support as it is on judicial outcomes. Certain key developments since the Queensland Coalition government took office in 1996 do not indicate indigenous affairs will willingly be allowed to occupy any but a subalternate position.[127] Its response to \tWik128 demanding the extinguishment of native title rights serves as a graphic example.
The tenor of the 1993 Mornington Report by the federal Race Discrimination Commissioner,[129] set up to investigate conditions on Mornington Island in the Gulf of Carpentaria and to make recommendations as to how life for the people could be improved both socially and politically, does not conflict with the recommendations of the Queensland Parliamentary Committee of Public Accounts Financial Administration of Aboriginal and Island Councils Report 2: Effectiveness of Councils, Support for Councils, Training,[130] the Legislation Review Committee Final Report131 nor those of the Royal Commission into Aboriginal Deaths in Custody National Report.[132] The Mornington Report once again stresses the central importance of government support for indigenous self-determination and equality of services judged against the standards existing in other parts of Australia. Although the terms are not used in the report, it may be useful to frame the two overarching recommendations in terms of formal[133] and substantive equality,[134] respectively. Formal equality being used in the sense that it would result in indigenous peoples' being acknowledged the right to self-government, the position approximating as far as practicable, that which they occupied before invasion. Substantive equality would include parity of government funding and services.[135] This dual view of "equality" distinguishing indigenous rights from minority rights or human rights generally informs the global aspirations of indigenous peoples.[136]
Current proposed Queensland Community Services amendments focus on fiscal reforms with the emphasis on financial accountability of the Community Councils. Cultural and social aspects from an indigenous perspective do not arise for consideration. Politically and legally, Queensland (along with the rest of Australia) remains monastically unaccommodating. The amendments were expected to come into effect in 1995[137] but are now expected in 1997.
It may be recalled that the Legislation Review Committee was set up in August 1990 with one of its prime purposes to report on recommendations for "a new legislation framework consistent with Government policy for Aboriginal and Torres Strait Islander communities to manage and control their own destinies."[138] In 1996 the Queensland Aboriginal Deaths in Custody Overview Committee could voice concern that implementation of amendments to the Community Services Acts would simply "further entrench the mainstream local government model on DOGIT communities which is contrary to the general thrust of the Royal Commission's recommendations."[139] The proposed amendments do not include any broad enabling provisions for alternative governing structures.
In 1997 a joint review is being undertaken by the Commonwealth Joint Committee of Public Accounts (JCPA) and the Queensland Public Accounts Committee (QPAC) pertaining to "the financial accountability requirements faced by Queensland Aboriginal Councils and Torres Strait Island Councils in their dealings with Commonwealth and State funding agencies."[140] The joint review will focus upon:
The specific discussion points enumerated by the joint review arise largely from the perspective that:
the shortcomings in financial administration by many of the Councils have been a matter of concern at both Commonwealth and state levels. The QPAC, the Special Auditor and the Royal Commission into Aboriginal Deaths in Custody have noted that contributing factors towards non-compliance are the complexity and differences between the financial reporting and accountability requirements of the different Commonwealth and state funding agencies.[142]
Without acknowledgment of previous reports' reviewing accountability issues in Queensland Aboriginal and Torres Strait Island Councils and the recommendations which clearly identify the imperative of realising and then accommodating cultural differences through indigenous empowerment, the 1997 joint review sets the discussion issues, skewing the focus, so that such aetiological factors are not on the agenda. In fact, correspondence from the Queensland Legislative Assembly, Public Accounts Committee states, "the Queensland Committee does not examine matters of government policy, so submissions concerning policy will not be considered."[143]
In light of the extreme importance placed by the previous Queensland Parliamentary Committee of Public Accounts' reports in emphasising the magnitude of cultural differences between indigenous and non-indigenous domains, any recommendations amounting to less than a restructuring of the imposed legal and administrative framework to accommodate those diversities would appear doomed to perpetuate the dismal failures of the past. The incongruence on the one hand between the focus of the 1997 joint review by the JCPA and the QPAC, and on the other of the rhetoric of the AGSP "to facilitate greater self-determination for Aboriginal and Torres Strait Islander communities in Queensland",[144] is plain. Further the stark bareness of the 1997 proposed Queensland legislative amendments to the Community Services Acts which focus on fiscal reforms and the emphasis on accountability of the Community Councils tend to point to meaningful indigenous reforms being caught in a time warp incapable of supporting the fundamental recommendations of six major recent reports, viz: Queensland Legislation Review Committee Final Report (1991), PCPA Report No.27 (1991), RCIADIC National Report(1991), PCPA Report No.8 (1993), Mornington report (1993) or Overview Committee Report (1996). But then, recall, Mabo took 204 years.
