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Launch of the Social Justice Report 2009 and the Native Title Report 2009

Tom Calma
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

Redfern Community Centre, Sydney

Friday, 22 January 2010

 

Good morning, I would like to begin by paying my respects to the Gadigal peoples of the Eora nation, the traditional owners of the land where we gather today. I pay my respects to your elders past and present. And thank you, Allen Madden, for your generous and warm welcome to country for all of us here at Redfern today.

Firstly let me acknowledge Bradley Deane as representative of the Attorney General; and Rita Markwell attending on behalf of the Minister for Indigenous Affairs, Jenny Macklin. Thank you also to the Attorney and his staff for ensuring that these Reports have been tabled so that I am able to launch them here today and welcome to those staff who have been able to attend. There is a lot of work that happens behind the scenes to make sure we are all able to be here today and this is a joint effort between my staff and the staff of the Attorney-General’s Department.

I acknowledge Barry Collier MP, who is attending on behalf of the New South Wales Premier, Kristina Keneally and Graeme Neate President of the National Native Title Tribunal.

Thank you to Cathy Branson, our President at the Australian Human Rights Commission for your introduction and kind words.

I would also like to acknowledge those who work in organisations or with government in the Indigenous sector, many of whom have travelled from interstate to be with us today. And most importantly, I acknowledge all of my Aboriginal and Torres Strait Islander brothers and sisters and aunties and uncles who have come today.

As Cathy mentioned, we are here today to launch the Annual Social Justice and Native Title Reports. As many of you are aware, these reports fulfill a statutory responsibility of the Aboriginal and Torres Strait Islander Social Justice Commissioner. And while this is very important, I would like to start today by reflecting on the broader significance of these reports.

The Social Justice and Native Title Reports assess and monitor the implementation of the policies and practices of Government during the report year against how they impact on the enjoyment of human rights by Aboriginal and Torres Strait Islander peoples.

But these reports are also fundamental in providing the government and other stakeholders with guidance about policies, laws and processes that are developed for us, and impact on our access to human rights, our everyday lives and our futures. They are also significant because they are not just my thoughts about these issues. They include the voices of Aboriginal and Torres Strait Islander peoples and inputs from our peak bodies and representative organisations about issues that are important to us. They promote the good and hard work being done on the ground in our communities and they provide examples of effective initiatives for our communities to develop locally. They let government know where investment is needed to make real change in our lives and our communities. These reports provide our peoples with an opportunity to participate in the governance of our lives and our communities. They have become a critical resource in Indigenous policy development and are a solid example of how we, as Aboriginal and Torres Strait Islander peoples, can access, promote and defend our collective human rights as recognised by the United Nations Declaration on the Rights of Indigenous Peoples.

It is with great pride, gratitude and a touch of sadness that I present these, the sixth and final set of reports as the Aboriginal and Torres Strait Islander Social Justice Commissioner.

As many of you are aware, my term as Social Justice Commissioner comes to an end on 31 January. And the past five and half years has been a great privilege for me to work around the country with and for my people on a wide range of issues – some of which were hard issues to deal with, while others ignited my pride as an Aboriginal man.

While there are too many to list here today, some of the highlights of my term as the Social Justice Commissioner, which were also addressed in the Reports tabled over the past five years include:

As a nation we were relieved and inspired by the Prime Minister’s Apology to the Stolen Generations. As Aboriginal and Torres Strait Islander peoples we cried with tears of sadness and joy, and we exhaled. And at this site here at Redfern in Sydney, many Australians gathered together to witness one of the greatest acts of compassion in our country’s history.

In the words of the Prime Minister in his Apology to the Stolen Generations and their descendants, ‘the time has come for our nation to turn a new page in Australia’s history by righting the wrongs of the past and moving forward with confidence to the future’.

The Apology was the first step towards creating an Australia that is inclusive and embracing of its First Peoples.

