Indigenous Law Bulletin
This is an authorised edited version of a speech by Dr Lois O'Donoghue, CBE, AM to the National Press Club, Canberra, on 29 January 1997
Gatjil Djerrkura, Chairman of ATSIC [Aboriginal and Torres Strait Islander Commission] and Patricia Turner, CEO [Chief Executive Officer] of ATSIC, members and guests of the National Press Club.
My last appearance at the Press Club was in 1992, to mark the 25th anniversary of the 1967 referendum which removed from Australia's Constitution two discriminatory references to Aboriginal people. The referendum initiated a national effort to make Indigenous people the equal--in living standards, health, education--to other Australians.
For the greater part of the last seven years I have been involved in this effort as Chairperson of the Aboriginal and Torres Strait Islander Commission. Today I would like to both look back and look forward, to review aspects of the past in light of the need for a different future.
When I spoke in 1992, I expressed a cautious optimism about the future. The establishment of ATSIC in 1990 had put Indigenous representatives in charge of policy making and funding decisions for a large part of the Commonwealth's Indigenous affairs budget. There had been a boost in funding through the Commonwealth's response to the report of the Royal Commission Into Aboriginal Deaths in Custody. A process of reconciliation had been legislated unanimously by the Federal Parliament.
My optimism in 1992 was cautious, however, because I knew how basically tenuous our position was, how dependent we were on the patronage of governments, in particular the Commonwealth Government. How national rhetoric did not necessarily translate into the reality of better conditions for Indigenous communities on the ground. How the Commonwealth's activity in Indigenous affairs was a veneer that conveniently hid the inaction of other levels of government which had primary responsibility for providing the means of well-being in Indigenous communities--health services, municipal infrastructure, education, diversion from the justice system.
But, most of all, I knew how uniquely contentious Indigenous affairs was, how relentless the scrutiny.
Whether or not we knew it then, the national consensus that had overwhelmingly carried the 1967 referendum was breaking down, popular support for Indigenous programs retreating. If an easy-going tolerance is a hallmark of the Australian character, then Indigenous Australians seemed more and more to call forth the opposite.
At the core of this hostility lies a dispute about history. Many of today's Indigenous Australians see themselves as survivors. We base our identity in part on reminding other Australians that this country was built not just on egalitarianism and hard work, but also on theft and murder.
Over the last 30 years, government effort to raise Indigenous living standards has served to highlight the extent of our disadvantage, rather than remove it. But it has helped to bring about a renewal of our culture, and a raising of our political voice.
By the 1990s the concept of reconciliation was needed. Mainstream Australia was beginning to think that it had invested enough in Aboriginal Australia with little return, and we were making demands with little hope of satisfaction.
Like many Indigenous people, I was at first cynical about reconciliation. It seemed like another long abstract word. Genuine reconciliation would have to be predicated on our receiving two sets of rights--our rights as citizens and our rights as the original occupiers of this land. Citizen rights relate to living conditions, the provision of services other Australians take for granted, equality of opportunity. Indigenous rights relate to our claims over land, and to have special status as the First Australians.
There was always a danger that reconciliation would remain a fairly abstract exercise, but, just one week after I last spoke here, we were given a very powerful form of reconciliation from an unexpected quarter--not from politicians, but from the legal system.
On 3 June 1992, the High Court brought down its judgment in Mabo and Ors v the State of Queensland [(1992)  HCA 23; 175 CLR 1]. This judgment changed fundamentally our position within the nation. It reached back in time and said that Australia's imported legal system, the common law, had always recognised our title to our land, in theory if not in practice. But coming so late in Australia's history, this pronouncement came with many qualifications. The judges held that native title had been validly extinguished over much of the continent.
Wik is a logical and just extension of Mabo. The recent Wik judgment has resolved one of the questions left unanswered by the original judgment--did native title survive on land subject to pastoral lease? The Mabo judgment, however, broke one standoff, but created others. It raised the stakes. Native title couldn't be unilaterally extinguished because we were protected by the same laws that protected other Australians' property interests and by the Racial Discrimination Act [1975 (Cth)].
Many saw this as a case of unwarranted special rights rather than historically-based equal rights. The Native Title Act [1993 (Cth)] is a compromise between different and potentially conflicting positions. It represents a carefully constructed balance of interests. It is far from being a caving in to the Indigenous position. Nevertheless, the nation passed a crucial test and reached an historic national settlement.
To be at that negotiating table was a very exhilarating experience and I regard the outcome as one of the highlights of my career. Now, those who have always opposed native title are wanting to pull the Act apart, a topic to which I will return later.
