Sweeney, Desmond --- "Aboriginal Child Welfare: Thanks for the Apology, but what about Real Change?" [1995] AboriginalLawB 50; (1995) 3(77) Aboriginal Law Bulletin 4

Aboriginal Child Welfare:
Thanks for the Apology, but What about Real Change?

by Desmond Sweeney

On 15 August 1995, the Premier of New South Wales, Mr Bob Carr, formally apologised to Aboriginal people for past Government policies which resulted in `the tearing-up of Aboriginal family ties' and `treatment that saw young Aborigines torn away from their mothers'.[1] This apology echoes recent expressions of regret by the Prime Minister, Mr Paul Keating, and the Federal Minister for Aboriginal and Torres Straight Islander Affairs, Mr Robert Tickner, for the `tragic' effects of past Government child welfare policies.[2] The apology is a reaction to the increasing outcry from Aboriginal communities, academics and the wider Australian community to vthe mounting evidence of widespread harm occasioned by prior policies. It can also be seen as an attempt to defuse the growing Aboriginal anger, which is presently evidencing itself through numerous court actions in the NSW Supreme Court and the High Court of Australia, seeking declarations as to the ultra vires acts of prior Governments in endorsing policies for the widespread removal of Aboriginal children from their families, and seeking damages for ongoing psychological harm.[3]

The Premier's apology, while being an important symbolic step, and an opening for further dialogue between Aboriginal people and Government, does not address the extent to which current policies and child welfare laws should be modified to prevent continuance of harmful practices. It is suggested the current scope of such debate in Australia, and NSWin particular, is far too limited.

Changing Political Winds

The policy of removing Aboriginal children from their families commenced in NSWin the late 1800s. In 1883 the NSW Aboriginal Protection Board was established. Without legislative power to do so, it began to remove Aboriginal children from their families in the late 1890s. In 1909 the passage of the euphemistically titled Aborigines Protection Act 1909 (NSW) granted the Board additional powers, and a further amendment in 1915 gave the Board power to remove any Aboriginal child where it was in the interest of the child's moral or physical welfare. The amendment dispensed with the requirement for court approval for removal of children. The Board considered `being Aboriginal' provided sufficient reason for a child's removal from its parent. The passage of this amendment provoked vigorous debate, and one member of parliament protested that it would amount to legalising stealing Aboriginal children from their parents.[4] The practice of removing Aboriginal children continued under the policy of assimilation introduced in the 1930s. The policy continued in various forms until the 1970s, although the overt practice of taking of Aboriginal children from their families for simply `being Aboriginal' was modified, by placing those Aboriginal children whom child welfare officers considered to be in need of care with white families. The history in other States and the Northern Territory is strikingly similar.

The formation of independent Aboriginal child care agencies in the late 1970s increased pressure on the Government to change its policy. Other Aboriginal organisations, such as Link-Up, were established to provide assistance in re-unifying families and to Aboriginal people who were separated from their families. At the same time, the effects of prior policies were being documented by historians, and legal academics started questioning the appropriateness of existing legal mechanisms. In 1975, the Royal Commission on Human Relationships acknowledged the problems caused by the practice of removing children from Aboriginal mothers to be brought up in non-Aboriginal homes.[5] The First Australian Adoption Conference in 1976 called for Aboriginal self-determination in the areas of child welfare and placement. In 1980, the NSW Government funded the Aboriginal Children's Research Project, which made numerous recommendations concerning legislative reform of Aboriginal child welfare. In 1986, the Australian Law Reform Commission completed its decade-long inquiry into recognition of Aboriginal customary law. Its recommendations included implementation of an Aboriginal child placement principle. The Royal Commission into Aboriginal Deaths in Custody in the late 1980s-1990s heard evidence of the often disastrous effects of separation of Aboriginal children from their families, leading one Commissioner, former NSW Supreme Court Judge Hal Wootten QC, to describe the policies as amounting to `cultural genocide'.[6] In 1990, a number of papers were published suggesting Aborigines take legal action to obtain recompense for harm caused by past Government policies. More recently, the `Going Home' Conference, held in the Northern Territory in October 1994, brought together many Aborigines to discuss what measures should be taken to assist the reunification of Aboriginal families, and legal options available.