The 2009 Social Justice and Native Title Reports build on the momentum of the Apology. They consider critical issues for Aboriginal and Torres Strait Islander peoples; and they include crucial steps necessary for overcoming Indigenous disadvantage and setting equal life chances for Aboriginal and Torres Strait Islander peoples as the only acceptable benchmark.

The Social Justice Report 2009 provides a comprehensive chronology of the events that impact Aboriginal and Torres Strait Islander peoples during the reporting period. The Report also considers three substantial issues;

On the face of it, the issues of this report may look disconnected, but at their essence they all speak to the need for policies that embrace our unique cultures and identities and aim to create strong, vibrant and healthy Indigenous communities.

Justice reinvestment provides a new approach that may hold the key to unlocking Aboriginal and Torres Strait Islander people from the cycle of crime and escalating imprisonment rates. The urgency of addressing this issue is evidenced by alarming statistics that are unnecessary and unacceptable. Nationally, Indigenous adults are 13 times more likely to be imprisoned than non-Indigenous people[1] and Indigenous juveniles are 28 time more likely to be placed in juvenile detention than their non-Indigenous counterparts.[2]

In the last five years alone we as a nation witnessed two devastating examples of the ramifications of Aboriginal and Torres Strait Islander incarceration and over policing with the death of Mulrunji Doomagee on Palm Island in Queensland, which is still the subject of a coronial inquest; and on the other side of the country, the death of Mr Ward who died of heat stroke as a result of being transported from Laverton to Kalgoorlie, approximately 360 kilometres in the back of a prison van, in which the temperature rose to over 47 degrees.

Over the years and particularly in the response to the Royal Commission into Aboriginal Deaths in Custody in 1991, some worthy initiatives have been developed to address the over-representation in the criminal justice system by our people. But unfortunately, these statistics show that what we are doing is simply not working and alternative solutions are required.

Justice reinvestment is a localised criminal justice policy approach that diverts a portion of the funds spent on imprisonment to local communities where there is a high concentration of offenders. The monies that would have been spent on imprisonment are reinvested in programs and services in communities where these issues are most acute in order to address the underlying causes of crime.

Here in Australia, increasing amounts of public monies are spent on imprisonment, for minimum positive long-term return. Internationally, where justice reinvestment is being implemented, particularly in the UK and the US, imprisonment rates are dropping. For example, in Oregon in the United States, money was reinvested in well-resourced restorative justice and community service programs for juvenile offenders. This resulted in a 72% drop in juvenile incarceration rates.

Justice reinvestment is based on evidence that a large proportion of offenders come from a relatively small number of disadvantaged communities. Demographic mapping and cost analysis in the United States has identified ‘million dollar blocks’ where literally millions of dollars are being spent on imprisoning people from certain neighborhoods. For instance, in one neighborhood, ‘The Hill’ in Connecticut, $20 million was spent in one year to imprison 387 people. The Hill is disproportionately made up of low income, African Americans.

This concentration of offenders logically suggests that there should be a commensurate concentration of services and programs to prevent offending in these communities. This is an important departure from current individually focused correctional policy. Current correctional policies promote individual and group programs but provide little support for community reintegration and community capacity building.

The bottom line is that you can put an individual offender through the best resourced, most effective rehabilitation program, but if they are returning to a community with few opportunities, their chances of staying out of prison are limited.

The justice reinvestment model still retains prison as a measure for dangerous and serious offenders, but it actively shifts the focus away from imprisonment to the provision of community-wide services that build capacity within the community, to prevent people from offending and ending up in the criminal justice system in the first place. I note that the Government recently announced half a million dollars in funding to the North Australian Aboriginal Justice Agency to work with Aboriginal prisoners to stop them re-offending, and have committed to distributing the six million dollars confiscated under the Proceeds of Crime Act to community groups for crime prevention and Indigenous prisoner projects.[3]

This is a good start - but it is just a start and it will require a long term and concerted effort before we will see enduring outcomes. Justice reinvestment is as much about economics as it is about good social policy and it is a tried and tested model with positive results.

