Social Justice Report 2000: Chapter 2: Reconciliation and human rights
Social Justice Report 2000
Chapter 2: Reconciliation and human rights
Introduction
Reconciliation - the challenge ahead
The role of the past in the reconciliation process
Indigenous disadvantage as historically derived
False assumptions abou the relationship between Indigenous and non-Indigenous Australians
Human Rights and reconciliation
The meaning of equality - embracing diversity and difference
Indigenous disadvantage and 'practical reconciliation'
Self - determination and effective participation: 'within the life of the nation'?
a) Self - determination does not amount to a right to succession
Conclusion
In May I asked the following question in relation to the reconciliation process:
Will we, as a nation, take this opportunity to challenge the fundamental contradiction that lies at the heart of our society? For on the one hand we are a nation that prides itself as a defender of human rights and as a model democracy. Yet on the other hand we are a nation built on the exploitation and dispossession of Aborigines and Torres Strait Islanders. [1]
This will be how we assess the success or otherwise of the reconciliation process in years to come. The reconciliation process has the potential to be as significant, and difficult, as the process that led to the joining together of the states into one indissoluble federation in 1901. It challenges us to adapt the structures of society in ways that ensure that first nation peoples can participate fully, be welcomed and have our cultures respected. Integral to this process is an acknowledgement of the wrongs of the past and an acceptance of the need for a restructured relationship. Such a relationship must involve the full recognition and respect for the human rights of all Australians, including Indigenous peoples. This proposition will be self-evident and uncontentious to many. Yet it no doubt causes consternation for others. In this chapter I explain the challenge that reconciliation creates for Australia, and the importance of recognising the human rights of Indigenous people to this process. I argue that not only is such recognition integral for reconciliation to be lasting and meaningful, but that it also enriches our national identity as a tolerant and diverse nation.
Reconciliation - the challenge ahead
By the time this report is publicly available, the 10-year term of the Council for Aboriginal Reconciliation will have ended. These 10 years have seen Indigenous issues become indelibly etched on the national consciousness. The wider Australian community has become aware of a history that was previously only considered orthodox by Indigenous communities. A series of events, particularly the reports of the Royal Commission into Aboriginal Deaths in Custody, the recognition of native title and the documenting of the impact of policies of the forcible removal of Indigenous children from their families, have exposed the foundational myths of our nation's history. At the end of the decade, these events have successfully shaken loose the 'great Australian silence' [2] and left the nation at a crossroads, in a state of uncertainty.
In May 1991 the report of the Royal Commission into Aboriginal Deaths in Custody revealed a complex and devastating picture of the effects on Aboriginal people of dispossession, colonisation and institutional racism. The report condemned the paternalistic, assimilationist policies of the past, stating that:
The great lesson that stands out is that non-Aboriginals, who currently hold all the power in dealing with Aboriginals, have to give up the usually well-intentioned efforts to do things for or to Aboriginals, to give up the assumption that they know what is best for Aboriginals ... who have to be led, educated, manipulated, and re-shaped into the image of the dominant community. Instead, Aboriginals must be recognized for what they are, a people in their own right with their own culture, history and values. [3]
Partly in response to the findings of the Royal Commission, the Council for Aboriginal Reconciliation (CAR or the Council) was established in June 1991, with the objective of 'the transformation of Aboriginal and non-Aboriginal relations in this country.' [4] The Council was established with bipartisan support in the Parliament and was seen as the machinery to begin the long process of reconciliation. It was clearly accepted at the time that reconciliation could not be achieved during the life of the Council, which would end on 1 January 2001. [5]
The establishment of the Council was followed in 1992 by the High Court's decision in Mabo [6], which rejected the assertion that Australia was terra nullius (or land belonging to no-one), and found that the common law of Australia recognises rights of Indigenous people to land [7] flowing from their continued occupation and usage. As Justice Peter Gray has noted, Mabo 'made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure, and possibly, with respect to other aspects of life and death as well'. [8]
The Mabo decision was a turning point in the relationship between Indigenous and non-Indigenous Australians. It rejects the foundational myths of Australia's settlement and condemns the brutality of the colonisation process. As Justices Deane and Gaudron commented, in relation to an early conflict between settlers and a particular Aboriginal clan, the process of colonisation saw:
the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame ...
The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices. [9]
In its response to the Mabo decision, the federal government accepted that Australia's first nations people have suffered grievous harm, and that they have a legitimate entitlement to appropriate redress. At the time, the forms of this redress identified by the government were for legislation that regulated, and in certain instances prevented, the exercise of native title (the Native Title Act); the establishment of a land fund to provide redress to those Indigenous people unable to establish native title; and a package of social justice measures to address the dispossession of Indigenous people.
Legislative amendments and clarification in subsequent judicial decisions have greatly diminished the potential scope of native title since Mabo. The quest for certainty (by both the legislature and the courts ) [10] has limited its transformative potential by more easily finding extinguishment of native title. But this by no means provides a finalisation of these issues. As Justice Peter Gray notes, the process of native title recognition is:
in truth, [an] inquiry ... as to whether the non-Indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities incompatible with the continuing existence of Indigenous entitlements. The entitlements continue to exist in Indigenous law, despite any 'extinguishment' or 'impairment'. [11]
Mabo identified the existence of a grave injustice, even if the recognition of native title has since developed in ways that may ultimately prove incapable of providing appropriate redress.
In relation to the remaining aspects of the government's response to Mabo, the Indigenous Land Fund continues to operate on a moderate scale. Despite widespread consultation by the Aboriginal and Torres Strait Islander Commission (ATSIC) and CAR with Indigenous people across the country, the Social Justice Package has never materialised. Upon its election in 1996, the Howard government indicated that it would not provide an additional package of measures to address the consequences of dispossession, but would instead focus on redressing Indigenous disadvantage in the key priority areas of health, housing, education and employment. This focus, and its expression through the catchcry of 'practical reconciliation', is discussed below.
In 1997, the Human Rights and Equal Opportunity Commission released Bringing them home, the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. Much like the recognition of native title, the exposure of the public to the impact of policies of forcible removal, as documented in Bringing them home, has compelled the nation to face the history of treatment of Indigenous people.
These key events have ensured that at the end of the first decade of the formal process of reconciliation, we find ourselves unable to take the easy road and ignore or forget the past. As Milan Kundera has noted, 'forgetting ... is absolute injustice and absolute solace at the same time' .[12] Such solace is no longer an option. In many respects, this has been the great advance of the past decade. As a society we have begun - belatedly - to challenge the myths of settlement, which had previously operated as 'a self-constructing form of repression' . [13]
The challenge of reconciliation is how we now respond to the reality of our shared history. In acknowledging the past will we, in the words of Justices Deane and Gaudron, 'retreat from injustice'? The difficulty of doing so cannot be underestimated. But as I stated in the Social justice report 1999:
The re-empowerment of Aborigines and Torres Strait Islanders ... involves challenging myths upon which the Australian nation was built .... As the belated recognition of native title demonstrates, however, the task will grow increasingly more difficult until it is faced. There is no possibility that it will simply go away. [14]
As HC Coombs stated in 1979, in the context of discussing the necessity for a treaty with Indigenous Australians, what is now required from Australian society is 'an unprecedented tolerance for uncertainty' [15] in order to accommodate a just and fair reconciliation for all Australians.
