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Davis, Megan --- "Treaty, Yeah? The Utility of a Treaty to Advancing Reconciliation in Australia" [2006] AltLawJl 32; (2006) 31(3) Alternative Law Journal 127

  • TREATY, YEAH?: The utility of a treaty to advancing reconciliation in Australia
    The utility of a treaty to advancing
    reconciliation in Australia


    Different nations have accommodated Indigenous peoples in various ways. Generally treaties were enacted, as occurred in New Zealand, the United States and Canada. Indeed, states like Canada have been engaging in post colonial treaty-making for those aboriginal nations that did not enter into a treaty at first contact — British Columbia and the Nisga’a Final Agreement are examples of this. Australia remains the only common law country that has not entered into a treaty agreement with its Indigenous peoples. In fact, Australia has not engaged in any formal state-building exercise of accommodating and recognising Indigenous peoples.[1] The 1967 referendum can hardly be regarded as a triumphant exercise in state-building particularly given the continued presence of s 51(xxvi) in the Constitution. Even the drafting of a sentence about Aboriginal peoples’ prior custodianship of Australia in the proposed revised preamble to the Constitution in the Republic Referendum of 1999 was controversial.

    Yet it is clear to many Indigenous peoples that, before Indigenous Australia can participate in the Australian democratic project on just and equal terms, the unresolved issues of the colonial project and the psychological terra nullius of Australia’s public institutions must be finally dealt with.[2] A raft of proposals may in some way address this injustice, including a treaty between the state and Indigenous communities, an apology to the Stolen Generations, or an Indigenous provision recognising the right to self-determination in a bill of rights. This article considers the prospect of a treaty between Indigenous Australians and the state and examines whether a treaty would contribute to reconciliation between black and white Australia. A treaty is a written agreement between the state and Indigenous Australia recognising the rights of Indigenous peoples and their place in Australia’s constitutional system. The terms of such an agreement would be negotiated between Indigenous peoples and the state but would, no doubt, recognise the Indigenous right to self-determination as well as the enumeration of other cultural, social and economic rights. The word ‘treaty’ can be a divisive term and for this reason it is frequently referred to as a ‘Makarrata’ in Australia. Makarrata is a Yolgnu word that means the end of a dispute and the resumption of normal relations.

    This article concludes that the process of negotiating a treaty between Indigenous Australia and the state has the potential to be a significant step toward reconciliation, regardless of the outcome of that process. It pinpoints some of the barriers to any treaty process, including the unsophisticated level of debate on Indigenous issues in Australia, the narrative of exclusion that dominates Australian history, and the insecurity of Indigenous peoples whose lack of institutional recognition renders them subject to the whims of the goodwill of the ruling political party and any ideological fashions of the day.

    Race relations

    Race relations between Indigenous Australia and the state are at an all time low. There has been a vacuum in Indigenous political leadership since the abolition of the peak Indigenous representative body, the Aboriginal and Torres Strait Islander Commission (ATSIC), in 2004. ATSIC was abolished by the federal government without any consultation whatsoever with Indigenous peoples. On 14 January 2004, there were race riots in Redfern after a young Aboriginal boy, T J Hickey, died while being chased by police and, on 26 November 2005, there were race riots on Palm Island following the death in custody of Mulrunji Doomadgee. In 2006, there has also been a renewed spotlight on the sexual abuse and violence in Indigenous communities that Indigenous women have been complaining about for decades to no avail. Law and order problems continue in regional and remote areas, reflecting an ongoing dislocation between Indigenous Australians and the public institutions of the state. The federal government has initiated extensive changes in Indigenous policy, including altering the funding arrangements for Indigenous education resulting in there being $2 million less spent on school age Indigenous children and meaning fewer Indigenous children will have access to tutorial assistance. More importantly, the changes altered the funding of the Aboriginal Student Support and Parent Awareness Scheme (ASSPA) which in many urban areas — where the majority of Indigenous children reside — contributed to important cultural activities, including after school homework clubs, breakfast clubs, activities with elders, dancing, story telling and assisted in the revival and continuation of Indigenous culture.[3] There is now an insidious dichotomy emerging as a result of federal government policy between urban Indigenous communities and rural and remote Indigenous areas. For example, shared responsibility agreements under the ‘new arrangements’ between government and Indigenous peoples are mostly in rural and remote areas. This is creating a legislative and policy tension between what the state perceives as an authentic and non-authentic Indigenous Australian or an authentic Indigenous community versus an inauthentic Aboriginal community. In addition to these perennial problems, the reconciliation movement has stalled. As Sean Brennan writes:

    The underlying issues confronting Australia regarding its race relations between Indigenous and non-Indigenous people will not go away. Many people thought that when half a million Australians marched across the bridge in support of reconciliation the momentum for substantive change was unstoppable. Since 2000, much of the wind has gone out of its sails.[4]

    Given the backward step in recent years in race relations, it is unlikely that there will be a belated state-building exercise, such as the process of negotiating a treaty to make Australia’s public institutions more inclusive of Indigenous Australians.

    The language of debate on Indigenous peoples

    It is also important to note the current tenor of public debate on Indigenous issues has rapidly deteriorated and is a barrier to the discussion of complex theories of Aboriginal sovereignty and self-determination that would be integral to any treaty-making process. Australian Labor Party President Warren Mundine has argued that Indigenous Australians have to ‘earn’ sovereignty.[5] The federal government labelled

    self-determination a ‘failed experiment’ and the former Minister for Immigration, Multicultural and Indigenous Affairs, Senator Amanda Vanstone, likened the existence of a separate Indigenous electoral structure as akin to apartheid, stating that, ‘[t]here was once a country we wouldn’t play cricket with because they had separate systems’[6] Most recently, the Health Minister, the Hon Tony Abbott MP, has argued that self-determination should be replaced with ‘new paternalism’.

    There is no restraint in public debate over the language used to discuss Indigenous issues and the policies of the past that failed to address Indigenous dysfunction are being reemployed (such as the suggestion by Tony Abbott for the re-appointment of community administrators — displaying a deep paucity of knowledge about Australian history, particularly the history of the administration of Aboriginal people). The rapid step backward in terms of serious analysis of the problems facing Indigenous communities is coupled with a reluctance of commentators to appreciate the true extent of the impact of colonisation on Indigenous peoples. History is all too frequently dismissed as being insignificant in constructing a way forward for reconciliation.

    ‘Symbolic’ and ‘practical’ reconciliation

    The perennially grave statistics of Indigenous health and wellbeing begs the question: how do these conditions exist in affluent Australia? For Indigenous peoples the answer lies in the inability of Australia’s political and legal institutions to recognise and accommodate Indigenous peoples. Reform of our public institutions, such as recognition of cultural rights or the right to self-determination in a bill of rights, dedicated parliamentary seats, a new Constitutional preamble, or an apology to the Stolen Generations would not be an overnight panacea; neither, however, are assimilatory policies or ad hoc reactionary policies such as prohibiting alcohol, installing administrators, ceasing welfare, promising petrol bowsers or swimming pools, or indeed asking Indigenous Australia to enter into shared responsibility agreements for services that white Australians receive by virtue of their citizenship.

    Under the Howard government, and supported by Noel Pearson, a false dichotomy has emerged between practical and symbolic reconciliation. It is short sighted and only prolongs Indigenous exclusion. ‘Symbolism’ includes a ‘rights agenda’ and includes possible institutional reform such as a treaty, a bill of rights, reconciliation, preambular recognition, constitutional amendment or an apology to the Stolen Generations. Conversely, the ‘practical’ approach is distinguished by emphasising the importance of Indigenous participation in the real economy, economic development, employment, banking and home ownership.

    The practical and the symbolic must, however, be reconceptualised as two sides of the same coin. This is something most Australians would appreciate: ANZAC, Kokoda, the wattle on the lapel, the settler, the drought stricken farmer, Don Bradman — these images and mythologies purportedly define our nation. Australians do not fail to understand the importance of symbolism. It is perplexing that Indigenous Australians should be asked to eschew symbolism and for it to be derided as wishy-washy and bleeding-heart.

    Belated state-building and reconciliation: can it be done?