Some jurisdictions have implemented legislative reform in response to the criticisms. For example, the Children (Care and Protection) Act 1987 (NSW) introduced an Aboriginal child care principle, and provision for involvement of the child's family and community in periodic reviews of children in custody. Similar amendments were made to the Community Welfare Act 1993 in the Northern Territory. Adoptions laws were amended to include specific provisions in relation to Aboriginal children in Victoria in 1984, South Australia in 1988, and the Northern Territory in 1994.

Wilson Inquiry

In May 1995, the Commonwealth Attorney-General requested the Human Rights and Equal Opportunity Commission inquire and report into the separation of Aboriginal and Torres Straight Islander children from their families. The inquiry, which is to be chaired by President of the Commission and former High Court Judge, Sir Ronald Wilson, is to report by December 1996.

The Terms of Reference of the inquiry (`Wilson Inquiry') include tracing past laws, practices and policies which resulted in the separation of Aboriginal and Torres Straight Islander children from their families, and examination of `current laws, practices and policies with respect to the placement and care of Aboriginal and Torres Straight Islander children and ... changes required taken into account the principle of self-determination by Aboriginal and Torres Straight Islander peoples'.[7] The Wilson Inquiry is expressly authorised by the Terms of Reference to consider, if appropriate, laws, practices and policies of any other country and report on them. Initial statements made by the President of the Commission, Sir Ronald Wilson, are encouraging in that they indicate he is taking a broad view as to the Terms of Reference of the inquiry.[8] Funding is available to assist Aboriginal communities and groups wishing to make submissions.

Apologies Are Easy

The Premier's apology was prompted by the release of the report Learning from the Past (`the Report'), commissioned by the NSW Department of Community Services (`the DCS'), and prepared by the Gungil Jindibhah Centre at Southern Cross University. The Report documents the pain and harm caused by previous Government policies concerning Aboriginal child welfare. The most important recommendations contained in the Report are for a formal apology for the damage caused to Aboriginal families by past State welfare practices, and that the Government provide `a compensatory social justice program for Aboriginal people with psychological and emotional damage or loss of land rights as a direct consequences of past State welfare practices'. While the NSW Government has apologised, it has not embraced the other recommendations.

Apologies absolve the conscience of the group making the apology. They can be given at little cost, as they invariably involve a disclaimer of particular conduct no longer engaged in. However, an apology does not by itself alter the underlying causes or values that gave rise to the particular conduct. Unless an apology is accompanied by action designed to address the underlying causes, it will not prevent similar harm being occasioned by different means.

While State Governments no longer have a deliberate policy of removing Aboriginal children from their communities, the actions of Government institutions continue to assist in the destruction of Aboriginal culture. For example, in remote communities, it currently seems that the numbers of Aboriginal children who are removed from their communities through the criminal justice system, by detaining them away from their communities, is actually increasing, not decreasing.

It is time to look beyond apologies and see what concrete action is proposed to end the historic policies which continue to harm Aboriginal cultural values to the detriment of Aboriginal youth. The message from Government controlled child welfare agencies remains `trust us, we have the skills to decide what is best for your [Aboriginal] community'. In this respect nothing has changed, other than that a token gesture of consultation is now offered. It is hard not to be cynical about the prospects for effective reform based solely upon such `consultation'. Even assuming that through such consultation Government agencies are able to comprehend problems facing Aboriginal communities, they have a history of implementing new policies in a manner which they consider is most appropriate based upon their (often inadequate) experience, rather than in ways which the Aboriginal community would chose.

Against this background, let us examine the recent Learning from the Past report.

Substance of the Learning from the Past Report

The Report has three primary components: it documents the history of Government policies concerning Aboriginal child welfare in NSW from the date of European colonisation to the present; it records the experiences and perspectives of Aboriginal people affected by those policies; it then draws on those experiences and perspectives to make recommendations concerning future policy and practice. It is in this last area that the Report is deficient.

