Questions and Answers about Aboriginal & Torres Strait Islander Peoples
Face the Facts 2005
- Who are Aboriginal and Torres Strait Islander peoples ?
- How many Aboriginal and Torres Strait Islander peoples are there ?
- Where do Aboriginal and Torres Strait Islander peoples live? How old are they ?
- Are Aboriginal and Torres Strait Islander peoples disadvantaged ?
- Do Aboriginal and Torres Strait Islander peoples get special treatment from the government ?
- What are the new arrangements for the administration of Indigenous affairs ?
- What is the history of government policies on Aboriginal and Torres Strait Islander peoples ?
- What is the right to self-determination ?
- What is Aboriginal reconciliation ?
- What is native title ?
- Further reading
Question 1. Who are Aboriginal and Torres Strait Islander peoples?
Aboriginal and Torres Strait Islander peoples are the first inhabitants of Australia. Old definitions based on skin colour or percentages of 'Aboriginal blood' have been replaced by modern definitions which stress ancestry and identification as the key to Aboriginal identity.
Today, the Federal Government defines an Aboriginal person as someone who:
- is of Aboriginal descent;
- identifies as an Aboriginal person; and
- is accepted as an Aboriginal person by the community in which he or she lives.
Aboriginal people comprise diverse Aboriginal nations, each with their own language and traditions and have historically lived on mainland Australia, Tasmania or on many of the continent's offshore islands. Torres Strait Islander peoples come from the islands of the Torres Strait, between the tip of Cape York in Queensland and Papua New Guinea. Torres Strait Islanders are of Melanesian origin with their own distinct identity, history and cultural traditions. Many Torres Strait Islanders live on mainland Australia.
The term 'Indigenous' is used to refer to both Aboriginal and Torres Strait Islander peoples.
The use of the term 'Indigenous' has evolved through international law. It acknowledges a particular relationship of aboriginal people to the territory from which they originate.
The United Nations High Commissioner for Human Rights has explained the basis for recognising this relationship as follows:
'Indigenous or aboriginal people are so-called because they were living on their lands before settlers came from elsewhere; they are the descendants - according to one definition - of those who inhabited a country or a geographical region at the time when people of different cultures or ethnic origins arrived, the new arrivals later becoming dominant through conquest, occupation, settlement or other means
(I)ndigenous people have retained social, cultural, economic and political characteristics which are clearly distinct from those of the other segments of the national populations.
Throughout human history, whenever dominant neighbouring peoples have expanded their territories or settlers from far away have acquired new lands by force, the cultures and livelihoods - even the existence - of indigenous peoples have been endangered. The threats to indigenous peoples' cultures and lands, to their status and other legal rights as distinct groups and as citizens, do not always take the same forms as in previous times. Although some groups have been relatively successful, in most parts of the world indigenous peoples are actively seeking recognition of their identities and ways of life.'1
A note on terminology
The 'A' in 'Aboriginal' is capitalised similar to other designations like 'Australian', 'Arabic' or 'Nordic'. The word 'aboriginal with a lowercase 'a' refers to an indigenous person from any part of the world. As such, it does not necessarily refer to the Aboriginal people of Australia.
'Aboriginal people' is a collective name for the original people of Australia and their descendants, and does not emphasise the diversity of languages, cultural practices and spiritual beliefs. This diversity is acknowledged by adding an 's' to 'people' ('Aboriginal peoples'). 'Aboriginal people' can also be used to refer to more than one Aboriginal person.
The 'I' in 'Indigenous' is capitalised when referring specifically to Australian Aboriginal and Torres Strait Islander peoples. The lower case 'i' for 'indigenous' is only used when referring to people originating in more than one region or country such as the Pacific region, Asiatic region, Canada or New Zealand. 2
Aboriginal Australians have the longest continuous living culture in the world.
410,003 people identified themselves as 'Indigenous' in the 2001 Census. 3
- 366,429 of these were Aboriginal.
- 26,046 were Torres Strait Islanders.
- 17,528 identified themselves as both Aboriginal and Torres Strait Islander.
In June 2001, 2.2% of the total population of Australia identified themselves as Indigenous. The number of people identifying themselves as Indigenous has increased by 16% since the 1996 Census. 4
Place of residence
Table 3.1: State or territory of residence of Indigenous Australians, 2001
Source: Australian Bureau of Statistics, 2001 Census: Basic Community Profile and Snapshot, Australia and all States and Territories, Canberra, 2002.
Torres Strait Islander peoples
Over half (58%) of all Torres Strait Islander peoples live in Queensland. The rest of the population live in other States, with 18% in New South Wales and 6% in Victoria. Cairns had the highest Torres Strait Islander population in Queensland (1,814 people), followed by Townsville (1,379). Within the Torres Shire, the largest Indigenous populations were recorded on Thursday Island (1558 people). Bamaga (655) and Badu Island (518) also have relatively large Torres Strait Islander populations. A majority of the people in the Torres Shire settlements are Torres Strait Islanders (74%).5
As a whole, the Indigenous population is much younger than the non-Indigenous population. For example, nearly 60% of the Indigenous population in Australia are aged under 25 compared with around 34% of the non-Indigenous population. 6
Figure 3.1: Proportion of Indigenous and non-Indigenous population in specific age groups, 2001
Source: Australian Bureau of Statistics, 2001 Census: Indigenous Profile: Australia (Catalogue No. 2002.0) Canberra, 2002;
There are clear disparities between Indigenous and non-Indigenous Australians across all indicators of quality of life. Indigenous Australians generally experience lower standards of health, education, employment and housing, and are over-represented in the criminal justice system compared to non-Indigenous people.