The second issue I address is also critical to building the strength and resilience of our communities and ensuring the maintenance of our culture and identity. That is the preservation and promotion of Indigenous languages. This issue also requires an urgent response because unfortunately in Australia, due to past and present government policies, Indigenous languages are critically endangered.
The endangerment of indigenous languages was reported as an issue of international concern in the recently released State of the World’s Indigenous Peoples. It is estimated that 4,000 of the 7,000 languages spoken today are spoken by indigenous peoples. However, language specialists predict that up to 90 per cent of the world’s languages are likely to become extinct or threatened with extinction by the end of the century.

In Australia, prior to colonisation, 250 distinct languages which included 600 dialects were spoken across this country.[4] 100 of these languages continue to exist, however most of them are in varying stages of becoming extinct. Today only 18 Indigenous languages are currently spoken by all generations of people within a given language group.[5] Without intervention, it is estimated that Indigenous language usage will cease in the next 10-30 years.[6]

For a country that is home to the world’s longest surviving continuous cultures, that prides itself on its cultural heritage value, and its multiculturalism, this is a serious indictment on our nation.

The loss of Indigenous languages in Australia is a loss for all Australians. Cultural knowledge that is critical to our enjoyment of this country as a nation is carried through our Indigenous languages. Where languages are eroded and lost, so too is the cultural knowledge. This in turn has the potential to impact on the health and well-being of Indigenous peoples. Addressing national priorities such as climate change will also rely on Indigenous cultural knowledge that is contained within these languages. As a result this will also affect the health and well-being of all Australians.

There is strong evidence that supports the preservation and promotion of Indigenous languages, including:

As I mentioned earlier, up until the 1970’s assimilationist and prohibitionist policies banned or discouraged Aboriginal and Torres Strait Islander peoples from speaking our languages and this has resulted in their rapid decline. As recently as 2008, our languages continue to be threatened by government policies with the Northern Territory Government introducing a policy that dismantles bilingual education. This policy makes it mandatory to teach students in English for the first four hours of the school day. By relegating Indigenous language instruction to the last hour and a half of the school afternoon, this policy effectively abolishes one of the most effective methods for keeping Indigenous languages alive in this country. It significantly reduces the ability for successive generations of our people to develop full competence in their own languages. It also takes away a serious competitive advantage that we may have in employment because many employment options for Indigenous people are based on our knowledge of our language and culture.

If you think about it – we have potential employment opportunities to work as liaison officers between our communities and the mainstream government departments – though we need to be fluent in Indigenous languages as well as English. Knowledge of our languages and culture also assists us to work in jobs such as rangers, land care specialists, tourism operators and cultural guides, and as artists who pass down cultural knowledge through weaving, painting or sculpture. You take away our language and culture and you take away some of these opportunities. Government’s need to think clearly about what it is they are trying to achieve with their policies. The policy to abolish bilingual education is in fact cultural vandalism – and it is an act which limits our life chances – rather than enhancing them.

The Australian Government has made some effort to support our languages by introducing Australia’s first national policy exclusively focused on protecting and promoting Indigenous languages – Indigenous Languages – A National Approach 2009. While this policy provides a starting point to preserving and revitalising our invaluable languages, it will not be enough on its own. State and Territory governments have to come on board.

They have responsibility for school education and they need to make sure that their policies support our languages. If they don’t take action soon, Indigenous languages will be extinct within the next few generations. I urge you – if you are able – to do whatever you can to bring this injustice out into the open. The parents of the school children who are losing bilingual education are very distressed – many of them have contacted my office. They are doing everything they can to preserve the bilingual programs but their pleas are falling on deaf ears.

This leads me to the third issue addressed in this year’s Social Justice Report, sustaining Aboriginal homeland communities. Homelands are located on Aboriginal ancestral lands with cultural and spiritual significance to the Aboriginal people who live there. There are homeland communities throughout Australia - the majority being in the Northern Territory, Western Australia and South Australia.