The role of the past in the reconciliation process
We used to treat history as an 'objective' knowledge of past events that were largely immune from reinterpretation; history was the past, and we could do little about it. In the more distant past, history was differently controversial, a largely factual (and relatively uninspiring) winners' history. Increasingly, however, we recognize the growing elasticity of history and that it is anything but fixed. More recently, as history has become increasingly malleable, it has simultaneously become more central to our daily life. It informs our identity more intimately today, and being subject to interpretation, it has also become a space for contesting perspectives ... History changes who we were, not just who we are. In this sense history has become a crucial field for political struggle ...[16]
Having exposed foundational myths of settlement in Australia, is history of any further relevance to the process of reconciliation? I submit that it is in the following crucial ways:
- In explaining the present disadvantage of Indigenous people;
- By creating a series of false assumptions about the relationship between Indigenous and non-Indigenous people, the remnants of which are still relevant today; and
- In explaining the tension that exists today between the aspirations of Indigenous and non-Indigenous people concerning the legitimacy of the structures of society.
Indigenous disadvantage as historically derived
The historical reasons for Indigenous disadvantage can be summarised under the following main headings : [17]
- Dispossession: Prior to British occupation, Aboriginal and Torres Strait Islander peoples 'developed a mosaic of communities and groups with rich and enduring cultures centred on an intimate relationship with the land and sea ... Dispossession and dispersal have destroyed much of Aboriginal and Torres Strait Islander societies ... [and] many Indigenous communities and individuals have little or no stake in the economic life of the nation other than what Governments may provide' ; [18]
- Exclusion from mainstream services: Up until the late 1960's, many Indigenous Australians were excluded from mainstream services, creating 'a significant legacy of inequality in areas such as education, health, housing and infrastructure' ; [19]
- Recent inclusion: In combination with exclusion from services such as education, access to welfare has 'unintentionally, and paradoxically, created poverty traps from which it is hard to escape' ; [20]
- Past and inter-generational poverty: Low income has prevented the accumulation of capital and investment, leading to inter-generational poverty;
- Location in rural and remote areas: A higher proportion of the Indigenous population lives in rural and remote areas where there are few economic opportunities and service delivery is disproportionately expensive; and
- Demography: The large and multi-generational nature of Indigenous households creates dependency ratios and a higher economic burden than in non-Indigenous families. Similarly, the Indigenous population's structure is more akin to that of a developing nation, with population growth outstripping that of the general Australian population, and with a young age structure. [21]
Each of these factors has implications today for attempts to redress Indigenous disadvantage. Social research conducted by CAR in relation to the documents of reconciliation found:
Many Aboriginal and Torres Strait Islander people live day after day with the awareness that they are a dispossessed people. It is shown to them in the racist way in which they perceive they are treated by many non-Indigenous people in a wide variety of circumstances, in the material poverty of their lives and the lives of their extended families and their general communities, and in the way they are discriminated against in employment, in the way they are housed and in their lack of access to health and education services as good as those available to non-Indigenous people.
For many, the sense of dispossession is reinforced by their own experience of being forcibly taken from their families, or by the stories that they hear from their families of killings and other sufferings inflicted on them by those they call the invaders or the colonists.
Individuals within Indigenous community, as might be expected, have reacted in many ways to this sense of dispossession. Some have brushed it aside and got on with their lives. Some have been deeply wounded, and have fought a difficult fight to overcome its effects on them. Some have been permanently damaged. None has escaped untouched, except perhaps individuals who have buried their Aboriginality: yet the fact of denial of part of their heritage itself may be seen as a price they have paid. [22]
A striking illustration of the importance of recognising the historically derived nature of Indigenous disadvantage is the Hawke government's Aboriginal Employment Development Policy (AEDP). Introduced in 1986, the program sought to move Indigenous people beyond welfare dependency towards economic independence. It had as its objective Aboriginal employment equity by the year 2000. [23] Clearly that target has not been met. [24] As CAR and the Centre for Aboriginal Economic Policy Research (CAEPR) have noted:
The AEDP highlighted the problems of seeking statistical equity without recognising the deep-rooted structural causes of the low socio-economic status of Indigenous Australians and without basing targets on accurate demographic data ... applying the principle of equality and setting statistical targets must be both geographically and culturally informed ... Governments need to be realistic about what can be achieved, in light of the highly intractable nature of the problem, and careful in their use of statistics ... There is a very real danger that perceptions of continued policy and program failure can do considerable harm to the argument for proactive government programs to address Indigenous needs. [25]
False assumptions about the relationship between Indigenous and non-Indigenous Australians
Since contact in 1788, the perspectives of the colonisers have prevailed over, and in some instances actively excluded, those of first nations peoples in Australian society. The result has been that the relationship between Indigenous and non-Indigenous people has been grounded in the values, beliefs and cultural assumptions of the settler society. These assumptions have manifested through laws, policies, practices and institutions based on the perceived cultural superiority of non-Indigenous structures.
Two examples clearly illustrate the destructive impact of this dynamic - the non-recognition of native title prior to 1992 and the forcible removal of Indigenous children from their families.
The non-recognition of native title prior to 1992 depended upon the existence of the profoundly racist doctrine of terra nullius. This doctrine, as applied in the Australian context, was premised on the cultural superiority of Europeans. Justice Brennan noted in Mabo:
The facts as we know them today do not fit the 'absence of law' or 'barbarian' theory underpinning the colonial reception of the common law of England ... Yet the supposedly barbarian nature of Indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land, as Lord Sumner speaking for the Privy Council said in In re Southern Rhodesia (60) (1919) AC 211, at pp 233-234:
'The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.'
As the Indigenous inhabitants of a settled colony were regarded as 'low in the scale of social organization', they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown's sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein, because, as Stephen C.J. said, there was 'no other proprietor of such lands'. [26]
Similarly, as Bringing them home noted, policies of forcible removal of Aboriginal and Torres Strait Islander children from their families had at their core the belief that Indigenous culture was inferior to that of the mainstream society. Policies of 'merging' and 'absorption' were based on the belief, often genuinely held, that the best interests of 'part-Aboriginal' children would be served by their removal from their families, and separation from their Indigenous identity. [27]
Assumptions of culturally superiority are still reflected in contemporary debate about the impact and appropriate response to forcible removal policies. While there is wide acknowledgement of the harm caused by these policies, a significant feature of current debate is the assertion that the intention of the policy makers (and those implementing the policies) at the time was 'beneficial' or 'benign'. [28]
The result is that attention has been directed to the bona fides of policy makers of the time, by asking 'did policy makers of the day believe that they were acting in the best interests of Indigenous children?' Policy makers of the time were, of course, operating wholly within the then existing cultural norms, which gave expression to the perceived racial inferiority of Indigenous people. The crucial inquiry, therefore, is correctly stated as whether removal policies were premised on assumptions about the cultural inferiority of Indigenous people which predetermined that the best interests of the child, and of the wider society, would best be served by removing the child from their family, community and culture.