The Report states that the needs of Aboriginal communities `centre on the one simple truth', namely, `for over two centuries Aboriginal people have been denied control over their lives with devastating consequences for their social fabric[9]^. It refers to `the legacy of the past' continuing to `overshadow present intentions' and argues that until `the mistrust, suspicion and fear of past State policies and practices have been acknowledged, addressed and reconciled with Aboriginal people, any changes in approach will be rendered useless', and that `the next step must be a radical departure from previous policy approaches' and `must focus on two crucial concepts - collaboration and empowerment'.[10]

Recommendations concerning future child welfare services are that the DCS provides cross-cultural training to its employees, consults more widely, recognises the importance of traditional Aboriginal family ties, employs additional Aboriginal child welfare officers, and enters into (ill-defined) collaborations with local Aboriginal communities. Far from constituting a `radical departure' from previous policy, the recommendations contain little new, and fail to address fundamental issues as to who should be determining Aboriginal child welfare policies and be responsible for implementing those policies.

Consultation Is Not Control

There is evidence in the Report indicating an Aboriginal desire for control over child welfare matters. Individual Aborigines are reported as saying `we need to be able to own our own destiny' and that `maybe it would be better if the welfare wasn't involved ... we should have blackfellers adjudicating all this'.[11] It states that certain Aboriginal communities (and some non-Aboriginal employees of the DCS) believe the solution to Aboriginal child welfare policy problems is ultimately `something ... outside the framework of existing structures'. However, rather than calling for change or further consideration being given to Aboriginal control, the recommendations advocate continuing the status quo involvement of the DCS, by implicitly accepting the DCS as being the appropriate primary child welfare body (albeit one that could operate in a more `culturally sensitive' fashion).

The Report has a section promisingly entitled `Self-Determination and the Collaborative Empowerment Model'. However, while using terminology such as `empowerment', the high points of the recommendations are that Aboriginal communities establish committees to liaise with the DCS, that the DCS collaborate with Aboriginal communities in establishment and implementation of future programs and projects, and that future DCS policies affecting Aboriginal people only be initiated after consultation with Aboriginal communities.[12]

At no stage does the Report consider whether the DCS should remain the primary body with responsibility over Aboriginal child welfare, or whether it would be better to transfer such responsibility to individual Aboriginal communities or organisations. Instead, it assumes that the DCS will retain this role. Rather than recommending the DCS consult with Aboriginal communities, why is it not more appropriate for Aboriginal communities to have primary responsibility with a requirement for them to consult with the DCS or non-Aboriginal experts on any issues where the Aboriginal community or organisation does not have relevant expertise? It is not as if the raising of children is a peculiar European skill of which Aboriginal communities have no experience. The evidence in the Report suggests, if anything, that Government agencies, despite their best endeavours, have been a failure in relation to the welfare of Aboriginal children and that they have been resistant to change. Why is it assumed that this can change? Sadly, such fundamental questions are not addressed.

If Aboriginal communities had ultimate control of child welfare and education, it would be hard to imagine that the recent controversial closures of the Traeger Park School in the Northern Territory, and the Northlands Secondary College in Victoria, would have occurred, or that juvenile justice detention centres in the northern parts of Queensland and Western Australia would be situated so far from Aboriginal communities.

My experience, in representing numerous Aboriginal children as a lawyer with the Aboriginal Legal Service in northern Queensland, is that many Aboriginal communities wish to have ultimate control of those systems which continue to remove children from their communities, rather than merely the lesser involvement of consulting with Government agencies. The frustration, bitterness and sadness of Aboriginal communities in seeing decisions made concerning Aboriginal juveniles in state care (often hundreds of kilometres from the community) has been expressed to me on numerous occasions by Aboriginal community leaders. Of course, views of different Aboriginal communities are not homogeneous, and it is crucial that any proposals for reform only be developed and implemented in conjunction with Aboriginal communities' cooperation.

Watered Down Recommendations?

Certain passages in the Report indicate an awareness of a need for fundamental structural change. It is hard to tell what position the authors of the Report adopt on this issue, as the recommendations do not reflect the sentiments expressed in certain passages of the body of the Report. In particular, the Report contains such phrases as the need for `a significant shift in approach by policy makers', involving a move `from a centralised hierarchy of policy making and implementation to a decentralised ascending hierarchy wherein the Aboriginal communities control the process', and refers to `irrefutable evidence of the need for Aboriginal people to be able to take control of their own destinies'.[13] It states in passing that one solution concerning the placement of children is that `the power to make decisions about children move from the department to Aboriginal families and communities' [14] . However, the authors of the Report do not appear to have the courage of their convictions when it comes to making recommendations. The recommendations are silent as to transferring control and responsibility for Aboriginal child welfare to Aboriginal communities, and do not suggest that the manner and delivery of child welfare services to Aboriginal communities needs fundamental change.