At the time of the work commissioned to the LRC in 1990, it stated:
The long term goal of the international law is to develop a special charter of rights for indigenous people that resolves the balance between individual and community rights. But no such Charter of rights has yet been formulated.[146]
Progress since that time has seen agreement in 1993 by the Working Group on Indigenous Populations (WGIP) on a final draft text[147] and subsequent Australian government acknowledgment, in restricted form, of the central tenet encapsulated in the Draft Declaration, Article 3: "Indigenous people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."
Of particular relevance to issues which were raised by the LRC, by the Queensland Parliamentary Committee of Public Accounts (PCPA) Report No.8, and the Royal Commission into Aboriginal Deaths in Custody National Report as they relate to the policies enunciated by the Queensland government of AGSP are certain articles from the Draft Declaration which will continue to engage the open-ended Inter-sessional Working Group of the Commission on Human Rights (CHR). In addition to Article 3 already cited, the identification of other specific Articles are posited as appropriate for close scrutiny as reflecting indigenous aspirations in Queensland as to, inter alia, the right to maintain indigenous characteristics, protection from ethnocide and cultural genocide, the right to decision-making, to legislative and administrative procedures and measures, to resources, to self-government, to indigenous institutional structures, to the benefit of the State's implementation of the provisions of the declaration.[148]
Opponents of "special" rights for indigenous peoples will view such claims as inequitable, ignoring the realities of dispossession and holding to the legitimation of the current legal and constitutional underpinnings of contemporary Australia by which the indigenous peoples of this land continue to suffer. Many indigenous peoples will take the view that the basis of their rights claims are grounded not in contingency but in inherency.[149] Recommendation 54 of the Queensland Aboriginal Deaths in Custody Overview Committee Report[150] recognising the value of international developments calls for the systematic study and dissemination to indigenous peoples of such information as that contained in the Draft Declaration.
On the occasion of the fiftieth anniversary of the United Nations, Chairperson-Rapporteur Erica-Irene Daes for the Working Group on Indigenous Populations, drew attention once more to the opening words of the UN Charter: "We the peoples of the United Nations" and reminded her audience that although the Charter had been intended to benefit every people, 50 years later many people continued to be regarded as ineligible to chart their own destiny.[151]
To date, Queensland like the rest of Australia has not entered into treaties with its indigenous peoples. While a large body of legal literature attests to the fact that overseas, other western democracies are still grappling with major complex issues with First Nations peoples, policies and events of the greatest significance suggest that Queensland (and Australia) would be less than prudent to ignore such indigenous developments, particularly in both the province of British Columbia and the Dominion of Canada, at constitutional, legal, political and social levels.152
The Queensland example of AGSP as it is currently formulated limits the scope for indigenous "government" to community level and sub-groups of those communities. Its critics may see it as a devolution of responsibilities without reforming provisions for the sharing of power. Optimistic supporters may see it as an inchoate, incremental step toward self-determination. In that it has been firm government policy in every contemporary jurisdiction throughout Australia that any support for indigenous self-determination would be of the "internal" type, ie for example, within the state in Queensland, and within the Commonwealth of Australia at the federal level, there is no governmental indication of third-tier indigenous levels of government in the Australian federation. Without negotiated recognition, followed by legislative and constitutional protection the reality of indigenous control of indigenous destinies remains in a parlous state.
Whether the Queensland electorate is prepared to accommodate indigenous cultural diversity sustained by an adequate resource base and if not, what cultural simplification really means may be viewed as a moral question if it does not yet rate legal status warranting protection. Central to the process of reconciliation in Australia is the educative element enunciated in the Council for Aboriginal Reconciliation Act 1991 (Cth) s 6 (b):
to promote, by leadership, education and discussion, a deeper understanding by all Australians of the history, cultures, past dispossession and continuing disadvantage of Aborigines and Torres Strait Islanders and the need to redress this disadvantage.