The current debate about forcible removal policies has meant that we have been unable to transcend a dialogue grounded in the beliefs and assumptions that underpinned society at the time the policies were in place. It amounts to a continuation, albeit in a more diluted and subtle form, of the cultural assumptions of the past.
The legitimacy of institutions in Australian society today
This lack of respect for, and the failure to recognise the value of, Indigenous cultures permeates the design of the institutions of society and government. The Canadian Royal Commission into Aboriginal Peoples noted (in the Canadian context):
The culture and values of the mainstream are [also] recognized in the institutions of ... society, but Indigenous cultures and values are not. In this way, the colonization of Aboriginal nations has become an institutionalised reality. [29]
Accordingly, the Royal Commissioners identified as fundamental to a new relationship between Indigenous and non-Indigenous people, a rejection of the principles upon which the relationship had been founded over the previous 200 years, and the need for an understanding of the place of Indigenous peoples in society and the reflection of this understanding in the institutions of society.
Recognising that the cultural assumptions of the past have been integral to the building of the institutions of mainstream society today is perhaps one of the most difficult challenges for the reconciliation process. At issue is the legitimacy of these structures, for how can Indigenous people participate fully and equally through the structures of a society that does not accord respect to Indigenous values and customs?
The challenge is to recognise this contradiction, and commit ourselves to building societal structures that are inclusive and accommodate Indigenous aspirations and cultures.
Denying the past
In the reconciliation debate it has been said that it is not relevant or fair to relate events of the past to the disadvantage and discrimination of today. This refusal to accept the relevance of the past underpins arguments that the current generation of Australians should not be held responsible for events of the past, as well as the view that a reliance on history is a way for Indigenous people to avoid accepting responsibility and taking control of their own lives.
This view presents the past as disjunctive or disconnected from present circumstances. In treating the past in this way, it fails to 'recognise the broader, systemic nature of Indigenous disadvantage' and operates to 'absent the government from its position of responsibility' . [30]
Deborah Bird Rose has criticised this approach as it manipulates concepts of time in order to evade responsibility:
Whether idealistic or complacent, the idea of disjunction can be deployed to evade responsibility.The logic is to declare the present disjunctive with the past, and then assert that all the unpleasant and demanding social facts of today really belong in the past, or to declare that the present is about to be transcended and that we will soon live in a period that is disjunctive with our 'now'. This practice of 'now' deflects us away from the present. It allows us to turn our backs on current social facts of pain, damage, destruction and despair that exist in the present through our own agency, but that we will only acknowledge as our past.
For example, when politicians discuss the suffering by Aboriginal people today as a result of past policies of separating families, they assert that our responsibilities do not extend to the people of today because the wrongs exist only in the past. In declaring the past to be disjunctive, we declare it to be something finished and unchangeable, and therefore outside our responsibility. [31]
Rose warns that such denialism can amount to:
a facile manipulation of responsibility, which I refer to as 'tunnel vision': what we deplore is held to be almost already in the past, and what we desire is held to be almost already achieved ... visions of the future enable us to sidestep present responsibility while understanding ourselves in an imaginary state of future achievement ... [32]
The denial of a relevant connection between the past and the present is relied upon by those who argue that there should not be a national apology for the past treatment of Indigenous people [33] or more specifically in relation to policies of forcible removal. [34] An apology is presented as if it is backward looking, somehow perpetuating the past when what we should be doing instead is moving 'forward together for the benefit of all Australians' . [35] This misunderstands the purpose of an apology. [36] The former shadow minister for Aboriginal and Torres Strait Islander Affairs, Dr Michael Wooldridge, explained this in the parliamentary debate on the Council for Aboriginal Reconciliation Bill 1991:
One of the most moving speeches that I heard in my time as Shadow Minister for Aboriginal Affairs was ... when Bishop Malcolm - an Anglican bishop in northern Australia, an Aboriginal man - got up at the end of the dinner and gave a very moving speech about his hopes and aspirations for the future. They were quite simple. They were not hopes and aspirations that looked to the past at all; they were hopes and aspirations for the future. He said, 'All that Aboriginal people want is for someone to say 'sorry'.' We cannot undo the past. We have to look to the future. The first essential step in that is just simply saying 'Sorry'.[37]
Further, as Sir William Deane has noted:
It should, I think, be apparent to all well-meaning people that true reconciliation between the Australian nation and its Indigenous peoples is not achievable in the absence of acknowledgment by the nation of the wrongfulness of the past dispossession, oppression and degradation of the Aboriginal peoples. That is not to say that individual Australians who had no part in what was done in the past should feel or acknowledge personal guilt. It is simply to assert our identity as a nation and the basic fact that national shame, as well as national pride, can and should exist in relation to past acts and omissions, at least when done or made in the name of the community or with the authority of government. Where there is no room for national pride or national shame about the past, there can be no national soul. [38]
The opposition to an apology can also be seen as an example of cross-cultural misunderstanding. Qualitative research conducted for the Council for Aboriginal Reconciliation shows that many Indigenous people believe that 'non-Indigenous Australians comprehensively misunderstand what Indigenous Australians mean when they talk about ... matters' [39] such as an apology and ownership of land. Many non-Indigenous people see an apology as about apportioning guilt and establishing some form of 'liability'. This is not how Indigenous people value an apology:
Despite their sense of loss and dispossession, many people in the Indigenous community have a generosity of spirit which is palpable. While some say that they would find it hard to forgive the non-Indigenous community for what they and their people have suffered ... many, perhaps the vast majority (although we cannot categorically assert this) can forgive. They say they cannot forget, but they can forgive ...
There were four strands to the thinking of Indigenous people on (the question of an apology):
First, it means acknowledging that what happened in the past did happen and that the denial of it must stop.
Second, it means acknowledging that the wrongs of the past were truly wrong.
Third, that this past - wrongs and all - must be taught as part of a full and true Australian history.
Fourth, the matter of the word 'sorry':
- It is not about monetary compensation or damages, which are seen as white people's constructs.
- It is not about today's people taking personal responsibility but about acknowledging that wrong was done and expressing sorrow about it. Indigenous people say they know that the forebears of many recent arrivals had nothing to do with what happened, and that today's descendants of early colonists cannot assume personal responsibility for what their forebears did ... [40]
'Renewing' the relationship
To state that recognition of the past is essential for meaningful reconciliation does not mean that we should be constrained by it. We are not 'prisoners of the past, locked forever in the same historical postures, with the same attitudes, grievances, suspicions and prejudices' . [41] Similarly, it is important to recognise that throughout 'our intertwined history there is good and bad, enlightenment and ignorance, joy and great sadness, pride and shame' . [42]
For this reason, reconciliation must be seen as a process of 'renewal' rather than of 'starting again' or the creation of a completely new relationship between Indigenous and non-Indigenous people. The concept of renewal was elaborated on by the Royal Commission into Aboriginal Peoples in Canada, and has formed the basis of the process of reconciliation in Canada:
The concept of renewal expresses better the blend of historical sensitivity and creative initiative that should characterize future relations among Aboriginal and non-Aboriginal people in this country. It would be false and unjust to suggest that we start entirely anew, false and unjust to attempt to wipe the slate clean, ignoring both the wrongs of the past and the rights flowing from our previous relationships and interactions ... If the Aboriginal and non-Aboriginal people of Canada are not embarking on a journey entirely afresh, as strangers and neophytes, neither should we travel with all the accumulated baggage of the past on our shoulders, or assume that we know how to deal with all the challenges awaiting us along the road. [43]
The Canadian Royal Commission recommended that attempts to renew the relationship between Indigenous and non-Indigenous Canadians should be guided by the following four, inter-related principles. [44]
i) Mutual recognition. Non-Indigenous people should recognise that Indigenous people are the original inhabitants of the nation and have distinctive rights and responsibilities that flow from that status. Indigenous people should recognise that non-Indigenous Canadians are also of this land and have strong ties and affections here. Mutual recognition has three dimensions to it: equality; co-existence; and recognition of Indigenous self-government.