Do the authors of the Report intend that the DCS `consultation' with Aboriginal communities be the first part of a multi-stage process whereby control of Aboriginal child welfare will be transferred from the DCS to Aboriginal communities? If so, they do not make this clear. Other recommendations in the Report concerning counselling services, and measures to reunify Aboriginal families, expressly state that these should be undertaken by independent Aboriginal organisations, such as Link-Up, and that the role of the DCS should be limited to funding and referral of people who make enquiries about those services. The Terms of Reference do not expressly require the Report to comment on the appropriate model for delivery of future child welfare services. But the making of positive recommendations limiting the DCS's role in these areas, while making no such recommendations in the area of on-going child welfare services, by implication supports the on-going role of the DCS in delivery of Aboriginal child welfare services.

Recommendations Conflict With Evidence As To the Ability of Mainstream Child Welfare Agencies To Change

The Report's recommendations also appear to conflict with evidence contained in the Report concerning the prospects of existing child welfare services adequately to respond to needs of Aboriginal communities. For example, evidence in the Report suggests that employment of Aboriginal District Officers by the DCS, and attempts to culturally sensitise non-Aboriginal employees of the DCS, have met with only limited success.[15] Aboriginal communities consider past attempts at consultation as superficial and the DCS as still being culturally insensitive.[16] The Report refers to the `deep-seated mistrust and fear' of and antipathy towards the DCS by Aboriginal people as a result of past policies.[17] These matters raise serious questions about the ability of the DCS to formulate and effectively implement new policies.

Overseas Experience

It is unfortunate the Report did not refer to experience in indigenous communities in other western countries where child welfare responsibilities have been transferred, in part or in whole, to indigenous communities. If it had, it may have challenged the underlying assumption as to the appropriateness of continued DCS involvement in Aboriginal child welfare services.

Australia is not alone in attempting to find solutions to the often unfortunate past child welfare policies affecting indigenous peoples. Future debate in Australia, while needing to be responsive to the particular needs and position of Australian Aboriginal communities, may benefit from a consideration and critical evaluation of the approaches adopted in other countries.

(i) Canada

In British Columbia, the Spallumcheen Indian Band has exercised sole jurisdiction over child welfare issues through its child welfare by-law since 1980.[18] Amongst other matters, the by-law contains provisions concerning the care of children in need of protection when the child has been abused, neglected or abandoned, and it implements an Aboriginal child welfare placement principle where practicable. The Sechelt Band exercises similar powers over `social and welfare services with respect to Band members, including ... the custody and placement of children of Band members' pursuant to specific self-government legislation.[19] During the 1980s a number of tripartite agreements were entered into between Aboriginal communities, and the Federal and Provincial Governments. The agreements transferred functions of the Provincial and welfare authorities to Aboriginal child care agencies, but judicial control over the removal of children from their families remained with Provincial courts. The majority of these agreements concerned the provision of services to indigenous people who live within the boundaries of Indian reserve land, however a few extended to off-reserve services.[20] The transfer of responsibility to the Spallumcheen and Sechelt Bands has generally been considered to be quite successful, more so than these tripartite agreements.

In 1992-93, a series of agreements were entered into between indigenous people living in the Yukon Territory and the Northwest Territories, the Federal Government of Canada and the Territory Governments, which transferred responsibility for child welfare and a range of other matters, including the education of children, to individual indigenous tribes. For example, agreements with the Vuntut Gwitchin First Nation granted it power to enact laws in relation to numerous matters throughout the Yukon, including: provision of programs and services for its citizens in relation to their Aboriginal languages; provision of social and welfare services to its citizens; guardianship, custody, care and placement of Vuntut Gwitchin children; and provision of education programs and services for Vuntut Gwitchin children. The agreements commit the parties to further negotiations in relation to transfer of responsibility over family matters, administration of justice, and juvenile justice programs.[21] An associated financial transfer agreement provided that where the Vuntut Gwitchin took responsibility for services over which it was granted power, and similar services were presently provided to general members of the community by the Territory Government, that Government would transfer funding equivalent to the pro rata spending based on population for each member of the community to the Vuntut Gwitchin approved organisation. In addition, the Government is to provide general funding for indigenous organisations. A `safety net' was provided in that indigenous members of the community were not limited to utilising services provided by that community, but could choose to use the general Government-provided services if they wished.