This disadvantage was highlighted in the Report of the Royal Commission into Aboriginal Deaths in Custody in 1991. In the Report, Commissioner Elliot Johnston QC stated that "the consequence of the history of Aboriginal people (since European settlement) is the partial destruction of Aboriginal culture and a large part of the Aboriginal population and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal and non-Aboriginal people". 7
- Life expectancy 2001:8
- Indigenous males - 56 years
- all Australian males - 77 years
- Indigenous females - 63 years
- all Australian females - 82 years
- Death rate 2001:
- The death rate among the Indigenous population was more than twice the death rate for the total Australian population. 9 The death rate for Indigenous people aged 35-54 in the Northern Territory, Queensland, South Australia and Western Australia, was five times that of the total Australian population. 10
- Infant mortality 2001:
- The infant mortality rate for Indigenous Australians (11 deaths per 1,000 live births) was twice the infant mortality rate for all Australians (5.0).11
- Causes of death 2001:
- While heart disease and cancer remain the leading causes of death for both Indigenous and non-Indigenous Australians, Indigenous people are more likely than other Australians to die from accidents, assault and self-harm (17% of Indigenous deaths compared to 6% of total deaths), and are more likely to die from diseases of the respiratory system and endocrine, nutritional and metabolic systems, such as diabetes. 12
- Hospitalisation 2001:
- 13 Indigenous people were almost twice as likely to be hospitalised for most diseases and conditions as non-Indigenous people. Hospital admissions were most common amongst Indigenous children aged under 5 years and Indigenous adults aged 25 to 34 and 45 to 54 years (23% for each age group).
- General health 2001:
- Indigenous people were nearly twice as likely to report their health as 'fair or poor' (34%) compared to non-Indigenous people (18%). Based on self-reported height and weight, Indigenous people aged 15 years and over were more likely to be overweight or obese (61%) compared with non-Indigenous people (48%). Indigenous people were more likely to report asthma as a long-term health condition (17%) than the non-Indigenous population (12%). Indigenous people were more than three times more likely to report some form of diabetes than non-Indigenous Australians.14
- Educational achievement 2001:
- The proportion of Indigenous people over 15 years who had completed Year 12 was 25% in major cities and 8% in remote areas compared with 46% and 35% respectively for non-Indigenous people. 15
- School retention 2002:
- 38% of Indigenous students continued to Year 12 compared with 76% of non-Indigenous students.16
- Higher education 2001:
- 5% of Indigenous people aged between 18 and 24 were attending university compared with 23% of non-Indigenous people.17 The number of Indigenous people aged 15-19 who were attending an educational institution in 2001 was around 19500 compared with around 900000 non-Indigenous people of the same age.18
Employment and income
- Labour force participation 2001:
- 52% of Indigenous people aged 15 and over were in the labour force compared with 63% of the total population in the same age group.19
- Unemployment 2001:
- The unemployment rate was 20% for Indigenous adults compared with 7.2% for non-Indigenous adults. This rate has improved since 1994 (when Indigenous unemployment was 27.8%) but has deteriorated since 2000 when Indigenous unemployment was 17.6%.20
- Impact of CDEP 1996:
- The Community Development Employment Projects (CDEP) is the Indigenous work-for-the-dole scheme. CDEP is not available to all Indigenous peoples. Indigenous unemployment rates rise significantly if participants in CDEP are counted as unemployed. In 2001, 7% of Indigenous people aged 15 years and over who reported their labour force status said they participated in CDEP.21
- Income 2001:
- The average weekly household income for Indigenous people ($364) was only 62% of that for non-Indigenous people ($585).22
- Home ownership 2001:
- 32% of Indigenous people own or are buying their own homes compared with 71% of non-Indigenous Australians.23
- Temporary dwellings 1999:
- An estimated 13% of Indigenous people living in remote communities live in temporary dwellings, including tin sheds, caravans and 'humpies'. 24
- Overcrowding 2001:
- 15% of Indigenous households were overcrowded by accepted Australian standards, compared with 4% of other Australian households.25
- Sewerage service 2001:
- A survey of 1,216 Indigenous communities with a population of 50 or more found that 48% had reported sewerage system overflows or leakages in the 12 months prior to the survey.26
Criminal justice system
- Adult imprisonment 2002:
- Nationally, the imprisonment rate for Indigenous adults at June 2002 was approximately 15 times that for non-Indigenous adults. Western Australia recorded the highest imprisonment rate for Indigenous people (2,400 Indigenous persons per 100,000 Indigenous people) followed by New South Wales at approximately 2,100 per 100,000. The proportion of male prisoners who were Indigenous rose from 14% in 1992 to 20% in 2002.27
Juvenile detention 2001:
- Indigenous youth aged 10 to 17 years were 19.9 times more likely than non-Indigenous juveniles to be detained in a juvenile justice centre 28
Deaths in custody 2002:
- Although Indigenous people are now less likely to die in police custody compared to 20 years ago, they are more likely to die in prison custody. From 1980-1989, 67 Indigenous people died in police custody and 39 in prison custody. From 1990-1999, 21 Indigenous people died in police custody and 93 in prison custody.29
During 2002, 69 people died in all forms of custody in Australia. Of the 69 deaths, 14 were Indigenous people. During the period 1990 to 2002, the majority of deaths (65%) occurred in prison custody, while 34% of the deaths occurred in police custody. 18% of all deaths in prison custody during this period were Indigenous. 30
- Women's imprisonment 2002:
- In 1992, 18% of all female prisoners were Indigenous. By 2002, this figure had risen to 25%. 31
- Domestic violence:
- Accurate statistics about the incidence of violence against women in Indigenous communities are scarce. However, research suggests that Indigenous women and children are more than 45 times more likely to be victims of domestic violence and more than 8 times more likely to be victims of homicide.32
Question 5. Do Aboriginal and Torres Strait Islander peoples get special treatment from the government?