    Many states have been involved in belated state-building exercises that are inclusive of Indigenous peoples. Canada has already been used as an example. Indigenous peoples in Canada benefited from agreement-making early in Canada’s history. Of those aboriginal groups that did not benefit from negotiating a treaty from the outset, some have since participated in recent treaty negotiations with the state such as in the case of British Columbia. Moreover, aboriginal groups in Canada benefit from a specific Indigenous provision in the Constitution.

    Latin American countries known as ‘third wave democracies’ or ‘radical democracies’ are notable for the extensive reforms of Constitutions in the region during the 1990s and the ‘belated recognition of cultural pluralism and the ensuing balance between Indigenous participation within the institutions of the state on one hand, and respect for the autonomy of Indigenous institutions on the other’.[7] These Indigenous activists did ‘not seek to overthrow the state but rather are looking to reform democracy’.[8] The mobilisation of Indigenous groups and the ‘radical constitutional reforms’ to recognise Indigenous peoples during the 1990s in Latin American states has been significant ‘as a means to re-establish the legitimacy of democratic government’ and has generated considerable scholarship regarding the importance of this for Indigenous peoples in liberal democracies globally.[9]

    Of course these belated exercises in state-building must be qualified by the fact that these states have a lengthy prior history of engaging with Indigenous peoples. It is not — as would be the case with Australia — a situation of starting from scratch. The examination of comparative efforts at belated state-building is valuable in terms of what has worked and what is effective in reforming public institutions so as to more realistically accommodate the Indigenous position within constitutional arrangements. Yet it can also be distracting given the demonstrated resistance to institutional reform in Australia, the difficulty in altering the Constitution being the most obvious example of this. The major problem with Australia is that no agreement was ever entered into from the outset and Indigenous Australians were deprived of even a symbolic power base on which to base their claims.

    This makes comparative analysis useful to a certain extent but it has a tendency to divert energies away from a true comprehension of Australia’s resistance to change and in particular prolongs the lack of specificity in terms of the detail about exactly what it is Indigenous Australia wants in the context of enumerating the right to self-determination. Comparative analysis also understates the uniqueness of Australian political culture in relation to race issues and how manifestly different Australia’s constitutional arrangements are from states like the United States, Canada or even Latin America.

    Indigenous disengagement from Australian public institutions

    The failure of the Australian state to negotiate a fair and just settlement is the core reason for Indigenous dysfunction today.[10] This does not mean that Aboriginal and Torres Strait Islanders should not be individually responsible for their actions or that their anti-social and criminal behaviour should be sanctioned — it simply means that the irresolution of Indigenous sovereignty is the fundamental reason for Indigenous disengagement with the state.

    This is a deeply held belief of many Indigenous people and it has manifested itself in many ways. According to former ATSIC chairwoman Lowitja O’Donoghue:

    The long standing absence of meaningful official recognition of Aboriginal customary law has had a detrimental effect on all facets of aboriginal community development and has substantially contributed to many of the social problems and varying degrees of lawlessness present today. The failure of successive governments to recognise customary law has resulted in the erosion of Aboriginal cultures.[11]

    Similarly the Aboriginal and Torres Strait Islander Social Justice Commissioner has observed that:

    There is currently a crisis in Indigenous communities. It is reflected in all too familiar statistics about the over-representation of Indigenous men, women and children in criminal justice processes and the care and protection system; as well as in health statistics and rates of violence. Ultimately one thing that these statistics reflect is the breakdown of indigenous community and family structures. They indicate the deterioration of traditional, customary law processes for regulating the behaviour in communities. This is due in part to the intervention of the formal legal system through removal from country, historical lack of recognition of of traditional rights to country and non-recognition of customary law processes as an integral component of the operation of Aboriginal families and societies in the Northern Territory.[12]

    These understandings of the destructive impact of institutional inertia on Indigenous societies have also been recognised internationally. A recent meeting of experts at a United Nations Seminar on Indigenous Peoples and the Administration of Justice held that lack of official recognition for indigenous law and jurisdiction, including indigenous customary law, the subordination of indigenous law and jurisdiction to national or federal jurisdiction, and the failure to introduce adequate mechanisms and procedures that would allow indigenous legal systems to be recognised and to complement national systems of justice contributes to ongoing marginalisation of Indigenous communities.[13] Of course, it does not help Indigenous peoples that national debates distort Indigenous culture. Indigenous law, for example, is popularly viewed as Indigenous communities reliving the halcyon days of Indigenous culture practising brutal, traditional punishment such as wounding or tribal payback. This tenor of discussion obfuscates the organic nature of customary law in Indigenous culture and the dynamic and shifting course of Indigenous law. The reality is that Indigenous law resides in an extensive number of legal issues such as dispute resolution, intestacy, child adoption and marriage.