It is only within the past few decades that a swelling global awareness has emerged in regard to the imperative need for implementation of both policy and law to ensure the environmental protection of biological diversity. Trailing such a sea-change of perceptions is the notion of support for the recognition and accommodation of cultural diversity. Occupying as they do the special niche of autochthony, indigenous peoples will continue to strive for the recognition and accommodation of their rights, grounded in inherency, by the majoritarian non indigenous population. That task in Queensland remains a particularly daunting one.
[1] BA (UQ), LLB (QUT) MLS (British Columbia); Lecturer, Faculty of Commerce and Administration, Griffith University.
[3] Queensland Department of Families Youth and Community Care. Office of Aboriginal and Torres Strait Islander Affairs Alternative Governing Structures Program. Program Description and Funding Guidelines: A Process for Planning Community Decision-Making (Queensland Government, Brisbane, 1996) (Hereafter AGSP: Community Decision-Making).
[4] Grose P "Modern juridical foundations and developments in the recognition of indigenous rights in Australia: contingency v inherency"(SJD Dissertation, Bond University, submitted January 1997).
[5] Art 7, Draft Declaration on the Rights of Indigenous Peoples, as agreed upon by the Members of the Working Group of Indigenous Populations at its eleventh session. E/CN.4/Sub.2/29; Human Rights and Equal Opportunity Commission Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Sydney, 1997).
[6] Existing models in Australia of "bottom-up" federalism are provided by the Tangentyere Council in Alice Strings and the Pitjantjatjara Land Council of Central Australia: see also Coombs HC Aboriginal Autonomy: Issues and Strategies, Chapter 15 "Initiatives in Aboriginal political organisation" (Cambridge University Press, 1994) at pp 175-183.
[7] McGrath A (ed) Contested Ground: Australian Aborigines under the British Crown Sydney (Allen & Unwin, 1995) p xxix, where she questions the appropriateness of the term "post-colonial" on two main grounds: 1. Aborigines still continue to be colonised. 2. Australia still acknowledges its imperial allegiance.
[8] Aboriginal and Torres Strait Islander Affairs Budget Statement 1995-96 (Queensland Government, Brisbane, 1995-96) pp 161-162.
[9] Bimrose G "Alternative Governing Structures: Deed of Grant in Trust Communities, Mornington Island and Aurukun", [1994] AboriginalLawB 27; (1994) 3(68) Aboriginal Law Bulletin 13-15.
[10] AGSP: Community Decision-Making, op cit p 6.
[11] Ibid.
[12] The same situation applies to the other states and to Australia at the federal level. The exception at an inchoate stage is the Draft Constitution of the Northern Territory: Legislative Assembly of the Northern Territory. Sessional Committee on Constitutional Development Final Draft Constitution for the Northern Territory August 1996.
[13] See (1996) "1.3 Land Law" Chapter Nine Legislative Regulation in Queensland Part A Historical Background The Laws of Australia (Sydney, LBC Information Services).
[15] Ibid, at 181.
[16] Queensland Government Gazette v 1, pp 1-3
[17] Reynolds H and May D "Queensland" in McGrath, op cit, pp 168-207; Professor Rigsby's account in Legislation Review Committee 1991. Towards Self-Government, A Discussion Paper by Legislation Review Committee Inquiring into legislation relating to the management of Aboriginal and Torres Strait Islander Communities in Queensland pp 89-92 (Hereafter Towards Self-Government).
[18] 1996. "1.3 Land Law" Chapter Nine Legislative Regulation in Queensland Part B Form of Title Division 1 Nature of Interest in Land Subdivision (i) Aboriginal Reserves The Laws of Australia (Sydney, LBC Information Services).
[19] Compare with Cranston R "The Aborigines and the law: an overview", [1972] UQLawJl 4; (1973) 8(1) University of Queensland Law Journal 60 at 70: "... reserves were a microcosm of totalitarian states."
[20] Craig D The Social Impact of the State on an Aboriginal Reserve in Queensland, Australia \t(PhD Thesis, Berkeley, University of California: University Microfilms International 1980) p 25.
[21] Hasluck P Shades of Darkness: Aboriginal Affairs 1925-1965 (Melbourne University Press, Melbourne, 1988).
[22] Aboriginals Protection and Restriction of the Sale of Opium Acts Amendment Act 1934 (Qld), s 24.
[23] Hasluck, op cit; Australia. Department of Territories The Australian Aborigines (Canberra, Australia, The Department of Territories 1967).