Generally, Indigenous people receive the same level of public benefits as non-Indigenous people. Individuals do not get extra funding because they are Indigenous. However, specific government programs, not additional income, have been introduced for Aboriginal and Torres Strait Islander peoples because they are the most economically and socially disadvantaged group in Australia. Special programs are necessary to help overcome disadvantage. Examples of programs specifically designed to meet Indigenous needs include:
- Community Development Employment Projects Scheme (CDEP) - Indigenous work-for-the-dole.
- Aboriginal Medical Services and Aboriginal Legal Services - provide cost-free medical and legal services.
- The Indigenous Employment Programme - provides flexible financial assistance to help create employment and training opportunities for Indigenous people in the private sector.
- The Indigenous Education Strategic Initiatives Programme (IESIP) - provides supplementary funding to pre-schools, schools and vocational education and training providers to help improve educational outcomes for Indigenous students.
These programs supplement those available to the mainstream population. They are necessary because Indigenous people do not generally use mainstream services at the same rate as non-Indigenous people and because the level of Indigenous disadvantage is much more severe. Medical and legal services for low income and migrant communities are also available in Australia.
Details of spending on Indigenous education, health and housing.
Public expenditure on education for Indigenous people is 18% higher per capita than for non-Indigenous people aged 3-24 years. The higher expenditure is a result of various factors including location (delivering education in rural and remote locations is more expensive) and lower than average income for Indigenous people which leads to a greater average need for assistance to students.33
Public and private expenditure on health services for Indigenous Australians rose by at least 15% per person between 1995-96 and 1998-99. This compares with 10% per person increase in non-Indigenous health spending over the same period. However, given the comparatively poor health indicators for Indigenous people, public expenditure on health services for Indigenous people was similar to that for non-Indigenous people in low income groups. The difference in health expenditure on Indigenous and non-Indigenous people reflects differences in income level, health status and cost of delivering health services to remote communities. While Indigenous people are more likely to use state-funded health services (hospitals and community health services), Indigenous people are low users of the major Commonwealth-funded health programs such as Medicare and the Pharmaceutical Benefits Scheme. 34 In 2002, the Commonwealth Government stated it would commit around $302.7 million on Indigenous health and ageing programs during 2002-03.35
There have been a number of estimates of the amount of extra spending needed to provide the same standard of health services to Indigenous Australians as are currently provided to non-Indigenous Australians, taking into account that Indigenous Australians have greater health needs:
- In 2003, John Deeble, the architect of the Medicare system, calculated $250 million per annum extra should be spent, based on the shortfall in Medicare spending on Indigenous Australians when compared to non-Indigenous Australians. 36
- Access Economics estimated $400 million per annum extra should be spent in a report published in May 2004 37. The difference in John Deeble's and Access Economics' figure is because the latter is based on a greater estimate of Indigenous health needs. 38
- Another 2004 report by Econtech estimated the cost of extending universal primary health care to Indigenous communities would cost between $409 million and $570 million depending on the quality of service offered 39.
In 2002-03, the Government said it would spend approximately $350 million on Indigenous-specific housing and related infrastructure programs. In addition to Indigenous-specific housing programs, an estimated 22% of Indigenous households are tenants in mainstream public housing.40
Click here for further information aimed at addressing popular myths and misconceptions about government spending in relation to Indigenous Australians http://www.atsic.gov.au/news_room/As_a_Matter_of_Fact/index.asp
Question 6. What are the new arrangements for the administration of Indigenous affairs introduced by the Federal Government in 2004?
In April 2004, the Federal Government announced the introduction of new arrangements for administering Indigenous affairs from 1 July 2004.41 Under these arrangements, the Aboriginal and Torres Strait Islander Services (ATSIS) and the Aboriginal and Torres Strait Islander Commission (ATSIC) were abolished (effective from 30 June 2004 and 30 June 2005 respectively) and responsibility for Indigenous specific programs transferred to mainstream government departments and agencies.
The Federal Government established the following bodies to administer Indigenous Affairs:
- The Ministerial Taskforce on Indigenous Affairs - comprised of government ministers who set the direction for the Federal Government's approach to Indigenous affairs;
- The Secretaries Group on Indigenous Affairs - comprised of heads of federal government departments and reports to the Ministerial Taskforce;
- The National Indigenous Council - a Government appointed Board of Indigenous people to advise Government. It is not intended to be representative or to perform the role previously held by ATSIC;
- The Office of Indigenous Policy Coordination - located in the Department of Immigration, Multiculturalism and Indigenous Affairs, it coordinates federal government activity on Indigenous affairs; and
- Indigenous Coordination Centres - 27 regionally-based offices which engage with Indigenous communities at the local level to coordinate government service delivery to communities.
The new approach is based on a process of negotiating agreements with Indigenous families and communities at the local level ('Shared Responsibility Agreements') and setting priorities at the regional level ('Regional Participation Agreements'). Central to this negotiation process is the concept of mutual obligation or reciprocity for service delivery. 42 The Government has stated that the new approach also involves:
- the creation of a single budget submission across government for Indigenous affairs;
- supporting regional Indigenous representative structures;
- a focus on implementing the commitments made by the Council of Australian Governments to address Indigenous disadvantage; and
- improving accountability for mainstream programs and services.
What were ATSIC and ATSIS?
ATSIC stands for Aboriginal and Torres Strait Islander Commission. It was made up of a national Board and Regional Councils whose membership was elected by Indigenous people every three years. ATSIC was established in 1990 and was the main organisation responsible for:
- Developing programs for Indigenous people supplementary to mainstream programs and services.
- Monitoring how government agencies provide services to Indigenous people.
- Advising national, regional and local governments on Indigenous issues.