ii) Mutual respect. Respect for the unique position of Indigenous peoples, and more generally for the diversity of peoples and cultures which make up Canada, is central.
iii) Sharing. A relationship of sharing requires that the partners recognise each other's basic rights, including self-government and rights to equality as peoples. It must also involve respect for the respective cultures and institutions of each partner. Meaningful sharing requires measures to be taken to redress Indigenous disadvantage, as a relationship built on sharing, as equals, is not possible under conditions of poverty and dependence. The sharing relationship should also take a form that enhances, rather than diminishes people's capacity to contribute to the whole. Transfers that perpetuate a relationship of dependency, such as welfare, should not be seen as a long term solution.
iv) Mutual responsibility. Transforming the colonial relationship, which has descended into one of ward and guardian, into a relationship of true partnership. Due to the present unequal relationship, this requires the securing of mechanisms of governance and an independent economic and resource base (rather than welfare) by/for Indigenous peoples.
These principles have since been adopted by the Canadian federal government as forming the ethical basis of negotiations for a renewed relationship between Canadian institutions of government and Indigenous peoples. [45]
Two key concerns have emerged from this analysis of the continued impact of the historical treatment of Indigenous people in Australia, which must be addressed if there is to be a renewal of the relationship between Indigenous and non-Indigenous Australians. The first is the lack of recognition and respect for Indigenous cultures and values. Throughout our history there has been:
an alarming virulent dynamic that has persisted on the non-Aboriginal side, enabling it to reject the legitimate status of who and what the Aboriginal people are, what we represent and what rights and interests we might enjoy. [46]
Related to this dynamic is the imbalance of power between Indigenous and non-Indigenous people. Factors such as landlessness, poverty and disadvantage across a range of socio-economic indicators, render many Indigenous people unable to participate fully and effectively in Australian society. In order 'to build a fair and prosperous future in which we can all share' [47] we must commit to restoring Indigenous people to a position of full equality in Australian society.
Human rights and reconciliation
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 1, Universal Declaration of Human Rights
It is not possible to talk meaningfully about reconciliation, and the transformation of relationships between Indigenous and non-Indigenous Australians that it aims for, without reference to human rights. As the preamble to the Universal Declaration of Human Rights states, 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace'. The treatment of Indigenous people throughout Australia's history has not respected these basic principles of humanity. The factors discussed above have violated the recognition of the inherent dignity of Indigenous Australians and of their equal and inalienable rights in Australian society.
Principles of a renewed relationship - mutual respect, recognition, responsibility and sharing - are also premised on the equal enjoyment of human rights by all citizens of a society, Indigenous and non-Indigenous.
For many, the proposition that reconciliation must be based on full respect for the human rights of Indigenous and non-Indigenous Australians alike will be uncontroversial and possibly even trite. But for others, it is a cause of consternation. Some fear that the recognition of Indigenous rights would be a threat to national unity by creating 'separate rights' and giving Indigenous people a privileged position in our nation's future. [48] For some, these fears even extend to concerns about secession and threats to the territorial integrity of Australia. As a consequence it is often argued that reconciliation must provide 'unity' and confirm the 'sameness' of all Australians; that it must not be 'divisive' by providing 'additional' benefits to Indigenous people; and that it should focus on 'practical' measures and outcomes.
In this section I will argue that these fears are unwarranted and are not sustainable on the basis of human rights principles. I will address these concerns in the following groupings:
- The meaning of equality, and human rights justifications for embracing diversity and difference;
- Addressing disadvantage and 'practical reconciliation'; and
- The meaning of self-determination and effective participation.
The meaning of equality - embracing diversity and difference
Reconciliation is unity in diversity ... Unity is not conformity. God created us all. We are not 'rubbish people'. We have a law: it must be recognised ...[49]
Elder, Elcho Island, Northern Territory
The principles of non-discrimination and equality before the law are among the most basic principles of civil society. Yet there is no clear understanding in the broader Australian community as to how these terms relate to the reconciliation process. Social research for the Council for Aboriginal Reconciliation found that there is a strong commitment across Australian society to 'equal treatment', but sharply differing views as to what the consequences of this commitment are. [50]
A popular view of equality is that people should be treated identically. On this view, reconciliation is about 'sameness' and must not result in different or 'special' treatment for either Indigenous or non-Indigenous Australians. At its extreme, this view sees different treatment for Indigenous peoples as a threat to national unity or as promoting 'separate rights'.
The federal government, in its response to the Australian declaration towards reconciliation, reflects this view. On the day the declaration was publicly released by CAR, the Prime Minister released his preferred version of the declaration. It replaced the wording 'we desire a future where all Australians enjoy their rights, accept their responsibilities, and have the opportunity to achieve their full potential' with the wording 'we desire a future where all Australians enjoy equal rights, live under the same laws and share opportunities and responsibilities according to their aspirations' .[51] The Minister Assisting the Prime Minister on Reconciliation, in a press release on the same day, also noted that the government had 'reservations about the strategy to promote recognition of Indigenous rights over and above those enjoyed by other Australians' . [52]
But this view of equality, however popular, does not reflect reality. The view that everybody should be treated the same overlooks the simple fact that throughout Australian history Indigenous people never have been. As I highlighted in the earlier parts of this chapter, Indigenous people have been treated as racially inferior to Europeans, and as a consequence have been dispossessed, marginalised and excluded from mainstream society. In later years we were allowed to participate in mainstream society if we behaved 'more like white people'. Similarly, prior to 1967 we were not counted as Australians for the purpose of the Census. As recently as the 1960's many Indigenous people were denied the vote and basic entitlements such as welfare that were available to all other Australians.
The failure to provide us with the same opportunities as the rest of society in the past means that to now insist on identical treatment will simply confirm the position of Indigenous people at the lowest rungs of Australian society. Demands for identical or 'sameness' of treatment are tantamount to 'keeping us in our place'.
There are two factors that must be taken into account to facilitate the equal participation of Indigenous people in Australian society.
First, there must be an acknowledgement of the historically derived nature of Indigenous disadvantage, and of the requirement to adopt remedial measures to provide Indigenous people with equality of opportunity. Such measures are necessary and fair so that Indigenous people can 'catch up'. Sir William Deane has commented:
there will be no true reconciliation until it can be seen that we are making real progress towards the position where the future prospects - in terms of health, education, life expectancy, living conditions and self-esteem - of an Aboriginal baby are at least within the same area of discourse as the future prospects of a non-Aboriginal baby. How can we hope to go forward as friends and equals while our children's hands cannot touch? [53]
I discuss the human rights obligation to adopt remedial measures to redress Indigenous disadvantage further below.
