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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Aboriginal Law Bulletin --- "Update: Land Fund; ABS Survey; Editorial; Resources; UN Draft Declaration on the Rights of Indigenous People; UN Human Rights Procedures and Indigenous Australians Conference; ATSIC's Social Justice; HOPE Conference" [1995] AboriginalLawB 23; (1995) 3(73) Aboriginal Law Bulletin 2


Update

April 1995

Land Fund

The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth) (the Land Fund Act) was assented to on the 29th March 1995. It will be proclaimed before the end of the financial year. The Keating Federal Government responded to the High Court's Mabo (No 2) decision with a three part plan:

The Land Fund Act replaces Part 10 of the Native Title Act 1993 (Cth) (the NTA) and fulfils the same objectives as this section was to fulfil - i.e., it establishes a land fund to benefit those dispossessed of their native title. The fund has been established in response to the fact that the majority of Aboriginal and Torres Strait Islander people have been dispossessed of their native title.

The Fund

The legislation provides for money to be transferred from consolidated revenue into a land fund trust account. It is envisaged that the fund will be self sustaining after ten years. $200 million was allocated into an interim fund established under the NTA for 1994-1995. Each year an allocation of $121 million dollars, indexed to the 1994/95 dollar value, will be transferred into the trust account. Up until 1997 allocations for the purpose of land acquisition and management will be divided between the Indigenous Land Corporation and ATSIC. From 1997-98 onwards the Corporation will receive $45 million annually from the land fund. Thee remainder of the fund will be invested.

The Indigenous Land Corporation

The Indigenous Land Corporation will be administered by a Board of seven directors. The ATSIC chairperson and at least one other ATSIC Commissioner must be appointed. The Minister appoints the directors in consultation with ATSIC and the Finance Minister. At least five of the directors must be Aboriginal or Torres Strait Islander people.

Functions of the Corporation

How the Corporation will operate

The Indigenous Land Corporation can establish subsidiaries to carry out its functions in regional centres. The Land Fund Act establishes a number of criteria which guide the Corporation and its subsidiaries' operations. These include:

The Corporation must carry out its functions with regard to benefiting indigenous communities socially, culturally and economically.

It should act to maximise employment of Aboriginal and Torres Strait Islander people and the use of goods and services provided by businesses owned or controlled by indigenous peoples.

It must act using sound business principles when operating commercially.

Terry Libesman

ABS Survey

The Australian Bureau of Census and Statistics in February published a National Aboriginal and Torres Strait Islander Survey: Detailed Findings together with a Summary called Getting Results and Regional Overviews for 35 ATSIC regions. In his Preface to Detailed Findings the Acting Australian Statistician, Richard Madden, ascribes the Survey to Rec.49 of the Royal Commission Into Aboriginal Deaths In Custody:

That proposals for a special ational survey covering a range of ocial, demographic, health and conomic characteristics of the boriginal population with full boriginal participation at all levels e supported ...

Development of the Survey commenced in April 1992 in co-operation with indigenous Australians and their organisations. Some 90 Aboriginal and Torres Strait Islander people were recruited in March 1994 to conduct interviews between April-July with over 15,700 Aboriginal and Torres Strait Islander people.

The purpose of the Survey is:

... to provide Aboriginal and Torres Strait Islander people and Commonwealth State and Territory governments with the most needed statistics in a range of social, demographic, health and economic areas. It provides a stronger information base for planning for the empowerment of Australia's Indigenous peoples and for measuring progress in meeting their objectives, aspirations and needs.

Areas covered include Family and Culture, Health, Housing, Education and Training, Employment and income, Law and Justice. Findings as reported in the summary Getting Results include the following:

The ABS plans to release further publications from the Survey through 1995 and 1996. Contact:

National Aboriginal and Torres Strait Islander Statistics Unit
Australian Bureau of Statistics
GPO Box 3796
Darwin NT 0801
Tel: (1800) 633 216
Fax: (089) 410 715

Native Title - Resources

The National Native Title Tribunal has published a 36 page, easy-to-read document, A Guide, together with the following pamphlets:

Inquiries and orders: free-call 008 640 501.

Mabo / Native Title kits

Social Justice Commissioner Mick Dodson launched two print kits, published by the Aboriginal Law Centre as part of its Mabo/Native Title Community Education Project, on 16 March.

One kit is designed for community groups (cost: $5.50) while the other is specifically designed for use in schools (cost: $6.50).

Orders and inquiries: Tina Jowett Tel: (02) 385 5850.