In May 2004, the Government introduced legislation into Parliament to abolish ATSIC.43 The Prime Minister stated that the Government believed 'very strongly that the experiment in separate representation, elected representation, for Indigenous people has been a failure'44.
ATSIC's National Board of Commissioners ceased to exist from midnight 23 March 2005. 45 However, ATSIC Regional Councils continued to function until 30 June 2005.
Until 2003, ATSIC was also responsible for administering Aboriginal and Torres Strait Islander programs and making individual funding decisions. From 1 July 2003, these functions were transferred to a new Executive Agency, Aboriginal and Torres Strait Islander Services (ATSIS). ATSIS was required to administer these programs in accordance with the policy directions provided by ATSIC. Under the new arrangements, ATSIS was abolished on 30 June 2004 and its responsibilities transferred to mainstream government departments and agencies.
Click here for further information on the background leading to the new arrangements in Indigenous affairs
Human Rights and Equal Opportunity Commission Aboriginal and Torres Strait Islander Social Justice Commissioner 2004Social Justice Report http://www.humanrights.gov.au/social_justice/sjreport04/ Click here for information on the new Government arrangements for delivering services to Indigenous Australians http://www.oipc.gov.au/publications/default.asp
Question 7. What is the history of government policies on Aboriginal and Torres Strait Islander peoples?
From 1788, Australia was treated as a colony of settlement, not of conquest. Aboriginal land was taken over by British colonists on the premise that the land belonged to no-one ('terra nullius'). Australia's colonisation resulted in a drastic decline in the Aboriginal population. Estimates of how many Indigenous people lived in Australia at the time of European settlement vary from 300,000 to 1 million. Estimates of the number of Indigenous people who died in frontier conflict also vary widely.46 While the exact number of Indigenous deaths is unknown, many Indigenous men, women and children died of introduced diseases to which they had no resistance such as smallpox, influenza and measles. Many also died in random killings, punitive expeditions and organised massacres.
In 1992, the premise of Australia's colonisation, terra nullius, was dismissed by the High Court of Australia in the Mabo decision49. In Mabo, the High Court acknowledged the occupation of Australia by Aboriginal and Torres Strait Islander peoples prior to European settlement.
Indigenous survivors of frontier conflicts were moved onto reserves or missions. From the end of the nineteenth century, various State and Territory laws were put in place to control relations between Aboriginal people and other Australians. Under these laws, protectors, protection boards and native affairs departments segregated and controlled a large part of the Aboriginal population. It has been estimated that the Aboriginal population during the 1920s had fallen to only about 60,000 from perhaps 300,000 or even one million people in 1788.50
In 1937, the Commonwealth Government held a national conference on Aboriginal affairs which agreed that Aboriginal people 'not of full blood' should be absorbed or 'assimilated' into the wider population. The aim of assimilation was to make the 'Aboriginal problem' gradually disappear so that Aboriginal people would lose their identity in the wider community.
Protection and assimilation policies which impacted harshly on Indigenous people included separate education for Aboriginal children, town curfews, alcohol bans, no social security, lower wages, State guardianship of all Aboriginal children and laws that segregated Indigenous people into separate living areas, mainly on special reserves outside towns or in remote areas.
Another major feature of the assimilation policy was stepping up the forcible removal of Indigenous children from their families and their placement in white institutions or foster homes.
'Stolen children' or 'stolen generations'
The history of the 'Stolen children' varies depending on time and place. Table 7.1 shows where and when Indigenous children could lawfully be taken away without their parents' consent and without a court order. Non-Indigenous children could also be removed without their parents' consent, but only by a court finding that the child was uncontrollable, neglected or abused.
Table 7.1: State and Territory laws authorising forcible removal of Indigenous children
Source: Appendices 1-7, Bringing them home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, 1997.
Where were the children placed?
Indigenous children were forcibly removed from their families and communities to the care of non-Indigenous people with the aim of assimilating them into non-Aboriginal society. In Queensland, this often meant separating the children into dormitories on reserves. In New South Wales and Western Australia, many children were trained in Aboriginal-only institutions to become domestic servants or farm labourers. Other children were transferred to orphanages and children's homes where Aboriginal and non-Aboriginal children were brought up together. In other cases, and especially after the 1940s, Aboriginal children were fostered or adopted into non-Aboriginal families.
How many children were removed?
In its 1997 report Bringing them home, the Human Rights and Equal Opportunity Commission estimated that between one-third and one-tenth of all Aboriginal children growing up during the years in which forcible removal laws operated were removed. The full scale of removals is still not known because many records have been lost.
What were the consequences of the removals?
Many members of the Stolen Generation reported during the Bringing them home Inquiry that they were forbidden to speak their Aboriginal language, they were told their parents did not want them, they experienced neglect as well as physical, emotional and sexual abuse, they received little or no education, and were refused contact with their families.
The effects of the separation from their parents and communities, being institutionalised and being abused, have been reported to impact on self-esteem, cultural identity, social skills and survival skills, developing relationships and parenting. Many members of the Stolen Generations still have not been reunited with their families. The legacy of forcible removal remains in the lives of Indigenous individuals and communities today.
In May 1967, a Constitutional referendum to include Indigenous people in the national census and to enable the Commonwealth Government to make laws on Aboriginal affairs passed with a 'Yes' vote of almost 91%.
Before 1967, Aboriginal Affairs was a state responsibility and the Commonwealth Government was only in charge of Aboriginal people in the Northern Territory. After 1967, the Commonwealth Government shared power over Aboriginal Affairs with the States.
Having repeatedly rejected Aboriginal claims to equal pay for equal work during the 1930s and 1940s, the Commonwealth Conciliation and Arbitration Commission finally granted Aboriginal stockmen award wages in 1966.51 This determination had a flow-on effect to other employed Aboriginal people nationally.