As you will recall, the Keating Government agreed to a three-stage response to the High Court's decision on native title, encompassing not just the Native Title Act, but an Indigenous Land Fund and a social justice package. ATSIC and the Reconciliation Council consulted with our communities on social justice, and produced reports detailing a comprehensive Indigenous agenda, based on the two themes of citizen rights and Indigenous rights. We thought that native title had given us the leverage to achieve at least part of this agenda, and the native title settlement had opened the way for other negotiations with Indigenous Australians.
During this period, ATSIC played a crucial role as a means of expressing an Indigenous point of view. ATSIC was born of the idealism of Minister Gerry Hand and given to Indigenous Australians as a means of achieving self-determination within the institutions of government. It was undoubtedly a move in the right direction, but not an unmixed gift.
Over the last seven years, the Commission has struggled heroically to make its unwieldy structure work. The original 60 Regional Councils have been reduced to 35, plus the Torres Strait Regional Authority. It was given a difficult charter, to marry a bureaucracy with Indigenous politics and decision-making. It has grappled vigorously with the issues of accountability that arise naturally from having to service a small but very dispersed population, a population that is also culturally distinct and more often than not educationally disadvantaged.
ATSIC has always known its own inherent vulnerability as an Indigenous-run organisation in a very exposed area of government. New systems have been developed to track participants in the Community Development Employment Projects scheme, ATSIC's largest program, for which the Commission has been awarded unqualified accounts by the Australian National Audit Office for the last three years.
ATSIC's second largest program, Community Housing and Infrastructure, has been recast, recognising that spreading the funding thinly across the continent was not going to make appreciable inroads into an estimated $4 billion dollar deficit in housing and infrastructure in Indigenous Australia.
ATSIC's innovative Health Infrastructure Priority Projects scheme concentrates on large-scale environmental health projects that will make a measurable difference to living standards in targeted communities. In this scheme ATSIC is using an outsourced national program manager, and is thus embracing private sector skills and modern management approaches.
The Commission's comparatively virtuous record, however, cannot contend against a powerful national mythology that says ATSIC is a failure, and directly responsible for the fact that my people remain the most disadvantaged Australians. To blame ATSIC is very convenient, but, as I have argued before, real progress is dependent on our breaking away from this way of thinking, on acknowledging the extent of the need in Indigenous Australia and the sums that might be required to meet it.
ATSIC exists mainly to top up the responsibilities of mainstream government. Its budget cannot cater for every need in Indigenous Australia, though its visibility as the principal Indigenous agency makes it the focus of expectations it cannot possibly meet. Any money spent in Indigenous affairs is subject to extraordinary scrutiny, but other Australians are either ignorant or complacent about the fact that many mainstream interest groups receive benefits from government. Farmers and miners receive more than the ATSIC budget as a fuel rebate. The Department of Veterans Affairs disburses about $6 billion a year on veterans' issues, while the Commonwealth spends less than $1.5 billion on Indigenous issues.
I do not begrudge these facts. I just want to point out that these important comparisons are rarely made.
Recently, sections of the press and politicians have been trying to track down what has happened to the
$400 million allocated by the Commonwealth in response to the Royal Commission Into Aboriginal Deaths in Custody. The question is worth asking since deaths in custody are increasing. But it was $400 million over five years and it was spread across a great many programs and quite a few government agencies. It is a salutary thought that $400 million might be spent with no appreciable effect, not because of administrative incompetence, but because of the sheer scale of the initial problems. Was this amount ever enough?--especially as it is impossible to get an account of what the States have spent, even though they administer Australia's various criminal justice systems.
Last year saw a convergence of some of the worst currents of populist thinking on these matters. The new Government made Indigenous affairs, and the accountability of ATSIC, the subject of some of its first actions, as announced at the Prime Minister's first Canberra press conference. There, Mr Howard talked in terms of Australian people's alarm at an `apparent haemorrhaging of public funds'. The Government seemed to be in the business of deliberately blackening ATSIC's name, and by endorsing popular perceptions adding fuel to the so-called `race debate'.
In the event the Government's Special Auditor predictably found little corruption in the Indigenous organisations he examined, but a great need for training and suitably qualified staff. The Government's two key words were `accountability' in relation to ATSIC and `workability' in relation to the Native Title Act. There was a marked discomfort with many of our terms, with the concepts of Indigenous rights that had been given free expression in the wake of the Mabo judgment. The social justice reports were to be shelved.
The Government was not relaxed even with the concept of `self-determination' for Indigenous people, which has been Commonwealth policy since 1972. The Prime Minister's first pronouncements on Indigenous affairs talked about moving away from a `politically correct' agenda. A Minister was appointed who on his own confession knew nothing about the portfolio. The Government's emphasis would be on our citizen rights--our right to have equality in areas such as health, education, housing, employment, etc.