Homelands vary in size, composition, level of resources, and the extent of their access to basic essential services such as potable water. Some may be very small; comprising only a few families living together. Others may be expanding and developing their own economies and have populations of over a hundred people. While some homelands have grown into significant sized communities, in most cases they are smaller than townships and regional centres.

Evidence shows that homelands provide social, spiritual, cultural, health and economic benefits to their residents. They are a unique component of the Indigenous social and cultural landscape, enabling residents to live on their traditional lands which are governed through traditional kinship structures and provide leadership and local governance. Living on homelands also makes the fulfillment of cultural, spiritual and environmental obligations much easier than if residents were living off their traditional lands.

Despite these positive outcomes and feedback from Aboriginal people living on homelands to maintain support for them, Australian governments have pursued policies that remove or restrict resources and support provided to homeland communities. This effectively moves homeland residents into larger rural townships to access housing, education, health and other services.

In 2005 Amanda Vanstone, the then federal Minister for Indigenous Affairs, described homeland communities as ‘cultural museums that are too small to warrant government support’.[7] While most museums are considered to be culturally valuable and are supported by government, our homelands are not given the same priority. Failure by governments to support the ongoing development of homeland communities could further endanger the world’s longest surviving continuous culture.

History has shown that moving people from homeland communities into fringe communities in rural towns increases the stresses on resources in rural townships resulting in increased social tensions between different community groups, reduced access to healthy food and lifestyles and loss of cultural traditions, practices and livelihoods.

In response to recent significant changes to government policies in the Northern Territory to limit the resources and support for homeland communities, I have focused the discussion in the report specifically on homelands located in the Northern Territory to demonstrate and promote successful Aboriginal community development, governance and self-determination. I have also included a number of case studies from Laynhapuy Homelands Association Incorporated, the Mt Theo Outstation and Mapuru that highlight the diversity of success in these homelands.

For example:

Programs such as these are able to combine the benefits of community and culture with commercial benefits. Homelands create a space for the development of innovative strategies for economic development that comply with cultural practices and the right to self-determination.

As I have stressed throughout my term, Aboriginal and Torres Strait Islander peoples are connected to and responsible for our traditional land and waters and in turn we obtain and maintain our spiritual and cultural identity, life and livelihood from our lands and waters. Recognition of Aboriginal and Torres Strait Islander people’s ownership of our lands and waters is also critical to economic development opportunities that have become vital to our cultural, physical and emotional well-being and survival post colonisation. This recognition is formalised through the native title system and state and territory land rights regimes.

The significance of homelands and our access to, and ownership of, our traditional lands brings me to the Native Title Report 2009.
The Native Title Report 2009 considers two main issues:

As reported previously, this year’s report again examines the operation of the native title system and land rights regimes and their affect on the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples, during the 2008 -2009 reporting period. Through the native title system specifically, some successes have been achieved. Agreements have been made, mining companies are at the negotiation table with traditional owners, state governments have made some ‘concessions’, and native title has been determined across approximately 12.5% of the country.[8] However, there has been a lack of action in other areas. Prescribed Bodies Corporate are still underfunded, and the Australian Government has yet to advance its promised Indigenous Economic Development Strategy.

Examination of the current state of land rights and native title policy in Australia clearly demonstrates that there is still a lot of work to do if we are to achieve true land justice.

During my term as Social Justice Commissioner, I have consistently called on the government to reform the native title system to ensure that it is just and equitable.

In 2007, Philip Ruddock MP, the previous federal Attorney-General responded to this call by introducing initial reforms to the native title system. While much of this change has been described as only ‘tinkering at the edges’, they did start the ball rolling.
Fortunately, the current Labor Government has continued to pursue reforms to the native title system to improve its operation and effectiveness. This year, Attorney-General Robert McClelland introduced a range of amendments to the Native Title Act, some positive and some more controversial. He has also worked with State and Territory Governments through the COAG process to commit to a more flexible approach to native title and encouraged broader negotiated settlement arrangements.