The federal Labor Government led by Gough Whitlam adopted the policy of 'self-determination' for Indigenous communities in 1972. This policy was described as 'Aboriginal communities deciding the pace and nature of their future development as significant components within a diverse Australia'. It recognised that Aboriginal people had a right to be involved in decision making about their own lives.
The federal Coalition Government led by Malcolm Fraser, which came to power in late 1975, adopted the policy of 'self-management' which focused on Indigenous communities managing the government projects and funding locally, but with little say in what projects would be created. The Hawke and Keating Labor Governments from 1983-1996 used both self-determination and self-management as key principles in their Indigenous affairs policies. The Coalition Government led by John Howard from 1996 has reverted to a policy of self-management.
In 1976, the Federal Government passed land rights law for Aboriginal peoples in the Northern Territory. Most other states also have some form of Land Rights legislation in place although the degree of control given to Indigenous peoples over the land in question differs significantly from state to state.
In the Mabo case of 1992, the High Court of Australia rejected the long-standing doctrine of terra nullius. It found that Aboriginal and Torres Strait Islander peoples who have maintained a continuing connection with their land, according to their traditions and customs, may have their rights to land under traditional law recognised in Australian law. This is native title.
Self-determination is the right of all peoples to 'freely determine their political status and freely pursue their economic, social and cultural development' (Article 1 of the International Covenant on Civil and Political Rights). 52 Self-determination is a collective right (belonging to a 'peoples') rather than an individual right. The claim by Indigenous peoples to the right of self-determination raises two questions: (1) Do Indigenous groups constitute a 'peoples'? (2) Does self-determination give indigenous peoples the right to secession (that is, to break away from an existing nation)?
The application of self-determination to indigenous people is the subject of ongoing negotiations in the United Nations. Many countries now accept that self-determination applies to Indigenous people, although they do not accept that self-determination would authorise secession, and are unwilling to formally recognise indigenous self-determination unless it is accompanied by a guarantee against secession. Indigenous peoples have responded to this concern in international negotiations by noting that international law provides protection against secession.
Most Indigenous people in Australia want self-determination within the existing nation. This would require recognition by the Government of their distinct cultures and forms of social organisation, governance and decision-making. It would mean transferring responsibility and power for decision-making to Indigenous communities so they can make decisions in relation to issues that affect them.
Reconciliation aims to promote understanding of the history of contact between Indigenous and non-Indigenous people and develop better relations for the future.53
The formal reconciliation process began in 1991 with the establishment of the Council for Aboriginal Reconciliation for a ten year period. The Council was established by legislation with 25 Indigenous and non-Indigenous members appointed by the Government. The Council was required to promote reconciliation between Aboriginal and Torres Strait Islander peoples and the wider Australian community. At the end of its ten-year period, the Council was also required to make recommendations to the Government on actions for achieving reconciliation.
The Council developed a declaration towards reconciliation, a Roadmap for Reconciliation which contains four national strategies and a final report, titled Reconciliation: Australia's Challenge, which sets out a comprehensive program of activities to address the 'unfinished business' of reconciliation. The Council's proposals relate to four areas: achieving economic independence, overcoming Indigenous disadvantage, recognising Indigenous rights and sustaining the reconciliation process.
Reconciliation Australia was established by the Council in December 2000 to carry forward the reconciliation movement.
Click here for more information on the Council for Aboriginal Reconciliation: http://www.austlii.edu.au/au/orgs/car/docrec/relevant/docbook/p4.htm Click here for more information on Reconciliation Australia: http://www.reconciliationaustralia.org/
'Native title' is the name given by Australian law to Indigenous peoples' traditional rights to their lands and waters. Those rights can range from a relationship similar to full ownership of the land through to the right to go onto the land for ceremonies or to hunt, fish or gather foods and bush medicines. To have their native title rights recognised, the Indigenous group has to prove they still have a connection with their country according to their traditional laws.
Australian law gives all other land titles priority over native title. In many cases the creation of an interest in land under western law has the effect of extinguishing any native title rights that might have existed. However, in some cases Indigenous and non-Indigenous interests in land can co-exist - for example, Indigenous people might be able to visit their country freely even though it is on a cattle station. Even in these cases, wherever there is a conflict between the two sets of interests, the non-Indigenous interest will prevail.
Native title cannot be recognised on land which is fully owned by someone else. It can only be recognised in areas like:
- Vacant land owned by the government (this is called 'Crown land').
- Some national parks and forests.
- Some pastoral leases (where the pastoralist rents a cattle or sheep station from the government without owning the land).
- Aboriginal reserves.
- Beaches, seas, lakes and rivers that are not privately owned.
How many native title applications have been successful?
As at 15 April 2005, the total number of native title determinations (decisions made on a claim) in Australia numbered 59. Of these, 39 were determinations that native title exists. 54
Table 10.1: Native title decisions by outcome and state/territory to 15 April 2005
Source: National Native Title Tribunal, 'Native title determinations by State or Territory' (website accessed 26 April 2005)
Click here to see a map of native title applications and determination areas as at 31 March 2005: http://www.nntt.gov.au/publications/data/files/National_FC_NTDA_Schedule.pdf Click here to see a map of native title determinations as at 31 March 2005: http://www.nntt.gov.au/publications/data/files/Determinations_A4.pdf
Is native title the same as land rights?
Native title is not the same as land rights. Land rights are granted through legislation whereas native title is the recognition of rights based on the traditional laws and customs that existed before white occupation. Unlike land rights, native title rights are not granted by government so cannot be withheld or withdrawn by Parliament or the Crown, although they can be extinguished by an Act of government.