    Legislative and constitutional reform is frequently suggested as integral to remedy Indigenous exclusion from public institutions. Yet this has rarely been followed through, despite the many inquiries into Indigenous issues and campaigns for Indigenous rights. Few of the recommendations of the Royal Commission into Aboriginal Deaths in Custody, for example, have been implemented,[14] and almost none of the recommendations from the Australian Law Reform Commission inquiry into recognition of Aboriginal customary law[15] and few of the final recommendations of the Council for Aboriginal Reconciliation[16] have been implemented. The report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children[17] attracted mean-spirited conservative comment[18] sanctioned by an ambivalent federal government response to its recommendations.[19]

    The irresolution of the status of Indigenous Australians has also manifested itself in other ways, including the recent controversy about violence and sexual assault in Indigenous communities. An ABC Lateline program documenting violence and sexual assault in Indigenous communities instigated national controversy about the state of Indigenous peoples living in Australia.[20] The stories told by Crown Prosecutor Nanette Rogers in a cool and precise manner were not new. In fact, for over three decades Indigenous women themselves have highlighted the serious problem of violence and sexual abuse in rural and remote areas. For decades Indigenous women like Audrey Bolger, Judy Atkinson, Sharon Payne, Boni Robertson, Alison Anderson, Larissa Behrendt and Hannah McGlade have been writing, talking, researching and trying to raise the attention of Australia to the dysfunction and violence in communities. Editorials trumpeted the bravery of Nanette Rogers smashing the ‘code of silence’ when Indigenous women have been on the record for decades producing official government reports, articles and books about this issue. But why weren’t their voices listened to? There are some important questions to be asked about why these reports by Indigenous women have been consistently ignored for three decades whereas the single television appearance of a white woman relaying similar concerns can instigate a national crisis on violence and sexual assault. In particular, it highlights the difficulties Indigenous women face in influencing public policy and more precisely the democratic process in Australia.

    Like all cultures, liberal democracies too must evolve — no system is perfect and other liberal democracies with Indigenous populations have understood that there must be other ways in which issues can be communicated beyond the ballot box, particularly for Indigenous minorities. The problem of Indigenous Australia is as much about the effectiveness of our representative democracy and the capacity of small numbered groups to influence that democracy. The idea of a fair and just settlement between the state and Indigenous Australians is about Australia’s public institutions making space for Indigenous Australians, like Noel Pearson’s recent suggestion for constitutional recognition. So too would a treaty nurture respect for these institutions among Indigenous people and engender a sense of belonging toward the state to counter the contemporary experience of ambivalence and dislocation from contemporary Australian life that continues to fuel dysfunction.[21]

    The lack of a settlement between the state and Indigenous peoples also manifests itself in the way in which Indigenous peoples, their rights and institutions are insecure and fleeting and subject to the whims of the political party of the day and the ideological currents of the period. For example, the Aboriginal and Torres Strait Islander Commission established by the federal Labor government in 1989 was abolished by the federal coalition government in 2005. The Racial Discrimination Act 1975 (Cth) enacted by the federal Labor government in 1975, was suspended in its application in 1998 so that the federal coalition government could amend the Native Title Act 1998 (Cth) to discriminate against native title on the basis of race.[22] Until 1996, federal Labor supported Indigenous self-determination at the United Nations Commission on Human Rights. Immediately after being elected, the new conservative federal government withdraw Australia’s support for self-determination. Surprisingly, in 2004, the same government reinstated its support for self-determination in international law, but only after abolishing ATSIC. These examples highlight how insecure Indigenous peoples’ position is within the polity in the absence of any structural recognition. The welfare of Indigenous peoples is inextricably linked to the goodwill of the political party of the day.