It is of course extremely difficult to quarrel with this agenda, and there were many cries of disingenuous outrage when we suggested that the Government wanted to take something away from us. But of course they did--and that was our sense of our past, our claim to have special rights. They were asking, in effect, for a new form of assimilation.
The Prime Minister, a defender of the heroic version of Australian history and of mainstream values, is, I am sure, sincere in his desire to see us benefit equally in what he considers a great country. But he leaves no room for our equally legitimate reading of Australia's past.
Aboriginal people look to the past for several reasons--because it validates our claims in the present, and from another sense of grievance, a collective remembering of what was done to us, including what was done to us in the name of assimilation.
In asking for savings of $470 million in the ATSIC budget, but quarantining the Community Development Employment Project (CDEP) and community housing and infrastructure, the Government knew that it was cutting disproportionately from what the Prime Minister described as ATSIC's `political' programs--programs that were to do with culture and identity, but also those that funded enterprises, provided legal aid, supported women's initiatives, programs run for the most part through Indigenous organisations. The Board was left with few options, but the Government has since had the dishonesty to criticise ATSIC for the choices forced on it in the budget.
The Prime Minister and the Minister expressed impatience with the Human Rights and Equal Opportunity Commission's [National] Inquiry Into the Separation of Aboriginal [and Torres Strait Islander] Children from Their Families, casting doubt on the Government's commitment to address any recommendations from that enquiry. They obviously saw it as a picking at the sores of history, which would get us nowhere.
But asking us to give up our politics and our history is asking for a sort of assimilation. And just as importantly it is discounting the causes of our present situation. It is using the fact of our disadvantage to undermine our political claims; it is suggesting that we should abandon our politics to pursue the practical problem of our well-being. That we should just get on with it, in short.
Given all of this reductiveness, we challenged the Government to give their policies a name. Senator Herron duly obliged in his Lyons Lecture, which he represented as the distillation of what he had learned in his journeys around Indigenous Australia, his visits to the `real' people. `Self-determination' was to become `self-empowerment', even `self-help'. The Minister even talked about our pulling ourselves up `by our bootstraps'. Economic development was to be the key to progress in Indigenous affairs.
These philosophies are obviously attractive to conservative politicians, and though the Minister may have gone on a personal journey of discovery, from the point of view of those long engaged in this area, he was just re-inventing the wheel. Economic development has presented itself as an obvious way out of welfare dependence for many years. There have been economic development programs since the 1960s.
For some communities it has been possible. Recently the Jawoyn people of Katherine have been celebrating their success with enterprises based on mining and the unique attractions of Katherine Gorge, which--thanks to the Northern Territory Land Rights Act [Aboriginal Land Rights (NT)Act 1976 (Cth)]--they own. Economic development might be more difficult for other communities, who have remained living in areas precisely because these areas have been of no commercial value to other Australians.
Above all, the basis of Jawoyn success has been access to land. There is a certain irony therefore in a Government preaching economic development with one side of its mouth and going all out to diminish our rights under the Native Title Act with the other. It is meaningless to urge economic development on people who have been stripped of their rights.
As last year unfolded, and as it became obvious that the Government was not looking to ATSIC for advice on these issues, my sense of alienation became very personal. This was all the more remarkable because I have always been regarded, and at times criticised, as a moderate. I have always favoured coming to terms, finding a workable accommodation.
Soon after the Government was elected, I had put on the table certain proposals for a reform of ATSIC's structure, aimed at removing what I saw as the inherent conflict of interest whereby Regional Councillors made decisions on funding for organisations in which they might be personally involved. I wanted to see elected representatives concentrate on policy issues, not the funding of individual projects. I and others in ATSIC were also concerned about the proliferation of Indigenous organisations, and the need to rationalise service delivery. We had long-standing concerns about the accountability of a few prominent organisations.
I have no time for a minority strain of Indigenous thinking which says that because everything has been taken away from us, we have a licence to rip off the system. But the Government's confrontationalist handling of these accountability issues made rational debate all but impossible.
When later in the year, the Government came up with the idea of using the army to fix water supplies in Indigenous communities, I found myself right out on a limb. Almost everybody thought this was not a bad idea, but they should have been asking why these basic services hadn't already been provided. And asked the question of the right level of government. To me it seemed a mere headline-grabbing trick that was masking the intolerable reality of the nation's continuing failure to deal with these issues in any systematic or effective way.
Having talked a great deal about the past, including the immediate past, let me now look to the future--but always with our eyes on the past and properly attentive to the lessons it might teach us.