Editorial

The High Court a few weeks ago handed down its decision regarding the constitutional validity of the Western Australian and Commonwealth Native Title legislation. The decision of the full bench resoundingly upholds the constitutionality of the Commonwealths Native Title legislation against the Western Australian legislation. As Richard Bartlett argues at pp8-9, at the core of the decision is a recognition and constitutional rejection of the racist underpinnings of the WA Act. While laudable in terms of the effect of its judgment, paradoxically the High Court continues to view the Racial Discrimination Act 1975 (Cth) (RDA) as superimposing itself on the common law so as to protect native title against extinguishment without compensation. Garth Nettheim recalls how under the terms of Mabo No 2 the majority Justices decided that without the RDA there would be no legal basis for compensation.

Not only does this dominant interpretation of the common law affect native title but it raises more generally the question of whether British constitutional and common law traditions have the capacity to independently resist, that is apart from statutory enactments, racist acts of state.

This is likely to be a vital question in the resolution of Kruger & Ors (the "Stolen Generations", see p25 – [1995] AboriginalLB 24; 3(73)pg25) and Joy Williams removal cases (pp2l-22 – [1995] AboriginalLB 32; 3(73)pg21). In essence, the "Stolen Generations" case challenges the constitutionality of racially discriminatory removal legislation and regulations operative prior to the RDA. It will be interesting to see how the High Court relates the prescriptive power of international law, particularly Article II of the United Nations Convention o n the Prevention and Punishment of the Crime of Genocide, 1948, domestic constitutional law and the Northern Territory Aboriginals Ordinance 1918-1953 under whose purported authority Aboriginal children were forcibly removed. The "Stolen Generations" case stands not only for the symbolic recovery of a traditionallyy forgotten and/or denied aspect of Australian legal and political history, but offers in contemporary Australia a legal basis and precedent for tangible reparation. In the project of Aboriginal reconciliation, constitutional recognition of the illegitimacy of removal stands with the rejection of terra nullius as a foundation stone in the construction of a post-colonial legal, political and social order in Australia. The historic challenge which now confronts the High Court is to see whether Australian constitutional jurisprudence has the capacity to offer both an autonomous source of resistance to the deadly and racist legality of removal laws, and justice for the stolen generations who were dispossessed of their land, laws and kinship ties.

UN Draft Declaration on the Rights of Indigenous People

As previously noted ([1994] AboriginalLB 58; 3(71)pg6), the Draft Declaration on the Rights of Indigenous Peoples was referred last year from the Working Group on Indigenous Populations, via its parent Sub-Commission on Prevention of Discrimination and Protection of Minorities, to the Commission on Human Rights (CHR). The CHR, unlike the Sub-Commission and the Working Group, is made up of representatives of (53) governments, many of which will clearly not be supportive of the Draft Declaration. There was concern among indigenous people's organisations and supportive governments that the CHR should not move immediately to discussions on the text of the Draft.

By resolution 1995/32, CHR resolved that the Draft Declaration should be considered by an "open-ended inter-sessional working group" of the Commission meeting for 10 working days at the earliest possible date in 1995. It is possible that the meeting may be held immediately after this year's session (in late July) of the Working Group on Indigenous Populations.

CHR also resolved in favour of the participation of relevant organisations of indigenous people, in addition to NGOs in consultative status with ECOSOC. Such participation is to be arranged in accordance with procedures set out in an Annex to the CHR resolution.

Briefly, indigenous organisations need to apply for registration by writing to the Co-ordinator of the International Decade of the World's Indigenous People. The Co-ordinator is Mr Ibrahima Full, Assistant SecretaryGeneral for Human Rights and the Director of the Centre for Human Rights, Geneva. The letter of application should set out (a) the name, headquarters or seat, address and contact person for the organisation; (b) the aims and purposes, of the organisation; (c) information on the programmes and activities of the organisation and the country or countries in which they are carried out or to which they apply; and (d) a description of the membership of the organisation, indicating the total number of members.

The full text of the resolution and its annex can he provided, on request, by the Aboriginal Law Centre or the International Organisations Branch, Department of Foreign Affairs and Trade, Canberra.

Organisations and individuals wishing to contribute to the development of the Australian Government's position on the Draft should submit their comments to DFAT before the end of April.