A land rights grant may cover traditional land, an Aboriginal reserve, an Aboriginal mission or cemetery, Crown land or a national park. Native title only covers land on which a traditional relationship continues to exist.
Table 10.2: Australian land rights laws
Source: Pollack, D.P. (2001), 'Indigenous land in Australia: a quantitative assessment of Indigenous land holdings in 2000', CAEPR Discussion Paper No. 221, Centre for Aboriginal Economic Policy Research, Australian National University, Canberra; and pages 136-142, Native Title Report 2003, Aboriginal and Torres Strait Islander Social Justice Commissioner, HREOC,2004.
Land for Aboriginal communities or enterprises may also be purchased with money from the Aboriginal and Torres Strait Islander Land Account (formerly Land Fund) created in 1995. The Land Account was the second part of the Federal Government's response to the High Court's Mabo decision (the first part of the response being the introduction of native title legislation), in recognition of the fact that the majority of Indigenous people had been dispossessed and would be unable to regain ownership and control of their land through the native title processes. The Land Account was established to help address this issue by providing cultural, social, environmental and economic benefits for Indigenous people.
The Land Account was created by a fixed annual allocation ($121 million) from the government over 10 years to 30 June 2004. Around two-thirds of this amount has been retained in the Account and invested, with the remainder available to the Indigenous Land Corporation to fund its ongoing activities. Government allocations to the Land Account have ceased. It is expected that the work of the Indigenous Land Corporation will be funded from the investment income earned by the Land Account. 55 With the abolition of ATSIC and ATSIS, the Indigenous Land Account and Indigenous Land Corporation were transferred to the Immigration and Multicultural and Indigenous Affairs portfolio of the Federal Government. 56
Table 10.4: Indigenous Land Corporation purchases by state and territory, 1995-2002
Source: Indigenous Land Corporation, 'Indigenous Land Corporation Property Acquisition' (website accessed 10 May 2005)
Native title landmarks
1992: First recognition of native title - the Mabo case
In the Mabo case of 1992, the High Court of Australia recognised the native title rights of the Meriam people of the Torres Strait. This decision rejected the doctrine of terra nullius. It recognised for the first time that Aboriginal and Torres Strait Islander peoples who have maintained a continuing connection with their country, according to their traditions and customs, may have their rights to land under traditional law recognised in Australian law. This is native title.
1993: The Native Title Act
In 1993, the Native Title Act was passed to recognise and protect surviving native title rights throughout Australia and set up a process for settling claims and conflicts about native title. The Act:
- Established a claim process for Indigenous people seeking recognition of native title, including the establishment of the National Native Title Tribunal.
- Provided a definition of native title.
- Provided that, in relation to future developments on the land, native title would have no lesser protection than other interests in land.
- Allowed Indigenous groups claiming native title to negotiate about mining developments proposed on the land before proving their claim (the 'right to negotiate').
- Validated non-Indigenous interests that would have been invalid as a result of the recognition of native title.
1996: The question of pastoral leases - the Wik Case
In the 1996 Wik case, the High Court held that pastoral leases in Queensland do not necessarily cancel out native title rights and interests and that they could co-exist with the rights of pastoralists.
1998: The Wik amendments to the Native Title Act
In 1998, after the Wik case, the Federal Government amended the Native Title Act. The amendments:
- Weakened the 'right to negotiate' for native title claimants.
- Confirmed and validated the extinguishment of native title on a range of leases and other land tenures.
- Upgraded pastoral leaseholds by increasing the activities that could take place under the lease without having to negotiate with native title holders.
- Made it more difficult to register native title applications.
- Introduced 'Indigenous land use agreements' (ILUAs) which allow a native title group to negotiate on a range of matters about land and waters with others.
2001: Croker Island (Commonwealth v Yarmirr)
The Croker Island case recognised that native title could exist on sea country but that any native title rights that were recognised must not exclude the rights of any other person.
2002: Ward (Western Australia v Ward)
In the Ward case, the High Court found that native title is made up of a bundle of rights and that these rights can be extinguished either in part or as a whole. One way native title rights are extinguished is by the grant of inconsistent non-Indigenous interests in the same area of land. For example, the creation of a pastoral lease in Western Australia extinguishes the right of the traditional owners to exclusive possession of that land. However, it does not extinguish the rights of the traditional owners to enter the land in order to hunt or fish or perform ceremonies, because these rights can co-exist with the rights of the pastoralist. In the case of freehold, native title is completely extinguished.
2002: Yorta Yorta (Members of the Yorta Yorta Community v Victoria)
The High Court found that in order to have native title recognised, the claimant group must show that it, or its members have practised their traditional laws and customs continuously since European settlement.
Human Rights and Equal Opportunity Commission
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2004, Human Rights and Equal Opportunity Commission, Sydney, 2004.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2004, Human Rights and Equal Opportunity Commission, Sydney, 2004.
Australian Bureau of Statistics publications:
1996 Census of Population and Housing: Aboriginal and Torres Strait Islander peoples (Catalogue No. 2034.0) 1998.
2001 Census Community Profile Series: Indigenous Profile: Australia (Catalogue No. 2002.0) 2002.
National Aboriginal and Torres Strait Islander Social Survey (NATSISS) (Catalogue No. 4714.0) 2002
Hospital statistics relating to Indigenous people, Occasional Paper, 1997-98.
Kate Ross, Population Issues: Indigenous Australians (Catalogue No. 4708.0), Australian Bureau of Statistics, 15 February 1999.
Self-assessed health status of Indigenous Australians, Occasional Paper, 1994.
Productivity Commission Reports
Steering Committee for the Review of Government Service Provision Reports, Overcoming Indigenous Disadvantage: Key Indicators 2005
Steering Committee for the Review of Government Service Provision, Report on Government Services 2005 - Indigenous Compendium.