Second, for Indigenous people to be able to participate in Australian society as equals requires that we be able to live our lives free from assumptions by others about what is best for us. It requires providing a space for the recognition of our values, cultures and traditions so that they can co-exist with those of mainstream society. It requires respecting our difference and celebrating it within the diversity of the nation.
Recognising difference in this way is not tantamount to separatism. Indeed, such recognition is entirely consistent with the promotion of the universality of human rights, which 'reinforces and protects cultural diversity' [54] rather than negates such diversity. As the vision statement for the World Conference on Racism, to take place in 2001, states:
Instead of allowing diversity of race and culture to become a limiting factor in human exchange and development, we must refocus our understanding, discern in such diversity the potential for mutual enrichment, and realize that it is the interchange between great traditions of human spirituality that offers the best prospect for the persistence of the human spirit itself. For too long such diversity has been treated as threat rather than gift ...[55]
Human rights treaties to which Australia is a party support this approach. The obligation on Australia to provide equality before the law and to guarantee the exercise of rights and freedoms on a non-discriminatory basis [56] has been interpreted as requiring that we deal with 'problems of discrimination in fact' not just discrimination in law. [57]
Under this approach, not every difference in treatment in society will constitute discrimination, if the criteria for such differentiation can be justified as legitimate under the particular treaty. The Committee on the Elimination of Racial Discrimination has recognised that measures that seek to protect the culture and identity of Indigenous peoples may constitute legitimate differential treatment and therefore be non-discriminatory. The Committee has recognised that Indigenous peoples worldwide:
Have been, and are still being, discriminated against, deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources ... Consequently the preservation of their culture and their historical identity has been and still is jeopardized. [58]
Due to this continued inequality the Committee has emphasised that the International Convention on the Elimination of All Forms of Racial Discrimination places obligations on nations to take all appropriate means to combat and eliminate discrimination against Indigenous peoples, and has called on nations to:
a) recognize and respect Indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation;
b) ensure that members of Indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on Indigenous identity;
c) provide Indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;
d) ensure that members of Indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent;
e) ensure that Indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and practice their languages. [59]
Recognition of the unique cultures and traditions of Indigenous Australians is integral to progressing our national cohesiveness on another level: it is about respect. Respect for other people, and of the total environment (the land, water, animals and so forth), is fundamental to Indigenous value systems. The lack of respect for Indigenous cultures by the non-Indigenous community can have a devastating effect on the self-worth and self-esteem of many Indigenous people:
culture is not merely some ornamental aspect of an individual's existence that can readily be dispensed with or displayed on ceremonial occasions, but is integral to the self-concept and social functioning of individuals and the communities of which they form a part. [60]
As one Aboriginal elder stated during social research by CAR on the documents of reconciliation:
Make a statement about it, that is nice ... What I will judge you on is how you treat me. I don't care about your statements anymore. I have had those statements all my life ... it is not in the talking, it is in the acting, it is how you treat me ... so treat me and then we start feeling like I am part of a team here. [61]
Indigenous disadvantage and 'practical reconciliation'
[T]his House ... reaffirms the central importance of practical measures leading to practical results that address the profound economic and social disadvantage which continues to be experienced by many Indigenous Australians.
Motion of Reconciliation, House of Representatives and the Senate, 26 August 1999
Much has been said of the appalling levels of disadvantage suffered by Indigenous Australians. It has led one commentator to note that in Australian society there are the rich and the non-Indigenous poor, and then there is Indigenous Australia. [62] Public perceptions of Indigenous disadvantage tend to revolve around two competing dynamics. There is a clear moral concern to ensure that no one, Indigenous or non-Indigenous, lives a life of such disadvantage. There should be equal opportunity to participate in Australian society. Yet on the other hand there is a growing impatience with the continuation of such disadvantage, which has proven to be more intractable than many had thought.
This impatience manifests as frustration at the perceived lack of achievement, or in the suggestion that Indigenous people must somehow be at fault because of the persistence of the disadvantage (the lack of progress being blamed on 'waste' and perceived lack of accountability of Indigenous organizations ), [63] a growing intolerance to commitments being made at the highest levels to concrete measures to redress such disadvantage, and in more extreme cases, a return to discredited views which suggest that the only way to improve the situation of Indigenous peoples is for them to assimilate into mainstream society.
Social research conducted by the Council for Aboriginal Reconciliation found that such intolerance and frustration is particularly felt by those members of the community who themselves are living in poverty or struggling to keep out of poverty. They are people who also feel marginalised from society and are resentful as a result. [64]
A concern that I have previously expressed about programs which seek to redress Indigenous disadvantage is that there is insufficient understanding that Indigenous disadvantage is fundamentally an issue of human rights. Approaches to redressing such disadvantage must be conceived of within a rights framework for them to be effective. Instead, however, the focus in recent years has been around the notion of 'practical reconciliation', which treats the recognition of rights and the overcoming of disadvantage as unrelated and different agendas.[65]
'Practical reconciliation' emphasises the importance of addressing Indigenous disadvantage in key areas of health, housing, employment and education. It is uncontroversial that making progress in these areas is crucial to meaningful reconciliation. Yet what 'practical reconciliation' also does is to conceive of these four priority areas as the 'real issues', with other concerns such as recognition of rights to land and culture, and self-determination being 'symbolic' and not of practical benefit. [66] Talk of 'practical reconciliation' asserts moral authority to shut down debate about the importance of proceeding to address disadvantage on the basis of rights by presenting them as something that are merely desirable or aspirational, but not connected to the real issues at hand. Rights are seen as a distraction from the real task on which the government is focused.
What this does is maintain the situation where Indigenous people are subject to the beneficence and good intentions of government. This does not change the unequal basis of the relationship between Indigenous and non-Indigenous people, and thereby leaves Indigenous people disempowered. Addressing this situation is what Noel Pearson means when he talks of 'our right to take responsibility'. It is about a movement from welfare dependency to the recognition of basic rights, from dependence to autonomy, and from government assistance to power. [67] As I stated in my report last year, 'in calling for a move away from welfare dependency to economic empowerment there is little acknowledgement that integral to this shift is the empowerment of Indigenous Australians through the full recognition and equal enjoyment of their human rights' . [68]
An essential component of this empowerment is assuring the effective participation of Indigenous people in decisions that affect them. I discuss this requirement and the meaning of self-determination further below. For now, it is sufficient to note that there is a growing acknowledgement of the importance of the crucial role of the involvement of Indigenous communities and organizations in the design and delivery of services. As the House of Representatives Standing Committee on Family and Community Affairs noted in their recent report on Indigenous health, Health is life, there are:
two major prerequisites that will need to be satisfied before there can be any significant improvement in the health and well-being of Indigenous Australians. First, the Commonwealth has to adopt a much more central and active role in the coordination, planning, delivery and monitoring of health and related services for Indigenous Australians. Secondly, the Indigenous community has to be allowed to play a far greater role in those same areas. [69]
As a consequence, the report canvasses a range of options for building the capacity for Indigenous community control, including mechanisms for adequate resourcing, the pooling of all health funding on a regional basis for allocation by the community, and the need for additional funding by the Commonwealth to achieve this. [70]
Human rights principles also provide benchmarks by which to assess the adequacy and appropriateness of the government's response to redressing disadvantage. Importantly, a human rights approach makes it explicit that redressing Indigenous disadvantage is not merely something that is desirable, but is a matter of obligation in order to guarantee a free and equal society.