These changes could prove to be the first steps toward turning the native title system into the system it was intended to be. Some changes are being made to the existing framework such as handing the management of the resolution of native title claims to the Federal Court, while others, recognising the failures and restrictions of the system, are seeking to create alternatives to the existing framework. The Victorian Alternative Land Settlement Framework is a positive example of this.

However, while the Australian Government has said it is interested in exploring further reforms to the native title system and clearly identified reform to the native title system as a strategic priority[9], it is disappointing that the government has reconsidered its prioritisation of the development of the Native Title Act’s Social Justice Package. As I have highlighted in a number of my reports, the Native Title Act was intended to be just one of three mechanisms to recognise, and provide some reparation for the dispossession of Indigenous peoples’ from our lands and waters.

The Act was to be complemented by:

While the Indigenous Land Fund was established, the social justice package has never been developed. It was here at Redfern in December 1992, that former Labor Prime Minister Paul Keating, in his famous Redfern Speech, said that there is nothing to fear, or to lose from the extension of social justice.

In preparation for the 2007 federal election, the Australian Labor Party promised to honour its commitment to implement a package of social justice measures in response to Mabo (No 2). However, the Labor Party has since removed the reference to the social justice package in its 2009 National Platform. In my view, a social justice package is integral to the effective operation of the native title system. If the government are truly committed to improving the lives of Aboriginal and Torres Strait peoples, this is a priority that must be actioned rather than ignored.

In addition to the social justice package, in order for the native title system to deliver worthwhile outcomes to Aboriginal and Torres Strait Islander peoples, the legacy of Howard’s ten point plan will need to be addressed.

For example a number of areas within the native title system could be effectively reformed to ensure that the system provides for the needs of all parties with a legitimate interest. I have discussed a number of these in this year’s report, including:

As those of you here today who work in the native title system would be aware, none of these ideas are new and some are already being considered. However, as a nation we are no longer in a position to tinker at the edges of the native title system. The problems with the native title system can only be addressed through a comprehensive reform process that is informed by Aboriginal and Torres Strait Islander peoples. In addition to the areas for reform I have raised, native title reform must be guided by human rights principles and standards. Standards such as:

Changing the culture of the native title system will not be an easy task. The potential for reform will depend on the attitudes and commitment of all involved. Reform to the native title system requires political will. It will also require a commitment on the part of governments and the corporate sector to enter into genuine partnerships with Aboriginal and Torres Strait Islander communities based on respect for our rights and the principle of free, prior and informed consent.

I believe that this has been difficult in the past due to the fact that the importance of culture and its relevance to Indigenous people’s relationship to our lands is not completely understood and acknowledged by all Australians. This is evidenced by the fact that governments continue to develop Indigenous land policy in isolation to other social and economic areas of policy. As a result, when governments try to be innovative, in many instances it is our rights to our lands and waters that are compromised.

For example, the second issue addressed in the Native Title Report 2009 is the Australian Government’s approach to land tenure reform across the country. While the five year leases imposed under the Northern Territory Emergency Response Legislation, and the Governments new policy to secure land tenure for housing through longer term leases aim to facilitate service delivery in Indigenous communities, including homelands, they effectively terminate our connection and our use, access and ownership of those lands and our ability to make decisions about our own futures. This is despite the application of the non-extinguishment principle.

I am concerned about these policies and the way they impact on Aboriginal peoples across Australia. In particular, I am concerned that these policies and their impacts are not being presented to Aboriginal and Torres Strait Islander people in a clear and transparent way. We as Aboriginal and Torres Strait Islander peoples have fought hard for our rights over our lands to be recognised. We as Aboriginal and Torres Strait Islander peoples have legitimate concerns about losing control over decision-making in our communities and these concerns are grounded in a historical legacy of control and contempt.

I call on governments to consider different approaches to land reform and land ownership and I set out principles that should underpin the introduction of any land tenure reforms or home ownership schemes. This includes providing the community with clear and appropriate information. Respect for the principle of free, prior and informed consent is at the centre of these principles.

When I started today, I highlighted some of the big ticket positive developments that the government has introduced since they were elected in 2007.