Other Indigenous health publications:
R W Edwards & Richard Madden, The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples, Australian Bureau of Statistics, 2003.
Indigenous mothers and their babies - health statistics, 1994-96, National Perinatal Statistics Unit, Australian Institute of Health and Welfare, 1999.
Publications about contact and colonial history:
Bain Attwood, The Making of the Aborigines, Allen & Unwin, Sydney, 1989.
Bringing them home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, HREOC, Sydney, 1997.
Robert Manne, 'In Denial: The Stolen Generations and the Right', The Australian Quarterly Essay, Issue 1, Schwartz Publishing, 2001.
Peter Read, The stolen generations: the removal of Aboriginal children in New South Wales 1883 to 1969, NSW Government Printer, Sydney, 1982.
Henry Reynolds, Frontier: Aborigines, settlers and land, Allen & Unwin, Sydney, 1987.
Henry Reynolds, The other side of the frontier: an interpretation of the Aboriginal response to the invasion and settlement of Australia, James Cook University, Townsville, 1981.
Henry Reynolds, Why weren't we told? A personal search for the truth about our history, Viking, Ringwood Victoria, 1999.
Lyndall Ryan, The Aboriginal Tasmanians, Allen & Unwin, 2nd Edition, St Leonards, 1997.
Keith Windschuttle, The Fabrication of Aboriginal History, (Volume One: Van Dieman's Land 1803-1847), Macleay Press, Paddington NSW, 2002.
Publications about reconciliation:
Australian Declaration Towards Reconciliation, Council for Aboriginal Reconciliation, 2000.
Roadmap for Reconciliation, Council for Aboriginal Reconciliation, 2000.
Reconciliation Australia: http://www.austlii.edu.au/au/other/IndigLRes/car/
Reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner:
On social justice: http://www.humanrights.gov.au/social_justice/sj_reports.html
On native title: http://www.humanrights.gov.au/social_justice/nt_reports.html
(Note that 2005 reports will be released in November 2005)
Report of the Royal Commission into Aboriginal Deaths in Custody:
National Report (Volumes I-V), Commonwealth of Australia, 1991.
For information about the new arrangements in the administration of Indigenous Affairs:
Office of the Indigenous Policy Coordinator: http://www.oipc.gov.au/
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report, Human Rights and Equal Opportunity Commission, Sydney.
(Note that 2005 report will be released in November 2005)
For information about CDEP:
See also, Race Discrimination Commissioner, The CDEP Scheme and Racial Discrimination, HREOC, Sydney, 1997.
For information about ATSIC:
For information about the Torres Strait Regional Authority:
For information about the Mabo Case:
Mabo No. 1: Mabo and Another v The State of Queensland and Another (1989) 166 CLR 186.
Mabo No. 2: Mabo and Others v Queensland (No. 2) (1992) 175 CLR 1.
Read about Mr Eddie Mabo, Australian Broadcasting Corporation, 1998.
For information about the National Native Title Tribunal:
For information about land rights legislation and land purchases:
Pollack, D.P. (2001), 'Indigenous land in Australia: a quantitative assessment of Indigenous land holdings in 2000', CAEPR Discussion Paper No. 221, Centre for Aboriginal Economic Policy Research, Australian National University, Canberra.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, Human Rights and Equal Opportunity Commission, Sydney. (Note that the 2005 report will be released in November 2005)
- United Nations High Commissioner for Human Rights, Fact sheet No.9 (Rev.1), The Rights of Indigenous Peoples.
- NSW Health "Communicating Positively - A guide to appropriate Aboriginal terminology", NSW Department of Health, 2004.
- Australian Bureau of Statistics, Population Characteristics: Aboriginal and Torres Strait Islander Australians 2001 (Catalogue No. 4713), 30 October 2003, Table 2.8; Census Counts, Aboriginal and Torres Strait Islander Origin 2001, p 25.
- Australian Bureau of Statistics, 2001 Census Basic Community Profile and Snapshot: Australia, 19 November 2002.
- Australian Bureau of Statistics, Population Distribution, Indigenous Australians, (Catalogue No. 4705.0), 26 June 2002.
- Australian Bureau of Statistics, Population Characteristics: Aboriginal and Torres Starit Islander Australians 2001, (Catalogue No. 4713), 30 October 2003, p20.
- Royal Commission into Aboriginal Deaths in Custody, "National Report by Commissioner Elliot Johnston" QC, AGPS, Canberra, 1991, p6.
- Australian Bureau of Statistics, Population: Article - Aboriginal and Torres Strait Islander Population.
- Australian Bureau of Statistics, Deaths, 2001, (Catalogue No. 3302.0) p20.
- Australian Bureau of Statistics, The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples, 2003 (Catalogue No. 4704.0).
- Australian Bureau of Statistics, Deaths, 2001, (Catalogue No. 3302.0) p23.
- Australian Bureau of Statistics, Deaths, 2001, (Catalogue No. 3302.0) pp24-25.
- Australian Bureau of Statistics, National Health Survey: Aboriginal and Torres Strait Islander Results, (Catalogue No. 4715.0), 2002. Note: The Survey was conducted by the Australian Bureau of statistics from February to November 2001.
- Australian Bureau of Statistics, National Health Survey: Aboriginal and Torres Strait Islander Results (Catalogue No. 4715.0), 2002.
- Australian Bureau of Statistics, Population Characteristics: Aboriginal and Torres Strait Islander Australians 2001 (Catalogue No. 4713), 30 October 2003, p49.
- Australian Bureau of Statistics, Year Book Australia, Education and Training: Article - Indigenous Education and Training, 2004. Note: apparent retention rates for full-time Indigenous secondary school students from Year 7/8 to Year 12 rose 5.9 percentage points from 1998 to 2002, compared to a rise of 3.6 percentage points for non-Indigenous students.