    Paradoxically, political leadership is one of the most important elements for the prospect of any potential Treaty process. One of the finest examples of leadership in the history of Australia is Prime Minister Paul Keating’s Redfern speech that is frequently used by Indigenous peoples as a stand-out example of the narrative of inclusion. Keating understood the importance of symbolism for Indigenous Australia — so much so that this speech remains important to Indigenous Australians today:[23]

    Imagine if ours was the oldest culture in the world and we were told that it was worthless. Imagine if we had resisted this settlement, suffered and died in the defence of our land, and then were told in history books that we had given up without a fight. Imagine if non-Aboriginal Australians had served their country in peace and war and were then ignored in history books. Imagine if our feats on sporting fields had inspired admiration and patriotism and yet did nothing to diminish prejudice. Imagine if our spiritual life was denied and ridiculed. Imagine if we had suffered the injustice and then were blamed for it. It seems to me that if we can imagine the injustice then we can imagine its opposite.

    Keating’s intuitive understanding of the narrative of inclusion can be easily contrasted with the current Prime Minister’s approach to Indigenous affairs. In fact John Howard’s speech at the Corroboree 2000 Reconciliation Conference resulted in Indigenous people turning their backs and heckling the Prime Minister.[24]

    Why is a treaty still important?

    It is the nature of liberal democracies that small, powerless groups struggle to influence political debate and public policy, particularly those minority voices whose group is constructed in a negative sense. A clear example of this is when the powerful and wealthy rural minority of farmers are juxtaposed against the undeserving, lazy blackfella. As a minority, farmers are not just boosted by significant public funds but they are bolstered by enduring sentimental mythologies of the bush and the colonial frontier. This allows them to benefit from public funds, unscrutinised in a way that the undeserving Indigenous person is not able to. John Howard highlighted this during the race hysteria of the Wik decision:

    Australian farmers, of course, have always occupied a very special place in our heart … They often endure the heartbreak of drought, the disappointment of bad international prices after a hard-worked season and quite frankly I find it impossible to imagine the Australia I love, without a strong and vibrant farming sector.[25]

    Added to this is the history and culture wars that enable a public contest over Indigenous history. This inevitably results in a narrative of exclusion — which the current federal government is extremely apt at engendering — and Indigenous Australians fail to establish a solid institutional foundation from which they are able to articulate their political claims. This consistently derails calls for a treaty process or an apology or constitutional acknowledgment. As the Prime Minister asserted in his ‘black arm band’ speech,

    There is a challenge to ensure that our history as a nation is not rewritten definitively by those who take the view that Australians should apologise for most of it. This ‘black armband’ view of our past reflects a belief that most of Australian history since 1788 has been little more than a disgraceful history of imperialism, exploitation, racism, sexism and other forms of discrimination. I take a very different view. I believe that the balance sheet of our history is one of heroic achievement and that we have achieved much more as a nation of which we can be proud than of which we should be ashamed.[26]

    Liberal democracies like Australia tend to be majoritarian in that policies are formulated ostensibly on the basis of the greatest good for the greatest number. It is inevitable that Indigenous peoples will be negatively affected. According to Hilary Charlesworth:

    The utilitarian approach places the right of vulnerable minority groups at the mercy of the will of the majority as well as making particular rights subject to trading-off with others. A richer understanding of democracy involves acknowledging that there are some rights that are so basic to human dignity that they should be taken out of the political arena and given special protection.[27]

    The capacity of democracy to temper majoritarianism and, as Charlesworth asserts, acknowledge that some rights should be taken outside of the political arena and given special protection, is attuned to Steiner and Alston’s observations of liberal democracies which are:

    not blind to the influence of groups (religious, cultural, ethnic) or of group and cultural identity in shaping the individual. Indeed the political life of modern liberal democracies is largely constituted by the interaction, lobbying and other political participation of groups, some of which are natural in their defining characteristic (race, sex, elderly citizens), some formed out of shared interests (labour unions, business associations, environmental groups). The liberal states, by definition committed to pluralism must accommodate different types of groups and maintain the framework of rights in which they can struggle for recognition, power and survival.[28]

    The political interaction and participation of Indigenous peoples has been severely hampered by the abolition of the peak Indigenous representative structure, ATSIC. Senator Amanda Vanstone said, at the demise of ATSIC, that Indigenous peoples now have the mainstream ballot box to influence political decisions like every other Australian, though the reality is that Indigenous peoples constitute 2 per cent of the Australian population of 20 million.