I am speaking at a particularly significant time, 3 days after Australia Day when the nation goes through a ritual acknowledgment of the fact that 26 January is a day of celebration for some, and of mourning for others. The Wik judgment has again placed Indigenous issues at the forefront of national politics. Indigenous deaths in custody will be the subject of national meetings in February and May. The report on the Stolen Generations will be tabled fairly soon. In May we'll be celebrating the 30th anniversary of the 1967 referendum, and a National Convention will review progress halfway through the reconciliation process. We are also at an historical watershed because, as a nation, we have got to put the sins of 1996 behind us.
To begin with, the Government must adopt and not confront ATSIC. The Commission now has a new Chairman and new Board. Obviously I wish them well, and don't mind the thought that my departure might assist the Board's relations with the Government, that a new Chairperson is required for new times.
The Prime Minister and the Minister are on the record as saying that ATSIC is here to stay. The importance of ATSIC is that it represents a resource for Indigenous people to pursue the issues they regard as a priority. Without a resource base to use to pursue legal cases, discussion and consultation, and partnership with the States, I do not believe that the Indigenous voice would be heard so clearly.
We need a voice within the institutions of government, and not just an activist voice outside. ATSIC could become a vehicle for our proper accommodation within the nation, for the achievement of both our citizen rights and our Indigenous rights.
To do this, however, ATSIC will have to go on adapting, both to make its original model more workable and to take account of alternative models for Indigenous self-determination, including regional models. ATSIC has always been of necessity a dynamic organisation, and must continue to be so.
The Government for its part must broaden its ideology and arrive at a more informed analysis of why we remain the most disadvantaged Australians. This should be followed by a concentration of government will and effort, and a rigorous regime to make the States and Territories more accountable. They must do more than just tinker with the terminology, and give us a double dose of accountability. In terms of the Government's own agenda--housing, education and, in particular, health--a number of major budget initiatives are needed, otherwise the Government will eventually stand condemned by its own commitments.
Though the Government has little sympathy with the Indigenous rights agenda, it needs to come to terms with the social justice reports, as important expressions of Indigenous aspirations. It might do them well to read them. The Prime Minister in particular must recognise that the tradition with which he overwhelmingly identifies--you could call it the Anglo-Saxon liberal tradition--puts a high value on tolerance and the accommodation of diversity.
Mabo and Wik were delivered to us by that tradition. The paradox of Wik is that mainstream Australia is caught in the thrall of its very own laws. Four of the 7 High Court judges were convinced that the common law justly protected the Wik peoples' right to their land, even though it was subject to a pastoral lease.
Native title will continue to be the most important arena in which the reconciliation process is played out. Native title and the Wik judgment are about co-
existence--they are the embodiment of reconciliation and, properly handled, may go a long way to delivering us the future we seek. Native title is by definition local. Meeting the challenge of native title will have real and positive consequences for the patchwork of communities that makes up Indigenous Australia.
Last year we in ATSIC had a great deal of trouble getting the media, and by extension other Australians, to consider our objections to the proposed amendments to the Native Title Act. We contended that Indigenous rights would be wound back, that we were being consulted maybe, but not negotiated with, that the amendments were in themselves very complex and unlikely to deliver certainty.
However, it appeared that people were generally accepting the Government's and industry's concerns about the `workability' of the Act, without asking whether this had in fact been proven.
Now the Wik judgment has again raised the stakes, and it must be realised that, as in 1993, the just course is to be found by following sound principles and negotiating a settlement when principles conflict. Certainty is an important principle--for industry, for holders of Crown grants, and for us. There should be certainty for all, but certainty which takes account of the principles of equality, of non-discrimination, and of protection of common law rights.
The Wik judgment need not be regarded as a source of alarm, but as a great and creative opportunity, an opportunity to break out of a national impasse on Indigenous issues. The divide between Indigenous and non-Indigenous is the most fundamental divide in multi-cultural Australia. All immigrant communities have come to partake of what was built on our dispossession. Reconciliation still seems a long way off. The Governor-General has just reminded us that the appaling health of Indigenous Australians is a national tragedy. It is our greatest equity issue.
But there seems to be a general and growing weariness with Indigenous claims to fairness, and indications that governments will go on making what are basically token efforts to solve problems they scarcely believe can be solved.
Aboriginal people are realising that much of our rhetoric has worn out. Repeating the slogans of the seventies may be emotionally satisfying, but it does not bring results at the negotiating table.
Nevertheless, these issues continue to agitate a great many Australians--just read the opinion pages, or listen to talkback radio. Parliamentarians are agitated whenever Indigenous legislation comes into the house. It sets all records for amendments and tortuous debate.
We cannot lose the will to resolve these issues, because they will not go away. But tackling them half-heartedly or high-handedly will be a recipe for continuing failure. I believe that solutions are at hand. But they will require determination and patient effort, negotiation and compromise, imagination and true generosity.