More recently, the Federal Government announced its intention to enter into negotiations with any indigenous community which requests to do so, with the aim of establishing local self-government agreements concerning a range of matters including adoption, child welfare and education[22]

(ii) New Zealand

In New Zealand, the Children, Young Persons, and Their Families Act 1989 adopted a holistic approach to the treatment of children in relation to delivery of child family services, child protection hearings, juvenile justice hearings, and children who are in care or detained in respect of either protection or juvenile justice hearings. The Act provides for involvement of the child's indigenous community at both the initial court hearing (in the case of a child protection matter) or sentence (in juvenile justice matters), and in subsequent reviews of children in care. It also imposes a Maori placement principle for children in state care; requires services to be provided in a culturally appropriate manner; permits the Court to order a `cultural report' in respect of a child; provides for the incorporating of and granting of funds to indigenous community-based child welfare service agencies; and permits those agencies to be appointed by the Court as the custodian or guardian of indigenous children.

The legislation contains specific provisions concerning Maori involvement in child welfare which are too numerous to summarise here. An indication of the breadth of the provisions can be seen by those which impose general duties on persons involved in child welfare services. In particular, all courts and persons who exercise `any power conferred by or under this Act shall be guided by the following principles: ... wherever possible, a child's or young person's family, whanau, hapu, iwi, and family group should participate in the making of decisions affecting that child or young person ... and ... the relationship between a child or young person and his or her family, whanau, hapu, iwi, and family group should be maintained and strengthened'. The legislation also specifically requires the Director-General of the Social Welfare Department to ensure that, wherever possible, `all policies ... and all services provided by the Department ... [h]ave particular regard for the values, culture, and beliefs of the Maori people ... [s]upport the role of families, whanau, hapu, iwi and family groups; and ... [a]void the alienation of children and young persons from their family, whanau, hapu, iwi, and family group.[23] .

A major achievement of the Act is in articulating a cohesive set of principles and procedures that apply to all children in state care and to all decisions that may remove children into state care[24] . This may be contrasted with the fragmented situation in Australia where different policies apply to Aboriginal involvement in the fields of child welfare, family law custody disputes, adoption and juvenile justice.

(iii) United States

The main indigenous child care legislation in the United States of America is the Indian Child Welfare Act of 1978 (`the ICWA')[25] . The Learning from the Past Report states that an increasing number of Aboriginal people have suggested legislation similar to the ICWA be introduced in NSW. The references to the ICWA in the Report are in the context of consultation with indigenous communities on future changes and policy, taking cultural factors into account in child placement decisions concerning indigenous people [26] . Significantly, the Report fails to mention that the ICWA transferred the legal responsibility for, and jurisdiction over, indigenous child welfare decisions from State Courts and agencies back to the child's tribe (even in certain circumstances where the child was not living on an Indian reserve). Nor does the Report refer to the wealth of literature on both the practical benefits and difficulties encountered by indigenous communities in the USA, in the 17 years the legislation has been in operation. The ICWA has not been without its critics, both within indigenous and non-indigenous communities. However, it represents a fundamental shift in the allocation of responsibility from Government agencies to indigenous communities.

Admittedly, jurisdiction over indigenous child welfare was transferred to existing tribal court structures in the USA. Such a mechanism may not necessarily be appropriate in Australia. However, the fundamental impetus and reasons behind the ICWA are applicable to Australia and warrant discussion.