Inquiries concerning submissions, or the CHR process:
Bill Barber Tel: (06) 261 2068
Steve McIntosh Tel: (06) 261 3117

UN Human Rights Procedures and Indigenous Australians Conference
Sydney 28 - 30 June 1995

From 28-30 June 1995 the Aboriginal Education Unit and the Aboriginal Law Centre at the University of Wales, the Office of the Aboriginal and Torres Strait Islander Social Justice Commisioner, ATSIC and the Central Land Council will sponsor a conference in Sydney on UN Human Rights Procedures and Indigenous Australians. The Conference will provide a general overview of the international law of human rights, as well as a more detailed understanding of the UN system and human rights. Particular attention will be given to the reporting and individual communications procedures established under the major international- - human rights instruments. The Conference is - intended to contribute in a practical way to consideration of the significance of UN human rights procedures for Aboriginal and Torres Strait Islander corm unifies and organisations.

For further information and details of registration, contact:
Olga Havnen (Central Land Council) Tel: (089) 51 6210
Sarah Pritchard (Faculty of Law UNSW) Tel: (02) 385 2871

Going Forward: Social Justice for the First Australians
Council for Aboriginal Reconciliation, March 1995

The Council for Aboriginal Reconciliation has released its submission to the Commonwealth Government on measures for a "major social justice package between the Commonwealth Government and Aboriginal and Torres Strait Islander peoples". The report arises out of joint consultations undertaken by the Council and ATSIC with indigenous peoples on social justice issues. It focuses on recommendations to assist the Government in developing its response to the High Court's Mabo (No.2) decision.

Two principal issues dealt with in the report are the effect of colonisation on indigenous relationships to land and sea, and the subordination of indigenous peoples to an imposed structure of -governance. The Report is 95 pages and presents 70 recommendations spanning constitutional issues, the "treaty debate", indigenous participation in the structures of government, an Indigenous Bill of Rights, devolved empowerment through regionalised arrangements, proposals for the reestablishment of rights for camping, ceremonial or hunting and gathering access to both public and private land, compensation, economic development and future consultation processes.

Copies and further information on the report may be obtained from:
Council for Aboriginal Reconciliation
Locked Bag 14
Queen Victoria Tee
Parkes ACT 2600
Tel: (toll free) 008 80 7071
Fax: (06) 2715168

ATSIC's Social Justice Report

ATSIC has published Recognition, Rights and Reform, their Report to Government on Native Title Social Justice Measures. The Report sets out further strategies that the Government should consider to address the dispossession of Aboriginal and Torres Strait Islander peoples as part of its response to the 1992 High Court decision on native title.

Copies of Recognition, Rights and Reform (both the main volume and Overview) are available from ATSIC:
Tel: (06) 289 1222

1994 Annual Report Aboriginal & Torres Strait Islander Social Justice Commissioner

The second Annual Report of the Aboriginal and Torres Strait Islander Social Justice Commisioner has been released. The Report is 268 pages and has five chapters covering social justice policy, implementation of the Royal Commission Into Aboriginal Deaths In Custody recommendations, a separate chapter on Recommendations 211 and 212, Indigenous Health issues and International perspectives. The report also has a number of useful appendices including the Eva Valley Statement, the Draft Declaration on the Rights of Indigenous People, International Labour Organisation Convention 169 and a Health Map which graphically displays the percentage and distribution of funding for Aboriginal and Torres Strait Islander health.

Copies of the Report can be purchased at a cost of $10.00 per copy, plus $5.00 postage (if single copy is required). If more than one copy is required, please contact the Publications Officer on (02) 284 9728 for information on postage costs. Cheque or money orders may be sent to:
The Publications Officer, Human Rights and Equal Opportunity Commission
GPO Box 51218, Sydney NSW 2001

The International Healing Our People Everywhere (HOPE) Conference 1995

Cairns, 28 May - 2 June

The idea of the First National Indigenous Australian Alcohol and Drug Free Conference arose from the World Indigenous Conference Healing Our Spirit at Edmonton, Alberta, Canada in 1992.

The HOPE conference aims to raise consciousness as to the destructive effects on indigenous peoples of the use of alcohol and drugs. It is intended to provide an environment in which denial of the problems associated with alcohol and drug use is broken down. This is seen as a crucial step toward the healing process.

The Conference intends to produce a mission statement and policy position paper regarding indigenous peoples and substance abuse in Australia.

The Conference is to be hosted by Bama Healing Centre ATSI Corporation, which was set up by the Aboriginal Co-ordinating Council (ACC) to deal with all issues pertaining to alcohol and drug abuse.

Commencing on Monday 29 May at the Novotel Palm Cove Resort, Cairns, speakers from Kathryn Brohl to Tony Ruiz on Dynamics of Recovery will build upon the notion of HOPE.

For information, contact:
HOPE Conference Secretariat PO Box 286
Palm Cove, Cairns Queensland, 4879
Tel: (070) 59 0066 Fax: (070) 55 3687


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