[24] Aborigines' and Torres Strait Islanders' Affairs Act 1965; Aborigines Act 1971; Local Government (Aboriginal Lands) Act 1978; Aborigines and Islanders Act Amendment Act 1979; Wearne, op cit pp 17-25; Craig, op cit pp 34-38.
[25] See Aboriginal Protection and Restriction of the Sale of Opium Acts 1897-1939 (Qld); Aborigines Act 1971-84 (Qld).
[26] For an account of the Bjelke-Petersen implementation of this see Brennan F Land Rights Queensland Style: The Struggle for Aboriginal Self-Management (St Lucia Queensland University of Queensland Press 1992) pp 10-14 (Hereafter Land Rights).
[27] Brennan F "Consultation: Queensland's new legislation", (1984) 11 Aboriginal Law Bulletin 1,4,5,9,12; Pearson N "The Deed of Grant in Trust and Hope Vale Aboriginal Community, North Queensland", (1989) 2(38) 12-14.
[28] (1996) "1.3 Land Law" Chapter Nine Legislative Regulation in Queensland Part B Form of Title Division 1 Nature of Interest in Land Subdivision (ii) Deeds of Grant in Trust Subdivision (iii) Contents of a Deed of Grant in Trust The Laws of Australia (Sydney, LBC Information Services).
[31] Queensland. Department of Aboriginal and Islander Affairs 1981. "Self-Determination" Aborigines and Islanders in Queensland, Department of Aboriginal and Islander Affairs, Brisbane (unpaginated, at "E") (Italics added).
[32] Ibid compare with Community Services (Aborigines) Act 1984 (Qld), s 82 Regulations 3.
[33] Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
[34] The Queensland legislation was held to be invalid in Mabo v Queensland (No. 1) (1989) 166 CLR 186.
[35] Brennan F "State land rights and federal reconciliation", (1992) 68 Canberra Bulletin of Public Administration 11-13; and Brennan F Land Rights (1992), Chapter 5, particularly, \tpp 127-156.
[36] For criticisms of the Act see Miller B "Clayton's land rights. The Queensland Aboriginal Land Act -- an Aboriginal Coordinating Council perspective", (1991) 2(52) Aboriginal Law Bulletin 10-12; Tatten R and Djnnabah "Queensland land rights: - An illusion floating on rhetoric", (1991) 2(52) Aboriginal Law Bulletin 13-15.
[37] Brennan F "The Queensland Aboriginal Land Act 1991", (1991) 2(50) Aboriginal Law Bulletin 10-12; see also Editorial, same issue, for discussion of the deficiencies of the consultative framework, at 3.
[38] For a listing of the 14 Aboriginal Community Councils and the 17 Torres Strait Islander Councils see, Towards Self-Government op cit, Table 8 at p 143 and Table 9 at 144.
[39] Australian Bureau of Statistics. 1991 Census of Population and Housing ATSI Communities in Queensland Preliminary Counts.
[40] Madden R National Aboriginal and Torres Strait Islander Survey 1994. Detailed Findings (Australian Bureau of Statistics, Canberra, 1994) p 94.
[41] Community Services (Aborigines ) Act 1984, Pt IV ss 46-53.
[42] Miller B The Aspirations of Aborigines Living at Yarrabah in Relating to Local Management and Human Rights Discussion Paper no 7 (Canberra Human Rights Commission 1986).
[43] Morgan H "The dangers of Aboriginal sovereignty", (1992) News Weekly 29August, 11-13.
[44] Royal Commission into Aboriginal Deaths in Custody Regional Report of Inquiry in Queensland Commissioner Wyvill, QC (Canberra, AGPS 1991) pp 137-8. (Hereafter Queensland \tRegional Report)
[45] AGSP: Community Decision-Making, op cit.
[46] Royal Commission into Aboriginal Deaths in Custody National Report (Commissioner Elliott Johnston, QC (AGPS, Canberra, 1991) (Hereafter RCIADIC).
[47] AGSP: Community Decision-Making, op cit.
[48] Ibid p 10.
[49] Queensland Parliamentary Committee of Public Accounts Financial Administration of Aboriginal and Island Councils Report 2: Effectiveness of Councils, Support for Councils, Training (Parliamentary Committee of Public Accounts Report No. 8 February 1991). (Hereafter Report No.8).