Re-inventing the Wheel

Not only does the Report fail to have regard to overseas experience, it also fails to mention prior Australian reports on Aboriginal child welfare issues, and prior requests by Aboriginal communities in New South Wales to have greater control over child welfare. For example, no reference is made to the Aboriginal Children's Research Project carried out in the early 1980s by the Family and Children's Services Agency, which was initiated and funded by the NSW Minister for Youth and Community Services and Aboriginal Affairs. A discussion paper issued by the Project set out the strong objections by Aboriginal communities to the proposed Community Welfare Bill 1981.[27] The discussion paper called for Aboriginal control over Aboriginal child welfare and the provision of adequate resources to make this feasible, and for the recognition of Aboriginal values in child care. It further suggested the ICWA as a model for consideration. Nor does the Report refer to any of the numerous papers by Aboriginal child care agencies calling for reform[28] .

As stated above, the Report mentions that Aboriginal people have suggested that legislation similar to the ICWA be introduced. But, by omitting to make reference to earlier reports in NSW, the Report gives no indication that this `suggestion' has formed for many years the corner stone of calls for reform by Aboriginal communities. It is perhaps not surprising therefore that the Report fails to consider this issue in detail, and that its recommendations not only lack any proposal for the introduction of ICWA-like legislation, but do not even suggest that further consideration should be given to such proposals.

Similarly, the Report does not refer to the recommendations of the NSW Government-appointed Steering Committee of the Aboriginal Children's Research Project, which called for the Government to `guarantee Aboriginal control over their children' and to limit the role of the DCS so it would not directly control the care or detention of Aboriginal children (except in special circumstances)[29] . Those recommendations called for the review and amendment of existing legislation to enshrine those principles, and to guarantee appropriate resources be given to Aboriginal communities to implement their own child welfare programs. Rather than `learning from the past', the Report attempts, unsuccessfully, to re-invent the wheel.

Conclusion

Government policies concerning Aboriginal child welfare have been a failure. Evidence suggests that recent attempts at reform have had only limited success and calls into question the ability of the DCS and similar Government agencies to adequately change. In related areas, such as juvenile justice and education, Government policies are taking backward steps. This fragmented approach, often compounded by the separate areas of responsibility of the different Government agencies, is endemic to western bureaucracies. There is no need for this to be so. After all, the areas of Aboriginal child welfare, child protection, adoption and juvenile justice are all dealing with the same fundamental issue, namely, the care and upbringing of Aboriginal children. A holistic approach is required to prevent improvements in one area being counteracted by retrograde steps in other areas. Furthermore, the fundamental question needs to be addressed as to who is best equipped to respond to problems and implement solutions for the future.

My comments are not intended to cast doubt on the bona fides of Government agencies. Rather, they are made to pose the question whether bureaucrats should be given the opportunity to try, yet again, to impose their well-intentioned attempts to find a solution. Or is it time to transfer responsibility to Aboriginal communities for such matters of fundamental importance as the welfare and education of their younger generation? It is time that these issues are discussed publicly. And it is important that the debate not occur within parameters set by non-Aboriginal bureaucratic agencies, such as the DCS, as appears to have occurred in the Report.

The Learning from the Past Report has many positive aspects, such as documenting the pain and suffering of Aboriginal communities under Government child welfare policies and the continuing effects of those policies. It can take credit as being the catalyst for the recent apology by the NSW Premier. However, its recommendations concerning changes required to current policies and methods of delivering Aboriginal child welfare services are inadequate. The implicit assumption that the DCS should maintain responsibility for development of future Aboriginal child welfare means the Report ignores one of the fundamental reasons for the state of Aboriginal child welfare today. Such failure raises serious doubts as to whether its recommendations are likely to result in real change. Regrettably, Learning from the Past is ultimately guilty of the same Eurocentric bias that it seeks to expose.

It is to be hoped the Wilson Inquiry will take a broader approach. In particular, it needs to examine the related issues of child welfare, adoption, juvenile justice, custody and education. It should look at the need to reduce the number of Aboriginal children removed from their communities, to ensure cultural factors are taken into account at all stages of decision making processes, and where it is necessary to remove Aboriginal children from their families, that mechanisms to ensure the children retain the greatest degree of contact possible with their communities are in place, and that the communities retain involvement with all post-removal decisions concerning children. In considering these matters, there is much overseas experience to draw upon. Finally, it is to be hoped that the Wilson Inquiry will actively facilitate debate within Aboriginal communities and the broader Australian community as to the appropriate mechanisms for the future delivery of Aboriginal child welfare, child protection and juvenile justice services, and whether it is time to return the responsibility for such matters to Aboriginal communities.