    Conclusion: treaty yeah? treaty now?

    In arguing that rights and the practical approach are not mutually exclusive, then the only conclusion must be that institutional symbolism of state actions such as a treaty, a bill of rights, an apology to the Stolen Generations or constitutional reform are unavoidable in addressing Indigenous exclusion within the Australian state.

    The treaty process may involve a nationwide negotiation or indeed negotiations with the more than 200 discrete Indigenous groups that live in Australia. The content of the treaty will be influenced by international human rights law. The international human rights framework through the United Nations provides a valuable source of human rights standards and jurisprudence that could be used in the discussion about the content of a treaty. These international human rights standards will be useful in relation to many potential areas of negotiation such as the right to equality, an entrenched prohibition of racial discrimination, and key areas of concern for Indigenous people like education, employment and health. Such standards are even more authoritative considering the developments of the past three decades of an emerging body of international law relating specifically to Indigenous peoples. Moreover, the United Nations Declaration on the Rights of Indigenous Peoples recently passed by the United Nations Human Rights Council will provide an important source of emerging rights such as the recognition of distinct Indigenous identities, the protection of Indigenous laws, cultures and languages, law and justice issues, reparation and compensation and economic and social development.

    While a treaty between Australia and its Indigenous peoples must be tailored to the unique circumstances and traditions of Australia’s first peoples, the development of a modern and dynamic settlement should involve all Australians. All Indigenous Australians should have the right to enjoy these rights and standards that in an ideal democracy, Australia’s public institutions, including the federal Parliament, are obliged to respect and apply. As Steven Curry argues in his recent book Indigenous Sovereignty and the Democratic Project, the failure to deal with Indigenous Australia ‘cast doubts on the ideals of human rights and popular sovereignty on which democratic societies are supposed to be built’.[29] Curry neatly concludes that we must ‘either accept the fact of Indigenous sovereignty and work to achieve a rapprochement with it, or we must abandon everything of real value we claim for ourselves. This means in practice taking the institutions of the settler state apart.’[30] This would be a significant advancement for reconciliation and a significant advancement on the current system that requires Indigenous people to enter into agreements or be accountable for services and infrastructure that most white Australians enjoy by virtue of their citizenship.

    [*] MEGAN DAVIS is a Senior Research Fellow in the Jumbunna Indigenous House of Learning at University of Technology, Sydney.

    © 2006 Megan Davis


    [1] Larissa Behrendt, Sean Brennan, Lisa Strelein and George Williams, Treaty (2004) 1.

    [2] Larissa Behrendt, Achieving Social Justice (2003) 3.

    [3] Indigenous Education (Targeted Assistance) Amendment Bill 2005. See generally Kate Munro, ‘The Indigenous Education (Targeted Assistance) Amendment Bill[2005] IndigLawB 36; (2005) 6(12) Indigenous Law Bulletin, 12–15.

    [4] Sean Brennan, ‘Reconciliation in Australia: The Relationship between Indigenous Peoples and the Wider Community’ (2004) Brown Journal of World Affairs 149.

    [5] Diana Bagnell, ‘Warren Mundine’, The Bulletin (Sydney), 28 September 2005.

    [6] Michelle Grattan, ‘PM Jumps, ATSIC Falls’, Sydney Morning Herald (Sydney), 18 April 2004.

    [7] Priti Singh, ‘Indigenous rights and the Quest for Participatory Democracy in Latin America’ (2005) 42 International Studies 1.

    [8] Deborah Yashar, ‘Democracy, Indigenous Movements, and the Postliberal Challenge in Latin America’ (1999) 52.1 World Politics 76.