[50] Queensland Legislation Review Committee Inquiry into the Legislation Relating to the Management of Aboriginal and Torres Strait Islander Communities in Queensland. Final Report (1991). .(Hereafter Final Report).
[51] RCIADIC, op cit.
[52] Hogan M et al (eds) Death in the Hands of the State ( Redfern Legal Publishing, Sydney, 1988).
[53] RCIADIC, op cit v 2, Chapter 20 "Self-Determination", at 501.
[54] House of Representatives Standing Committee on Aboriginal Affairs A Chance for the Future: Training in Skills for Aboriginal and Torres Strait Island Community Management and Development (AGPS, Canberra, 1989) para 1.8.
[55] House of Representatives Standing Committee on Aboriginal Affairs Our Future Our Selves: Aboriginal And Torres Strait Islander Community Control, Management and Resources (AGPS, Canberra, 1990) p 12, cited in RCIADIC, op cit v 4, 20.2.4 ( Italics added).
[56] Walker v The State of New South Wales [1994] HCA 64; (1994) 126 ALR 321; Isabel Coe on behalf of the Wiradjuri Tribe v The Commonwealth of Australia and State of New South Wales [1993] HCA 42; (1993) 68 ALJR 110.
[57] Hazlehurst K "Introduction: Unyielding domains in the post-colonial relationship" in Hazlehurst K (ed) Legal Pluralism and the Colonial Legacy: Indigenous experiences of justice in Canada, Australia, and New Zealand (Aldershot, Avebury 1995) pp. ix-xxxv; McDonald D Whimp K "Australia's Royal Commission into Aboriginal Deaths in Custody: law and justice issues" in Legal Pluralism and the Colonial Legacy (1995) pp 188-216.
[58] RCIADIC, op cit v 1, "Framework of this Report."
[59] Ibid v 4, Recommendation 219, p 102.
[60] The Law Reform Commission The Recognition of Aboriginal Customary Laws. Summary Report Report No. 31 (AGPS, Canberra, 1986); for government response see, Office of Indigenous Affairs, Department of the Prime Minister and Cabinet Aboriginal Customary Laws: Report on Commonwealth Implementation of the Recommendations of the Australian Law Reform Commission (AGPS, Canberra, 1994).
[61] Aboriginal and Torres Strait Islander Overview Committee An Agenda for Action: The First Report of the Aboriginal and Torres Strait Islander Overview Committee (Brisbane, The State of Queensland (Department of Families, Youth and Community Care, 1996), Recommendation 33, p 104 (Hereafter Overview Committee).
[62] AGSP: Community Decision-Making, op cit p 12; citing RCIADIC, op cit v 4, pp 22-30.
[63] Ibid.
[64] Contrast National Aboriginal and Islanders Legal Services Secretariat (NAILLS) 1991. "Stopping the deaths: a spectrum of possibilities for self-determination" RCIADIC Submission para 12.16; cited in RCIADIC, op cit v 2 at para 20.2.10.
[65] Report No.8, op cit p 5.
[66] Ibid pp 6-7.
[67] Ibid p 33.
[68] Ibid p 32.
[69] Dicey A Introduction to the Study of the Law of the Constitution (10th ed, 1st ed 1885, Macmillan, London, 1959) p 193.
[70] Report No. 8, op cit pp 13-18.
[71] Ibid pp 16, 18; cited also in Queensland. Criminal Justice Commission Report on an Investigation into Complaints Against Six Aboriginal and Island Councils (Criminal Justice Commission, Brisbane, 1994) p 11.
[72] Rowse T Remote Possibilities: The Aboriginal Domain and the Administrative Imagination (NARU, ANU, Darwin, 1992).
[73] Parker C "Legislation of the highest standard? Fundamental legislative principles in the Queensland Legislative Standards Act 1992", [1993] GriffLawRw 10; (1993) 2(2) Griffith Law Review 123 at 132-134.
[74] Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145; Nowegijick v The Queen (1983) 144 DLR (3d) 193; Simon v The Queen (1985) 24 DLR (4th) 390; Regina v Sparrow 70 DLR (4 th) 385.