As I noted above, the principles of equality and non-discrimination allow for the adoption of remedial or 'special' measures. Such different treatment is not considered discriminatory. The rationale for such measures is that historical patterns of racism entrench disadvantage and more than the prohibition of racial discrimination is required to overcome the resulting racial inequality. Special measures are therefore remedial provisions that have the objective of raising a sector of society from its position of disadvantage. Such measures do not lead to separate rights, as they are only sustainable for so long as the group remains disadvantaged.
Closely linked to special measures is the obligation to progressively realize the full recognition of rights. The International Covenant on Economic, Social and Cultural Rights (ICESCR) requires that:
Each State party to the present Covenant undertakes to take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures. [71]
This requires that deliberate, concrete steps be taken, which are targeted as clearly as possible to the full recognition of rights on a non-discriminatory basis. [72] It also requires that States move as expeditiously and effectively as possible to achieve equality. At all times, States must provide a minimum core level of enjoyment of rights, so that this principle of progressive realization does not become meaningless. States must demonstrate that they are making every effort to use all resources that are available to them in order to satisfy these minimum obligations as a matter of priority. [73]
I expressed concern in the Social justice report 1999 that the gross disparity between Indigenous and non-Indigenous Australians clearly indicates that the enjoyment of rights in Australia is not provided on a basis of equality or in a non-discriminatory manner. Similarly, the young age structure of the Indigenous population creates significant policy issues for redressing Indigenous disadvantage over the next twenty years - with so many young people entering workforce age, there is the very real prospect that Indigenous unemployment, for example, will dramatically increase in the coming decade. This creates challenges for government in meeting its obligation to progressively realize the non-discriminatory enjoyment of rights. Further, the extent of Indigenous disadvantage raises concerns as to whether Australia is meeting its core minimum obligations by making every effort and using all available resources. [74]
What these concerns indicate is that despite the rhetoric of 'practical reconciliation' it is difficult to see that redressing Indigenous disadvantage has been elevated to a sufficient level of priority, through the establishment of clear commitments and timeframes to do all that is necessary to achieve reductions in the level of disadvantage faced by Indigenous people. The concern I have is that while governments continue to highlight their commitment to redressing Indigenous disadvantage and quote the record high levels of expenditure in support of this, the broader community will be increasingly impatient with the lack of results.
The questions that we must ask from a human rights perspective are first, is the gap between Indigenous and non-Indigenous people closing? And consequently, are we doing enough to overcome or reduce the level of disadvantage or are we merely doing enough to 'manage' it? The Canadian Royal Commission into Aboriginal Peoples provides a striking illustration of the benefits of adopting a rights-based approach to overcoming rather than merely managing Indigenous disadvantage. Their Commissioners argued that the current approach to Indigenous disadvantage results in two forms of 'social cost' to the nation:
Social costs fall into two broad categories: costs associated with the economic marginalisation of Aboriginal people, and costs incurred as governments attempt to address social problems through remedial programs. As a group, Aboriginal people do not participate fully in the Canadian economy. They produce and earn less than an equivalent number of other Canadians. By any realistic standard, the contribution of Aboriginal people to the Canadian economy is much less than it could and should be. More than 150,000 Aboriginal adults do not know the satisfaction of earning an adequate income and being economically independent. As a result, the wealth they could potentially produce is not being realised. The value of production and the income forgone is a continuing cost that can never be recovered ... Half the cost of forgone production is shifted to governments and is thus borne by all Canadians. Governments collect less tax revenue than they would if Aboriginal people earned adequate incomes, and they pay out more in social assistance, other income support payments, and housing subsidies.
The second category of social costs consists of the large amounts allocated to coping with social problems - in other words the extra cost of government expenditures on remedial programs. If health and vitality were restored to Aboriginal communities, these expenditures could be reduced. [75]
This is the 'cost of the status quo'. Furthermore, such cost would be borne each year and will escalate. What the Commission proposed, over five extensive volumes, is a restructuring of the relationship between Indigenous and non-Indigenous people over a twenty-year cycle. They envisaged:
A period, spanning a generation, in which the foundations of a renewed relationship are put in place and the day-to-day reality experienced by Aboriginal people is transformed. Governments will have to apply substantial resources to those tasks: fundamental change will only be achieved with great effort and commitment ... This expenditure is justified to correct the injustices of the past and present ... Aboriginal people are entitled to equal social, educational and health outcomes, to a fair share of the country's assets, and to a much greater share of opportunity than they have had so far ... [76]
The Commissioners argued that an extensive effort to overcome Indigenous disadvantage over a twenty year cycle would bring about fundamental change in the circumstances of Aboriginal people and lead to the progressive reduction and eventual elimination of the social costs accrued due to Indigenous disadvantage. 'By eliminating the cost of the status quo, the strategy will yield economic benefits that far exceed the amounts governments will spend to implement it.' [77] Governments would benefit in two ways - with reduced expenditure on financial assistance and remedial programs on the one hand, and a fiscal dividend through increased Indigenous income on the other. [78] In this sense, a long-term commitment to disadvantage reflects 'a good investment'.
The Centre for Aboriginal Economic Policy Research has applied this approach and sought to measure the cost of the status quo in relation to Indigenous unemployment in Australia. [79] The results of their economic modelling are that:
it is estimated that the current income support payments for the 'potential' Indigenous workforce (including the CDEP scheme) amount to $0.8 billion per annum in 1996 dollars. By 2001 this is estimated to increase in real terms to $1.0 billion and by 2006 to over $1.1 billion per annum. The indirect costs of long-term economic marginalisation and associated social problems are difficult to estimate but will undoubtedly increase in proportion with the growing job deficit.
The imperative, therefore, is to shift the burden for meeting the basic needs of Indigenous people in the longer term from government to the people themselves. Rather than find jobs for all Indigenous people who want to work, a more reasonable goal is to establish parity in labour force status with other Australians. If Indigenous unemployment was reduced to the same level as that commensurate with the rest of the population, and assuming that this latter rate remained constant, then the savings to government in payments to the unemployed, in 1996 dollars, would be around $193 million by the year 2001 and $274 million by 2006 with much lower unemployment bills of $112 and $126 million respectively.
On the credit side, the tax return of achieving parity in labour force status would approximate $177 million by 2006. However, by shifting all Indigenous people who want to work from welfare dependence to unsubsidised employment would increase tax revenue by $250 million (in 1996 dollars). Furthermore, this would enhance national production and provide large social policy returns in areas such as health ... [80]
They warn of the effect of continuing with the status quo:
Against key indicators of economic status, it is clear that the time available for decisive action is decreasing rapidly. In terms of employment status, for example, the vital issue for Indigenous policy into the new millennium is the distinct prospect that the overall situation will deteriorate. This is primarily because of population growth, but also because of the enormous difficulties of economic catch-up in a rapidly changing and increasingly skills-based labour market.