    [9] Donna Lee Van Cott, The Friendly Liquidation of the Past: The Politics of Diversity in Latin America (2000). See also Donna Lee Van Cott, ‘Building Inclusive Democracies: Indigenous Peoples and Ethnic Minorities in Latin America’ (2005) 12 Democratization 820–837; Priti Singh, ‘Indigenous Rights and the Quest for Participatory Democracy in Latin America’ (2005) 42 International Studies 61–76.

    [10] See, eg, Mick Dodson, ‘Unfinished Business: A Shadow Across Our Relationships’ in ATSIC/AIATSIS, Treaty: Let’s Get it Right (2003) 30–40; Michael Mansell, ‘Citizenship, Assimilation and a Treaty’ in Treaty: Let’s Get it Right (2003) 5–17.

    [11] Lois O’Donoghue, ‘Customary Law as a Vehicle for Community Empowerment’ (Speech delivered at the Forum on Indigenous Customary Law, Parliament House Canberra, 18 October 1995).

    [12] Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the Northern Territory Law Reform Commission Inquiry into Aboriginal Customary Law in the Northern Territory (2003) at <> At 7 August 2006.

    [13] Report on the Expert Seminar on Indigenous Peoples and the Administration of Justice (Madrid, 12–14 November 2005) E/CN.4/Sub.2/AC.4/2004/6 (10 June 2004).

    [14] Royal Commission into Aboriginal Deaths in Custody, National Report: Overview and Recommendations (1991). See further, Chris Cunneen, ‘Aboriginal Imprisonment During and Since the Royal Commission into Aboriginal Deaths in Custody’ (1992) 19 Aboriginal Law Bulletin; Jason Behrendt and Larissa Behrendt, ‘Recommendations, Rhetoric and another 33 Aboriginal Deaths in Custody: Aboriginal Custodial Deaths since May 1989’ (1992) 50 Aboriginal Law Bulletin; Loretta Kelly, 10 Years On: The Continuing Poor Health of Indigenous Prisoners (2001) 38 Indigenous Law Bulletin.

    [15] Australian Law Reform Commission, Report into the Recognition of Aboriginal Customary Laws, Report No 31 (1986).

    [16] Council for Aboriginal Reconciliation, Reconciliation: Australia’s Challenge <> at 7 August 2006.

    [17] 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 (1997).

    [18] See, eg, Ron Brunton, ‘Betraying the Victims: The ‘Stolen Generations’ Report’ (1998) IPA Backgrounder at <> at 7 August 2006; Reginald Marsh, ‘“Lost”, “Stolen” or “Rescued”?’ (1999) Quadrant 15.

    [19] ‘Regret but No Apology for Aborigines’, BBC News (26 August 1999) at <> at 7 August 2006; Antonio Buti, ‘Unfinished Business: The Australian Stolen Generations’ (2000) 7 Murdoch University Electronic Journal of Law at <>

    at 7 August 2006.

    [20] Australian Broadcasting Corporation, ‘Crown Prosecutor Speaks Out About Abuse in Central Australia’, Lateline, 15 May 2006 at <> at 7 August 2006.

    [21] Noel Pearson, ‘Don’t Listen to those who Despise Us’, The Age (Melbourne) 26 June 2006.

    [22] Gillian Triggs, ‘Australia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1998 (Cth)’ (1999) Melbourne University Law Review 2.

    [23] Paul Keating (1992), ‘Redfern Park Speech’ (2001) Indigenous Law Bulletin 57.

    [24] John Howard, ‘Towards Reconciliation’, (Address to Corroboree 2000, Sydney, 27 May 2000).

    [25] John Howard, ‘Address to the Nation’, ABC Television, 30 November 1997.

    [26] John Howard, ‘The Liberal Tradition: The Beliefs and Values which Guide the Federal Government’, Sir Robert Menzies Lecture, 18 November 1996.

    [27] Hilary Charlesworth, Writing in Rights (2002) 39.

    [28] H Steiner and P Alston (eds), International Human Rights in Context: Law, Politics, Morals (2nd ed, 2000) 365.

    [29] Steven Curry, Indigenous Sovereignty and the Democratic Project (2004) 1.

    [30] Ibid 171.

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