- Australian Bureau of Statistics, Population Characteristics Aboriginal and Torres Strait Islander Australians 2001 (Catalogue No. 4713.0), 30 October 2003, p48.
- Australian Bureau of Statistics, 2001 Census Community Profile Series: Indigenous Profile: Australia (Catalogue No. 2002.0), 2002, Table 101: Selected Characteristics by Indigenous Status by Sex (1st release processing).
- Australian Bureau of Statistics, Year Book Australia, Labour: Article - Labour Force Status of Aboriginal and Torres Strait Islander Peoples, 2004.
- Australian Bureau of Statistics, Occasional Paper: Labour Force Characteristics of Aboriginal and Torres Strait Islander Australians, Experimental Estimates from the Labour Force Survey (Catalogue No. 6287.0), 20 December 2000.
- . Australian Bureau of Statistics, Population Characteristics Aboriginal and Torres Strait Islander Australians 2001 (Catalogue No. 4713.0), 30 October 2003, p65.
- Australian Bureau of Statistics, Population Characteristics Aboriginal and Torres Strait Islander Australians 2001 (Catalogue No. 4713.0), 30 October 2003, p81.
- ATSIC Press Release, 'Home ownership still a dream for many Indigenous Australians', 5 August 2002.
- Australian Bureau of Statistics, Year Book Australia 2002, Housing: Special Article-Housing in Remote Aboriginal and Torres Strait Islander Communities.
- Australian Bureau of Statistics, The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples (Catalogue No. 4704.0), 29 August 2003.
- Australian Bureau of Statistics, Housing and Infrastructure in Aboriginal and Torres Strait Islander Communities, Australia (Catalogue No. 4710.0), 6 May 2002.
- Australian Bureau of Statistics, Year book Australia, Crime and Justice; Article- Indigenous Prisoners, 2004.
- Kate Charlton and Marissa McCall, Statistics on Juvenile Detention in Australia: 1981-2003, Australian Institute of Criminology Technical and Background Paper No.10, 2004, p 11.
- Paul Williams, Deaths in Custody: 10 Years on from the Royal Commission, Trends & Issues in Crime and Criminal Justice No. 203, Australian Institute of Criminology, Canberra, April 2001.
- Australian Bureau of Statistics, Year Book Australia, Crime and Justice: Deaths in Custody, 2004.
- Australian Bureau of Statistics, Year book Australia, Crime and Justice; Article- Indigenous Prisoners, 2004.
- Sue Gordon et al, Putting the picture together, Inquiry into response by Government agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities, Department of Premier and Cabinet (Western Australia), 2002, p46.
- Neutze et al, Public Expenditure on Services for Indigenous People: Education, Employment, Health and Housing, Discussion Paper No. 24, The Australia Institute, September 1999, pp12-13.
- Australian Institute of Health and Welfare, Improvements in Indigenous Health Expenditure, Media Release, 20 August 2001.
- Statement by the Hon. Philip Ruddock MP, Minister for Immigration and Multicultural and Indigenous Affairs, 14 May 2002, p15.
- Deeble J, Expenditures on Aboriginal and Torres Strait Islander Health 2003, Australian Medical Association, Canberra, 2003, p. 5.
- Access Economics, Indigenous Health Workforce Needs, AMA, 2004, pp. See the report.
- ibid. p. 39.
- Econtech, Costings Models for Aboriginal and Torres Strait Islander Health Services, Aboriginal and Torres Strait Islander Health Care Review: Consultant Report No.3, Commonwealth of Australia, 2004 p xi
- Statement by the Hon. Philip Ruddock MP, Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation, 'Indigenous Affairs', 14 May 2002, pp 13-15.
- Aboriginal and Torres Strait Islander Commissioner, Social Justice Report 2004, Human Rights and Equal Opportunity Commission, Sydney, 2004, p 67.
- Aboriginal and Torres Strait Islander Commissioner, Social Justice Report 2004, Human Rights and Equal Opportunity Commission, Sydney, 2004, p 67.
- Aboriginal and Torres Strait Islander Commissioner, Social Justice Report 2004, Human Rights and Equal Opportunity Commission, Sydney, 2004, p172.
- Howard, J, (Prime Minister), Transcript of the Prime Minister, The Hon John Howard MP, Joint Press Conference with Senator Amanda Vanstone, Parliament House, Canberra, 15 April 2004, pp1-2.
- Media Release, Minister for Immigration and Multicultural and Indigenous Affairs, Senator Amanda Vanstone, 24 March 2005.
- Richard Broome, 'The Statistics of Frontier Conflict', in Bain Attwood and S. G. Foster, Frontier Conflict. The Australian Experience, National Museum of Australia, Canberra, 2003, pp. 88-97.
- Council for Aboriginal Reconciliation, Valuing cultures: Recognising Indigenous cultures as a valued part of Australian heritage, AGPS Canberra 1994, p9.
- See: Aboriginal languages of Australia virtual library website and the 'Australian Institute of Aboriginal and Torres Strait Islander Studies' Aboriginal Studies Electronic Data Archive.
- Mabo and Others v State of Queensland (No.2) (1992) 175 CLR 1.
- R Broome, Aboriginal Australia, 2nd edition, Allen & Unwin, Sydney, 1994, p 174.
- Australian Trade Union Archives, Timeline website.
- See: International Covenant on Civil and Political Rights.
- Council for Aboriginal Reconciliation, Reconciliation Information Sheet 1: Building New Relationships, 1998.
- National Native Title Tribunal website, Native Title Determinations.
- Indigenous Land Fund website.
- See Office of Indigenous Policy Coordination website, New Arrangements in Indigenous Affairs.