It is important to recognise that policy options for addressing projected Indigenous employment disparities are not easy to prescribe, nor are they cost neutral. To withdraw expenditure is simply to hasten deterioration with a rise in associated social and economic burden. To continue business as usual is clearly insufficient in the face of population growth. To enhance spending and program effort would clearly buck the fiscal trend but with the possibility, ultimately, of social and economic return. At the very least, in allocating spending on Indigenous economic policy there is a need to take into account the fact of relatively high population growth ...
...a key policy question, that can still be addressed from cross-sectional examination of census data, is whether the relative economic status of Indigenous people is likely to appear any better when the next census results are publicly available in 2002 and again in 2007. All other things being equal, results from the present analysis of likely future employment and income status suggest that it will not. [81]
If 'practical reconciliation' is to achieve the desired results, this is the hard reality that it must face. In chapter 4 of this report I discuss mechanisms to ensure the commitment and accountability of governments to redressing disadvantage, as well as related issues such as Indigenous governance mechanisms and benchmarking processes.
Self-determination and effective participation: 'within the life of the nation'?
And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation.
Australian Declaration towards Reconciliation,
Council for Aboriginal Reconciliation
Without doubt the most controversial aspect of the debate on reconciliation has been over the implications of the right to self-determination. There are widely differing views on the relevance of self-determination to the reconciliation process.
For Indigenous people, self-determination is viewed as essential for the full realization of all other human rights. [82] But for the government, and many non-Indigenous people, it is considered unacceptable for reconciliation to involve recognition of Indigenous people's self-determination. The government's reworded version of the Australian declaration towards reconciliation, for example, replaces the phrase 'And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation' with 'And so, we pledge ourselves to stop injustice, overcome disadvantage and respect the right of Aboriginal and Torres Strait Islander peoples, along with all Australians, to determine their own destiny'. [83]
Self-determination is viewed as a threat to national unity that, if realized, could lead to the establishment of 'separate rights' or in the extreme view, in the secession of Indigenous people from Australia. The government also conceives of self-determination as 'merely an end in itself' rather than a process which has at its end the goal of social and economic equality. [84] Others argue that the right to self-determination simply does not apply to Indigenous peoples in Australia.
The assertion that Indigenous people do not have a right to self-determination must be rejected outright. It is not a matter of theoretical debate whether Indigenous people have a right to self-determination, [85] but a matter of practical reality. Recent practice by the United Nations Human Rights Committee and Committee on Economic, Social and Cultural Rights clearly envisage that self-determination is a right held by Indigenous peoples, including in Australia. [86]
Instead of denying the application of self-determination to Indigenous peoples, international debates have moved on and now focus on the content and meaning of self-determination, and particularly on whether it is limited in its application to 'internal' situations, i.e. within the fabric of existing states. This approach has been exemplified by the Council for Aboriginal Reconciliation's acknowledgement of Indigenous Australians' right to self-determination 'within the life of the nation'.
There are two aspects of the right to self-determination highlighted in this section:
- a) Self-determination does not amount to a right of secession; and
- b) The importance of self-determination for the full and effective participation of Indigenous peoples in Australian society.
a) Self-determination does not amount to a right to secession
Article 1 of the ICCPR and ICESCR states that self-determination is the right of all peoples to 'freely determine their political status and freely pursue their economic, social and cultural development'. [87] In accordance with this right, 'All peoples may, for their own ends, freely dispose of their natural wealth and resources' and there is an obligation on the State that under no circumstances will they deprive a people 'of its own means of subsistence'. [88] The State is obliged 'to promote the realization of the right to self-determination, and shall respect that right, in conformity with the Charter of the United Nations'. [89]
The requirement that self-determination be realized 'in conformity with the Charter of the United Nations' effectively guarantees that the recognition of self-determination will not form the basis of secession of Indigenous peoples in colonial countries such as Australia. [90] As Julie Debeljak notes:
There is a strong presumption against secession or independence flowing from the right of self-determination in the colonial setting. The United Nations is strenuously opposed to any attempt to disrupt territorial integrity. The principle of uti possedetis (the respect for colonial boundaries) is stated in the General Assembly Resolution on the Granting of Independence to Colonial Countries and Peoples. [91]
The United Nations General Assembly Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970) also states that the principle of self-determination should not:
be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. [92]
As Erica Irene-Daes has commented on the Friendly Relations Declaration:
The meaning of the aforesaid provisions is plain. Once an independent State has been established and recognized, its constituent peoples must try to express their aspirations through the national political system, and not through the creation of new States. This requirement continues unless the national political system becomes so exclusive and non-democratic that it no longer can be said to be 'representing the whole people' ... Continued government representivity and accountability is ... a condition for enduring enjoyment of the right of self-determination, and for continued application of the territorial integrity and national unity principles. [93]
The United Nations human rights treaty committees have also confirmed this approach. The Committee on the Elimination of Racial Discrimination, in a general recommendation on the right to self-determination has emphasized that:
In accordance with the declaration on friendly relations, none of the Committee's actions shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and possessing a government representing the whole people belonging to the territory, without distinction as to race, creed or colour. In the view of the Committee, international law has not recognized a general right of peoples unilaterally to declare secession from a State. [94]
The Human Rights Committee has also confirmed that Article 27 of the ICCPR, though distinct from the right of self-determination, 'does not prejudice the sovereignty and territorial integrity of a State party' while also acknowledging that in some manifestations the rights of individuals protected under Article 27 - for example to enjoy a particular culture - 'may consist in a way of life which is closely associated with territory and use of its resources ... This may particularly be true of members of Indigenous communities'. [95]
The importance of Indigenous peoples' relationship to land has led Asjboern Eide, the Special Rapporteur on Minorities, to distinguish between 'territorial autonomy' and 'cultural autonomy' when discussing the importance of self-determination. While accepting that self-determination is limited by not challenging the territorial autonomy of nations, he expresses concern that self-determination should not be so limited that it prevents the expression of 'cultural autonomy' by particular groups, which he sees as 'vital to preserve cultures, and maintain group identity'. Such autonomy 'requires a considerable degree of self-management and control over land and other natural resources' and consequently will also require some degree of territorial control. [96]
On this basis, concerns that the recognition of Indigenous people's right to self-determination will inevitably threaten the territorial integrity of Australia are misplaced, and misunderstand the meaning of self-determination that has evolved through the various processes of the United Nations structure over the past thirty years. On the same basis, the qualification expressed in the Australian declaration towards reconciliation, that self-determination is limited to 'within the life of the nation' is unnecessary and as a matter of law, otiose.
b) The importance of self-determination for the full and effective participation of Indigenous peoples in Australian society
So should we be concerned by the limitation of Indigenous self-determination to 'within the life of the nation'?
