Indigenous Law Bulletin
By Tom Calma.
The Aboriginal and Torres Strait Islander Social Justice Commissioner is required to monitor and annually report to the Attorney-General on the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples. This is done through the annual Social Justice Report and Native Title Report prepared by the Commissioner, the most recent of these being tabled in Parliament on 30 April 2009.
The Social Justice Report 2008 looks at what is needed to improve Indigenous human rights protection, remote Indigenous education, healing and health equality and sets out some key steps that governments can take over the next 18 months to progress a new agenda for Indigenous affairs.
Indigenous Australians – indeed all Australians – need better rights protection in the legal system to ensure that the courts and parliamentarians have human rights at the forefront of their thinking.
Over the past 200 years, Aboriginal and Torres Strait Islander peoples have repeatedly called on governments to formally recognise their human rights and to protect them from racial discrimination.
However, Australia’s legal system has enshrined very few of the rights contained in international human rights treaties which cover civil and political rights and economic, social and cultural rights.
The end result is a legal system that offers minimal protection to human rights and a system of government that has failed to seriously address the human rights challenges that Indigenous peoples have faced in the past and those which confront them today.
Now is the time to remedy this. The Government’s human rights consultations are currently underway so it is a perfect time to create a comprehensive and protective human rights framework for Indigenous Australians.
Another challenge faced by Indigenous peoples and discussed in the report is access to education in remote Australia. There are very large gaps in education services for remote Australia and many Aboriginal and Torres Strait Islander students in these regions receive a part-time education in sub-standard school facilities – if they receive any service at all. As a result, their English literacy and numeracy skills are often well below other Australian students.
The report highlights the fact that no accurate information is currently available in this regard; this means we cannot assess whether remote Indigenous students have reasonable access to pre-school, primary and secondary school services in their region.
It is time to assess the availability of education services in remote Australia and to ensure that quality education is available when the population warrants it. A number of specific measures to begin this are outlined in the report.
The Social Justice Report 2008 also addresses healing.
We must now move beyond the Apology to achieve healing for Indigenous peoples, but it is important to take time to get the foundations right. Experience shows that genuine, sensitive and constructive community engagement will ultimately lead to better policy and more positive outcomes for individuals and communities.
Finally, the report gives an account of the major outcomes achieved by the Close the Gap campaign. It discusses the crucial next step of developing a comprehensive, long-term and properly-resourced national plan of action to achieve Indigenous health equality – and to do it in genuine partnership with Indigenous peoples.
The Native Title Report 2008, which was also tabled on 30 April 2009, focuses on two topics.
Firstly, the Report provides an overview of changes to native title law and policy, and considers the implications of various court decisions during the reporting period of 1 July 2007 to 30 June 2008.
Specifically, the Report focuses on the Blue Mud Bay, Noongar, Rubibi
and Griffiths cases, which highlight particular human rights issues for
Aboriginal and Torres Strait Islander peoples, including:
• compulsory acquisition of lands where no other interests in the land exist
• extinguishment of native title rights and interests
• legitimacy of elements of traditional law and custom
• ever-present issues of connection and continuity.
The report considers other policy announcements made throughout the period, and makes recommendations for improving the native title system. The Report argues that these changes should be enshrined in legislation to ensure that the rights of Indigenous peoples are fully protected and not swept aside when they prove convenient.
Secondly, the report explores the issues of climate change, water resources and Indigenous knowledge. All of these could have significant consequences for Indigenous Australians due to culture, where land and water are central to the physical and spiritual wellbeing of Aboriginal and Torres Strait Islander peoples.
The potential impacts of climate change on Indigenous communities across the globe has been recognised in international human rights law, forums and covenants such as the 7th session of the United Nations Permanent Forum on Indigenous issues and the Declaration on the Rights of Indigenous Peoples.
The report discusses the direction of the Federal Government’s policies on climate change, water and the protection of Indigenous knowledge, and considers what this might mean for Aboriginal and Torres Strait Islander peoples. This exploration is grounded by two case studies that foreshadow a grave future for Indigenous peoples’ land, life and sustainability if climate change and water issues are not properly addressed.
The report also looks at the fact that Indigenous stakeholders to date have largely been excluded from the development of climate change and water policies. It stresses that Indigenous peoples’ intrinsic relationship with land and natural resources makes it essential for Indigenous peoples to be involved in the policy process. Importantly,
Indigenous peoples, who have the smallest ecological footprints, should not be asked to carry the heavier burden of adjusting to climate change.
Finally, the report considers how the impacts of climate change pose a major threat to the rights of two different Indigenous communities. In particular, it examines how the rights of Torres Strait Islanders may be impacted by the predicted rise in sea levels, increase in severe weather events, and a rise in temperature. If these predictions eventuate, whole communities may lose their lands, rights to water, food, life, health and culture.
It also examines the impact of the existing water management and water policies on Aboriginal communities around the Murray-Darling basin, whose ways of life are being jeopardised due to rapidly declining water levels.
In conclusion, there is much room for improvement. The Native Title Report 2008 provides over 30 recommendations to Government, suggesting how it might better realise the rights of Aboriginal people and Torres Strait Islanders.
Both reports and other materials such as community guides, media releases and feedback forms are accessible online at <www.humanrights.gov.au>. Hard copies of the reports are available for purchase by contacting Australian Human Rights Commission’s Publications Unit at <email@example.com>.
Tom Calma is the Aboriginal and Torres Strait Islander Social Justice Commissioner.
 United Nations Permanent
Forum on Indigenous Issues, Report on the Seventh Session (21 April – 2
May 2008), Economic and Social
Council Official Records Supplement No. 23,