Chisholm, Richard; Weisbrot, David --- "Editorial- Will ALP Promises become Reality?" [1983] AboriginalLawB 2; (1983) 1(7) Aboriginal Law Bulletin 2

• Editorial – Will Alp Promises Become Reality?
• Land Rights
• Economic Development
• Services
• Administrative Structres

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Editorial –

Will ALP Promises become Reality?

by Richard Chisholm and David Weisbrot

This is the first issue of the Aboriginal Law Bulletin produced with the Australian Labor Party holding the reins of power in Canberra, and we congratulate the new Federal Minister for Aboriginal Affairs, Mr Clyde Holding, on his portfolio. Past issues have been quite critical of the previous government's policies on matters affecting Aboriginals. May we expect a new deal under Labor?

Just prior to the 5th March election, the then Federal Opposition Spokesperson on Aboriginal Affairs, Senator Susan Ryan, unveiled the ALP's Programme for Self-Determination, which we now take to be Government policy. Broadly, the programme calls for a redistribution of political and economic power so that Aborigines may achieve a reasonable degree of economic independence, and control of basic services such as health, education and housing.

A more detailed discussion of ALP policy follows, looking at the questions of land rights and related matters, economic development, services, and institutional structures. Generally, the policy document shows a sensitivity to Aboriginal concerns, identifies the seminal issues, and holds out - if too often in an unsatisfyingly vague fashion - the hope of finding and implementing appropriate solutions. The challenge for Labor now is to turn these promises into reality.

Land Rights

The key passage in the policy is this: Labor's policy is to ensure that Aboriginal people in all States and Territories are granted land rights in line with the following principles:

• Land to be granted as inalienable freehold.
• Mineral rights to remain vested in the Crown; however Aboriginal people to have the right to refuse permission for mining on their land or to impose conditions under which mining may proceed. A refusal or conditions shall be set aside only by an Act of Parliament.
• Royalties from mining on Aboriginal land to be paid into a Trust managed by and used for the benefit of Aboriginal people.
• Where traditional lands are unavailable for claim, compensation to be negotiated with the Aboriginal community.

In the following paragraphs, Labor undertakes to cooperate with those state governments which are in favour of land rights and to intervene in those which do not: `Where there is a long history of hostility to land rights and discrimination against Aboriginal citizens (as in Queensland) then the Federal Labor Government will be prepared to use its constitutional powers to achieve justice'.

On the Northern Territory, the policy states that Labor recognises that a significant number of Aboriginal communities have little or no claimable land under the present legislation, and many Aboriginal people on Non-Aboriginal pastoral land have no access to government services and `often live in appalling conditions'. Labor will `examine amendments to the Aboriginal Land Rights (NT) Act in order to ensure excisions of land for Aboriginal people in this situation'.

Labor also undertakes to support the Aboriginal Development Commission and the outstation movement. The section concludes with an important declaration:

The strength of the commitment of the Federal Labor Government in this matter is based not only on Labor's desire to repair the past damage done to Aboriginal Australians and on a recognition of the prior ownership of the continent by Aborigines; it also reflects an acknowledgment of the fundamental nature of the attachment of Aborigines to their land. Land ownership is the only realistic basis for programmes for social and economic development.

This strong statement is to be welcomed. Inevitably, however, the general principles leave many questions unanswered. It is not clear, for example, whether the NSW Government's Green Paper would be thought sufficient: Meredith Wilkie's article in this issue indicates the limited scope of that legislation, and argues that it falls far short of what justice requires and what Aboriginal people in New South Wales demand. With Labor Governments in Western Australia and Victoria as well as New South Wales and South Australia, the next few years will see whether Labor will implement the fine sentiments in its federal policy with the courage and persistence that will be required.

Related to the land rights question, Labor's programme recognizes the federal government's responsibility to legislate to protect Aboriginal culture and heritage, particularly Aboriginal sacred sites. This would again be accomplished in cooperation with the states and territories, but Labor vows to use its constitutional powers to intervene where - as in Western Australia and the Northern Territory - governments allow the destruction of sacred sites despite their classification in the relevant heritage Acts.

Economic Development

Labor's programme for Aboriginals stipulates that `the elimination of poverty will be a prime target', and suggests a number of strategies to overcome dependence on welfare payments. The programme states that:

These strategies for economic development are aimed at bringing about a radical change in the economic circumstances of Aboriginals. There should be a drastic reduction in dependence on welfare and a corresponding increase in the experience of power and autonomy. An additional progressive outcome will be an amelioration of the racism that feeds off the spectacle of demoralised and dependent Aboriginals.