[75] Menominee Tribes of Indians v United States [1968] USSC 108; 391 US 404 (!968); Morton v Mancari [1974] USSC 132; 417 US 535 (1974); Bryan v Itasca County [1976] USSC 111; 426 US 373 (1976); Santa Clara Pueblo v Martinez [1978] USSC 76; 436 US 49 (1978); County of Oenida v Oenida Indian Nation [1985] USSC 97; 105 S Ct 1245 at 1258-1259 (1985).
[76] RCIADIC, op cit v 4 p 10.
[77] Community Services (Aborigines) Act 1984 (Qld); Community Services (Torres Strait) Act 1984 (Qld); parallel ss 19 (b) (i)-(ii).
[78] Final Report, op cit pp 11-12, citing as examples the four shires of Burke, Carpentaria, Cook and Torres.
[79] Final Report, ibid p 7.
[80] ATSI Related Submissions in Queensland Electoral and Administrative Review Commission Local Authorities External Boundaries Review, Public Submissions v 11 (1990).
[81] Langton M "Indigenous self-government and self-determination: overlapping jurisdictions at Cape York" in Fletcher C (ed) Aboriginal Self-Determination in Australia (Aboriginal Studies Press, Canberra, 1994) pp 131-136.
[82] Recommendation 10, p 21; see also Towards Self-Government, op cit pp 94-96.
[83] Electoral and Administrative Review Commission Report on the Local Authority Electoral System of Queensland (September 1990) chapter 19 pp 112-115, Recommendations Para 19.19.
[84] Poynton P "Into the deep black yonder: - EARC does Cape York", (1992) 2(55) Aboriginal Law Bulletin 10-12.
[85] Limerick M Discussion Paper on Alternative Governing Structures (OASIA 1994) p 2.
[86] Sampford C "Fundamental legislative principles: their meaning and rationale", (1994) 24 Queensland Law Society Journal 541.
[87] Arrington C "Giving economic accounts: accounting as cultural practice", (1993) 18 (2-3) Accounting, Organisations and Society 107-124; Lehman C "The `real' cultural significance of accounts", (1987) 12(5) Accounting, Organisations and Society 503-522; Tinker A et al "The normative origins of positive theories: ideology and accounting thought", (1982) 7(2) Accounting, Organisations and Society 167-200.
[88] Report No.8,,op cit pp 29-30.
[89] Ibid p 32.
[90] Ibid pp 32-33.
[91] Final Report, op cit.
[92] For identification and biographical background of members see ibid pp 1-2.
[93] Ibid p iii.
[94] Ibid p 1.
[95] Above p 8.
[96] Above n 37.
[97] Final Report, op cit Appendix 2 pp 47-52.
[98] Ibid Appendix 3 p 53.
[99] Ibid p 4.
[100] Recommendation 21 lists the proposed powers and functions, ibid p 26.
[101] Towards Self-Government, op cit p 3.
[102] Ibid paras 361-362; 405-413.
[103] Final Report, op cit Recommendation 64 p 38.
[104] Human Rights and Equal Opportunity Commission Mornington: A Report by the Federal Race Discrimination Commissioner (AGPS, Canberra, 1993) (Hereafter Mornington) ; Miller B The Aspirations of Aborigines Living at Yarrabah in Relation to Local Management and Human Right, (Human Rights Commission, Canberra, 1986).
[105] Final Report, p 8.
[106] Towards Self-Government, op cit p 1.
[107] Towards Self-Government, op cit p 8.
[108] Ibid p v; and see Final Report p 21 para 9(e).
[109] Queensland. Legislative Assembly of Queensland Parliamentary Committee of Public Accounts Report on the Financial Administration of Aboriginal and Island Councils Report No. 27 (Brisbane, Legislative Assembly 3 December 1993).
[110] Ibid p 9, citing Report No 8, op cit p 5.
[111] Ibid p 10, citing Final Report, op cit Recommendation 50 p 13.
[112] Ibid p 23.
[113] Final Report, op cit Recommendation 12 pp 24.
[114] Towards Self-Government, op cit Appendix 2 pp 131-134.
[115] Final Report, op cit p 8.
[116] For examples of initiatives see Adams J Castelain J and Martin D Aurukun Community Plan. Report One: Community Survey Homeland Development (March 1994); Report Two: Community Survey Dealing with Grog (May 1994); Report Three: Homeland Support Agency (August 1994) [Townsville], Yalga-binbi Institute for Community Development, Aboriginal & Torres Strait Islander Corporation; Wynter J Hill J with the Lockhart River Community and special assistance from Wayne Butcher Alternative Governing Structures Program. Targeting 2000: A Plan For Community Action Working Together and the Alternative Governing Structures Program (Lockhart River, October 1995, Lockhart River Aboriginal Council).