The recommendations within the Social Justice and Native Title Reports for 2009 relate specifically to promoting and strengthening Aboriginal and Torres Strait Islander people’s culture and identity. Culture and identity are central to each and every one of the rights contained in the Declaration on the Rights of Indigenous Peoples, and are central to our success as peoples seeking to overcome the disadvantage and the challenges that we face on a daily basis.

The issues that I have addressed in these two reports start to build on the framework that has been secured over the past five years. The core of these issues speak to the need for strong communities built on strong foundations.

This might be through:

Our communities, be they in remote or urban locations, are not just where we come from, but who we are. They represent our family connections, proud history and rich culture. I hope that they remain strong and can in turn sustain future generations. The Social Justice and Native Title Reports for 2009 provide some ideas and recommendations on how to do this.

As I come to the end of my term, I urge governments to listen to us and work with us. Respect our voices, our rights, our lands, our resources, our seas and our waters.

And with this being my final launch of the annual Social Justice and Native Title Reports let me again acknowledge my dedicated and talented staff, past and present, who have provided me with inspiration and energy. These reports are testimony to your research, inquiry, investigation, diplomacy and writing skills. You have fairly and respectfully represented the views of the many Aboriginal and Torres Strait Islander peoples and other collaborators that you have consulted - thank you. And thank you President Cathy Branson and Commissioner colleagues Graeme Innes and Liz Broderick for your support and encouragement during the hard times.

Finally, let me remind all Australians that human rights are for everyone, everywhere, everyday and let me again share my mantra - from self respect comes dignity, and from dignity comes hope.

Thank You.

[1] Australian Bureau of Statistics, Prisoners in Australia 2008. At: http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/F618C51B775B2CF87CA25751B0014A2D5$File/45170_2008.pdf (viewed 27 May 2009).
[2] Australian Institute of Health and Welfare, Juvenile Justice in Australia 2006-2007. At http://www.aihw.gov.au/publications/juv/jjia06-0/jjia06-07.pdf (viewed 27 May 2009).
[3] Minister for Home Affairs, Funding to stop Aboriginal Prisoner Reoffending, Media Release, 1 October 2009.
[4] Australian Institute of Aboriginal and Torres Strait Islander Studies and the Federation of Aboriginal and Torres Strait Islander Languages, National Indigenous Languages Survey Report 2005, Executive Summary. At http://www.arts.gov.au/_data/assets/pdf_file/0006/35637/nils-report-2005.pdf (viewed 3 July 2009).
[5] Australian Institute of Aboriginal and Torres Strait Islander Studies and the Federation of Aboriginal and Torres Strait Islander Languages, National Indigenous Languages Survey Report 2005, Executive Summary. At http://www.arts.gov.au/__data/assets/pdf_file/0006/35637/nils-report-2005.pdf (Viewed 3 July 2009).
[6] Australian Institute of Aboriginal and Torres Strait Islander Studies and the Federation of Aboriginal and Torres Strait Islander Languages, National Indigenous Languages Survey Report 2005, p67. At http://www.arts.gov.au/_data/assets/pdf_file/0006/35637/nils-report-2005.pdf (viewed 3 July 2009).

[7] A Vanstone, (Former Minister for Immigration, Multicultural and Indigenous Affairs), Indigenous communities becoming ‘cultural museums’, ABC Radio, AM Program interview, 9 December 2005. At: http://www.abc.net.au/am/content/2005/s1527233.htm (viewed 17 December 2009)

[8] NNTT website, Quick statistics (31 March 2009). Available at: http://www.nntt.gov.au/News-and-Communications/Facts-for-Journalists/Pages/Tips-for-Understanding-Native-Title.aspx. . Accessed on 23 July 2009.
[9] Attorney-General’s Department, Strategic Plan 2009-2010 (2009), p 3. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(C7C220BBE2D77410637AB17935C2BD2E)~AGDStrategicPlan1July2009.rtf/$file/AGDStrategicPlan1July2009.rtf (viewed 12 October 2009).