---

[1] The Sydney Morning Herald, 15 August 1995, page 2.

[2] Statement by the Prime Minister on the International Day of Indigenous People, Canberra, 9 August 1995

[3] See Williams v Minister, Aboriginal Land Rights Act (1995) 35 NSWLR 497; `The Stolen Generations Case', Vol 3, 73 Aboriginal Law Bulletin 25.

[4] See Gungil Jindibhah Centre of Southern Cross University, Learning from the Past, New South Wales Department of Community Services at pp 11-18 and references therein.

[5] Royal Commission on Human Relationships (Australia), Final Reports, AGPS, Canberra, 1977, Vol 4 page 125.

[6] Report of the Inquiry into the Death of Malcolm Smith, Royal Commission into Aboriginal Deaths in Custody (Australia), AGPS, Canberra, 1989.

[7] Terms of Reference issued by the Attorney-General dated 11 May 1995, as subsequently varied on 2 August 1995.

[8] The Sydney Morning Herald, 16 May 1995, page 6.

[9]Report, Executive Summary page B.

[10] Report, Executive Summary page C.

[11] At pp 61, 82, 96-7.

[12] Recommendations 15, 16 and 17. See generally pp 82-88.

[13] At page 83.

[14] At page 95.

[15] At pp 83, 90-94.

[16] At page 78.

[17] At pp 58 and 75.

[18] `A by-law for the care of our Indian children' promulgated on 3 June 1980.

[19] Sechelt Indian Band Self-Government Act 1986 (Canada), s14(1)(h). See further John Taylor & Gary Paget, `Federal/Provincial Responsibility and the Sechelt' in David Hawkes (ed), Aboriginal Peoples and Government Responsibility: Exploring Federal and Provincial Roles, Carleton University Press, Ottawa, Canada, 1989.

[20] See further David James, `Legal Structures for Organising Indian Child Welfare Resources', [1987] 2 Canadian Native Law Reporter 1; Desmond Sweeney, `Cultural Perspectives in Child Welfare Custody and Juvenile Justice Laws in Canada', unpublished paper submitted in partial fulfilment of requirements of a Masters of Law Degree, 1992, University of British Colombia.

[21] See Vuntut Gwitchin First Nation Final Agreement between the Vuntut Gwitchin First Nation, the Government of Canada and the Government of the Yukon dated 29 May 1993, clauses 24.2.1.4, 24.2.1.6, 24.2.1.10, 24.3.2.1, 24.3.2.3(b), (c), (e), (g), (i) and (j), and the associated Vuntut Gwitchin First Nation Self-Government Agreement clauses 13.2.2, 13.2.4 and 13.2.7. See also the Vuntut Gwitchin First Nation Self-Government Agreement Implementation Plan dated 29 May 1993.

[22] The Globe and Mail, 11 August 1995, pp A1, A6; Vancouver Sun, 11 August 1995, pp A1-2; see also `Aboriginal self-government - information sheet No. 3', Indian and Northern Affairs, Ottawa, Canada, September 1995. This is as a consequence of the federal government's recent recognition of the inherent right of self-government of First Nations within Canada.

[23] Sections 5, 7(2)(c).

[24] See further, W. Atkin, `The courts and child protection: Aspects of the Children, Young Persons, and Their Families Act 1989', (1990) 20 Victoria University of Wellington Law Review 319; Jean-Benoit Zegers & Catherine Price, `Youth Justice and the Children, Young Persons, and Their Families Act 1989' (1994) 7 Auckland University Law Review 803.

[25] 25 USCS 1901 et seq.

[26] At pp 51 and 95-6.

[27] Assimilation and Aboriginal Child Welfare - the Community Welfare Bill, 1981, Discussion Paper No. 3, Family and Children's Services Agency, September 1981.

[28] In particular, the Secretariat of the National Aboriginal and Islander Child Care has published numerous papers articulating the need for reform. For example, see B. Butler, `Aboriginal Children: Back to Origins' (1993) 35 Family Matters 7.

[29] See Aboriginal Children in Substitute Care - Principal Report - Part 01, Aboriginal Children's Research Project, Family and Children's Services Agency, July 1982, at pp viii-xiv.