[117] Above n 5 and accompanying text.
[118] Final Report, op cit p 21.
[119] Mabo v Queensland (No.2) (1992) 175 CLR 1.
[120] (1996) 141 ALR 129 at 53 per Gaudron J at 70 per Gummow J.
[121] Hansard 1967, v 54 , p 284.
[122] Final Report, op cit pp 22-24.
[123] AGSP: Community Decision-Making, op cit para 7.2 p 17.
[124] Ibid pp 15-34.
[125] Ibid para 2.1 p 8
[126] Ibid para 8.3 p 21.
[127] Eg, non-support by the Queensland Coalition for the Cape York Heads of Agreement, signed 5 February 1996; omission of providing funding prevented evidence being heard from individuals in the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families; in disregard of the Human Rights and Equal Opportunity Commission Palm Island decision, No H95/74-80, H96/88, the Queensland Coalition elected to take the wages claim to the Federal Court of Australia, but subsequently settled out of court.
[129] Mornington, op cit.
[130] Report No. 8, op cit.
[131] Queensland Legislation Review Committee Inquiry into the Legislation Relating to the Management of Aboriginal and Torres Strait Islander Communities in Queensland. Final Report 1991.
[132] RCIADIC, op cit.
[133] Macklem P "Normative dimensions of an Aboriginal right of self-government", (1995) 21(1) Queen's Law Journal 173 at 217.
[134] Ibid pp 217-218.
[135] See the Goss Labor government Social Justice Platform at 4.2.7 and 4.2.8, cited in Overview Committee, op cit p 23. (The Overview Committee then proceeded to implore implementation.)
[136] Draft Declaration on the Rights of Indigenous Peoples, E/CN.4/Sub.2/29
[137] Queensland. Department of Family Services and Aboriginal and Islander Affairs. Office of Aboriginal and Torres Strait Islander Affairs Guide to Proposed Amendments to the Community Services Acts and Regulations Version 2 -- (Department of Family Services and Aboriginal and Islander Affairs, January 1995), p 1.
[138] Final Report, op cit p iii.
[139] Overview Committee, op cit Recommendation 32, p 104.
[140] Australia. Commonwealth Parliament. Joint Committee of Public Accounts and Queensland. Legislative Assembly. Queensland Parliament. Public Accounts Committee January Review of Financial Reporting Requirements for Aboriginal Councils and Torres Strait Island Councils, Issues 1 Paper (1997) p 1.
[141] Ibid
[142] Ibid p 2 (footnotes omitted).
[143] Correspondence, Reference: I11/97.3, 30 January 1997.
[144] AGSP: Community Decision-Making, op cit p 6.
[146] Towards Self-Government, op cit p 24. (Clarification on this would acknowledge work carried out from 1988; see eg UN Doc E/CN 4/Sub 2/1988/25; UN Doc E/CN 4/Sub 2/1989/33; Report of the Working Group on Indigenous Populations on its Ninth Session, UN Doc E/CN 4/Sub 2/40/Rev 1, Ann IIA).
[147] UN Doc E/CN 4/Sub 2/1993.
[148] In particular, Articles 4, 7, 19, 20, 26, 31, 33, and 37.
[149] "Consideration of a Draft United Nations Declaration on the Rights of Indigenous Peoples" E/CN.4.WG.15/4: paras. 19-20.
[150] Overview Committee, op cit p 201.
[151] E/CN.4/Sub.2/24 p 11.
[152] Terry J "Self-government for Canadian first nations: recent developments" Australasian Law Teachers Association 50th Anniversary Conference, Melbourne, 1995; Cassidy F "The modern treaty process and Aboriginal governments in British Columbia", [1993] AboriginalLawB 43; (1993) 3 (64) Aboriginal Law Bulletin 10-12; Tennant P "Strong promises on paper: treaties and Aboriginal Title in Canada" in Fletcher C (ed) Aboriginal Self-Determination in Australia (Canberra, Aboriginal Studies Press 1994) pp 177-190; Macklem P "Indigenous peoples and the Canadian Constitution: lessons for Australia?", (1994) 5(1) Public Law Review 11-34.
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