The programme then briefly discusses, in this context, the major role that the Aboriginal Development Commission should play, mineral royalties, more appropriate income security schemes, affirmative action recruitment of Aboriginals into the Commonwealth Public Service, and securing the cooperation of the various state, territory, and local governments, and the private sector, in increasing employment opportunities.

Whilst the stated aims of the Labor programme are undeniably excellent, the programme is at this stage quite short on specifics. We hope that the new Labor Government will indeed regard this as a top priority, and move quickly and surely to implement its policies.

Services

Labor's commitment to self-determination for Aboriginal people is said to have implications in this area:

Programmes which have had success are those that involve extensive participation by Aboriginals. The structural change in federal government policy implied ... is the transfer of funds for Aboriginal programmes away from those State bureaucracies which are failing to deliver effective services to community-based Aboriginal-controlled services. Labor is committed to this course of action wherever possible.

The policy criticises the performance of state government services in areas of health, education and housing. However, continued federal funding of state government services will depend on the States' performance: `Where State governments wish to retain a substantial responsibility for Aboriginal services programmes they will have to demonstrate that these programmes have a high level of Aboriginal participation and control'.

Legal Aid The policy proceeds to apply these principles in relation to health, housing, communications, education and legal services. The policy on legal aid services will be of special interest to readers of the AboriginalLB. After referring to the disproportionately high involvement of Aborigines in the criminal justice system, the policy notes that Aboriginal Legal Services have been asked to do a massive job on extremely small budgets: 'Legal aid is one area which Labor believes needs an immediate injection of federal funds'.

This policy finds ample support in the work of the Ruddock Committee (Report on Aboriginal Legal Aid, House of Representatives Standing Committee on Aboriginal Affairs, 1980, ch. 16) which found that provision of legal aid is `of vital importance to Aboriginal people', and that the Aboriginal Legal Services were providing an effective service within the limits of their resources. That Committee therefore recommended the provision of additional funds. It is to be hoped that the new government will also reconsider the possibility of providing funding on a triennial rather than an annual basis. This would facilitate longer-term planning and the rationalisation of resources, and lift morale in the legal services, which often fear imminent abolition. Longer-term funding would also be more consistent with a policy of self-determination for Aboriginal people.

There is an interesting comment in the ALP programme on the role of Aboriginal Legal Services:

Because of the paucity of funding most ALS's are forced to concentrate on criminal cases and can do little in areas such as compensation cases, pursual of wage awards, domestic violence cases, etc. Labor would immediately increase support for Aboriginal legal aid services so that they could provide full and adequate services for their Aboriginal clients.

It is good to see a recognition that funding affects the type of legal work that can be done as well as the quantity. However, it may be that ALS's have other areas of high priority, such as research and litigation related to land claims, anti-discrimination and the like. There are many fields in which the ALS's could have a greater role in the development of law as well as its administration. An example is child welfare. Labor's general policies imply greater support for Aboriginal child care agencies, and are in sympathy with the recommendations of the Australian Law Reform Commission for federal legislation along the lines of the United States' Indian Child Welfare Act 1978. (We hope to discuss this in the next issue.) But the drafting of such legislation, and its implementation will require detailed work involving both a knowledge of the law and of Aboriginal communities in different parts of Australia. The Aboriginal Legal Services, if they were adequately funded, could play a vital role in the development of this area of law, which many Aboriginal people have described as second in importance only to land rights, children being Aboriginal communities' `most precious resource'.

Administrative Structres

Labor's planned programme calls for a radical, and welcome, redefinition of the role of the Federal Department of Aboriginal Affairs (DAA):

A restructured DAA will provide a secretariat to the National Aboriginal Conference, with administrative, research and policy coordination functions. Similarly, it will provide administrative resources to Aboriginalcontrolled organisations. It will not determine the policies of these organisations, but will be responsible for ensuring effective administrative structures for policy implementation, and jointly with the organisations establishing satisfactory methods of accountability to government for expenditure of federal funds.

Having turned the DAA into a service agency, the programme calls for the strengthening and restructuring of the National Aboriginal Conference (NAC), which would become the major source of policy advice. Promised are a significant increase in resources allocated to the NAC (and to other national Aboriginal organisations, such as the National Aboriginal and Islander Health Organisation, the Federation of Land Councils, and the National Aboriginal Education Committee), and consultation with the aim of altering the 'non-Aboriginal structure imposed upon [the NAC]' and developing it 'as a more culturally appropriate national body to advise government'.