In my view, yes we should. Words that expressly confine self-determination to 'within the life of the nation' operate as a distraction that hide, and consequently may even diminish, the full scope of the transformation in relations between Indigenous and non-Indigenous people that is required in this country to turn around two hundred plus years of colonialism.
As ATSIC stated in the Social Justice Package proposal, Recognition, rights and reform, self-determination should not be constrained within existing legal and political structures as such structures 'must be able to be changed to take account of Indigenous rights' . [97] An approach that is limited to 'within the life of the nation' does not sufficiently acknowledge that it is necessary that societal structures be adapted to accommodate Indigenous aspirations and cultures.
This is the core of the right to self-determination. It is about achieving the full and effective participation of Indigenous peoples in Australian society on equal terms - not on the basis of 'sameness', but through the recognition of the cultural distinctiveness and diversity of Indigenous peoples. As I outlined in the first half of this chapter, the historical treatment of Indigenous people has prevented us from participating fully in Australian society and has left us trapped in a disempowered position at the bottom of society.
Consequently, the recognition of the right to self-determination is a mechanism for re-empowering Indigenous peoples within society:
the right of self-determination of Indigenous peoples should ordinarily be interpreted as their right to negotiate freely their status and representation in the State in which they live. This might best be described as a kind of 'belated State-building', through which Indigenous peoples are able to join with all the other peoples that make up the State on mutually-agreed and just terms, after many years of isolation and exclusion. This does not mean the assimilation of Indigenous individuals as citizens like all others, but the recognition and incorporation of distinct peoples in the fabric of the State, on agreed terms. [98]
This should not be something to be feared by the rest of Australian society. It is not about the creation of separate rights. It is about inclusive government, in which Indigenous people rightfully have a role in determining their priorities and destiny. As Erica-Irene Daes states, contrary to fears of secession, the right of self-determination is the 'right to demand full democratic partnership' in society, and consequently:
this means that the existing State has the duty to accommodate the aspirations of indigenous peoples through constitutional reforms designed to share power democratically. It also means that indigenous peoples have the duty to try to reach an agreement, in good faith, on sharing power within the existing State, and to exercise their right to self-determination by this means and other peaceful ways, to the extent possible. [99]
Conclusion
In this chapter I have sought to provide a commentary on current debates over reconciliation, and to argue for a human rights basis for a renewed relationship between Indigenous and non-Indigenous Australians. There can be no social justice for Indigenous Australians without the full recognition of the human rights of Indigenous peoples.
A point that is often forgotten about human rights standards is that in many respects they protect 'the rock bottom of human existence'. [100] They are basic standards of humanity. They are also more noticeable in their breach than in their observance.
A rights basis for the reconciliation process does not provide additional benefits or protections to Indigenous people, or a privileged place in Australian society. On the contrary, it remedies deficiencies that have existed for much of the period of contact between Indigenous and non-Indigenous Australians. It also provides acknowledgement of the fact that, much like the celebration and acceptance of multiculturalism, we are a richer country for valuing Indigenous cultures and traditions on their own terms, and making them a feature of the fabric of our society. As Miguel Alfonso Martinez notes in his Final report of the study on treaties, agreements and other constructive arrangements between States and Indigenous populations:
Humanity has contracted a debt with Indigenous peoples because of the historical misdeeds against them. Consequently they must be redressed on the basis of equity and historical justice. [101]
In the next two chapters I build on the discussion in this chapter. The next chapter examines Australia's appearance before the United Nations Committee on the Elimination of Racial Discrimination in March 2000, which provides a guide to Australia's human rights performance on Indigenous issues. The fourth chapter considers a series of mechanisms by which reconciliation can be implemented and made a reality, by identifying crucial commitments and processes that governments must engage in to progress reconciliation in the coming years.
1. Jonas, W., 'Practical makes imperfect', The Australian, Thursday 25 May 2000.
2. Stanner, W.E.H., The Boyer Lectures, ABC 1968, as quoted in O'Donoghue, 'Ending the despair' (1992) 51 Australian Journal of Public Administration 212, p215.
3. Final Report of the Royal Commission into Aboriginal Deaths in Custody (1991) as quoted in ATSIC, Regional autonomy for Aboriginal and Torres Strait Islander Communities - Discussion paper, ATSIC Canberra 1999, p9.
4. The Hon. R Tickner, Council for Aboriginal Reconciliation - 2nd Reading Speech, House of Representatives, Hansard, 30-31 May 1991, p4498.
5. See further the 2nd reading debate on the Council for Aboriginal Reconciliation Bill 1991: House of Representatives, Hansard, 5 June 1991, pp 4826-4854.
6. Mabo v Queensland (No.2) (1992) 175 CLR 1.
7. Native title is also able to be recognised over water, though the full extent of this recognition remains undecided by the courts: see further, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 2000, Chapter 3, HREOC 2000 (Herein Native title report 2000); Yarmirr v Northern Territory [No.2](1998) 156 ALR 370.
8. Gray, P., 'Do the walls have ears? Indigenous title and the courts in Australia' (2000) 5 AILR 1, p1.
9. Mabo v Queensland (No.2) (1992) 175 CLR 1, per Deane and Gaudron JJ, p109.
10. See for example the reasoning of the High Court in Fejo v Northern Territory (1998) 195 CLR 96 and the full Federal Court in Yarmirr v Northern Territory[No.2] (1998) 156 ALR 370 that the recognition of native title must not 'fracture the skeletal shell of the legal system' as the basis for not recognising native title as subsisting in certain circumstances and in certain manifestations.
12. Kundera, M., New York Times Book Review, 6 March 1988, quoted in Turner, S., 'Settlement as forgetting' in Neumann, K., Thomas, N., and Ericksen, H. (eds), Quicksands - Foundation histories in Australia and Aotearoa New Zealand, UNSW Press, Sydney, 1999, p20.
13. ibid, p33.
14.Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, pp 97-98.
15. Coombs, H.C., quoted in Rowse, T., 'A spear in the foot of Senator Evans' in Neumann, K, Thomas, N, and Ericksen, H (eds), op.cit, p217.
16. Barkin, E., The guilt of nations, Norton, New York, 2000, p x.
17. Council for Aboriginal Reconciliation and Centre for Aboriginal Economic Policy Research, Towards a benchmarking framework for service delivery to Indigenous Australians, Commonwealth of Australia, Canberra, 1998, p14.
18. Aboriginal and Torres Strait Islander Commission, Recognition, rights & reform, ATSIC, Canberra, 1995, para 1.8.
20. ibid. In 1991, Jon Altman and Will Sanders argued that the rapidity of the movement from a position of exclusion from mainstream society to the dependency on welfare by the 1990s had been a major achievement, albeit the first step: Altman, J and Sanders, W, From exclusion to dependence - Aborigines and the welfare state in Australia, Centre for Aboriginal Economic Policy, ANU, Canberra, 1991.
21. See further: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, HREOC Sydney 1999, Chapter 2; Taylor, J and Hunter, B., The job still ahead: Economic costs of continuing Indigenous employment disparity, Centre for Aboriginal Economic Policy Research, ANU, Canberra, 1998.
22. Saulwick & Associates, and Muller & Associates, Research into issues related to a document of reconciliation - Report No.2: Indigenous qualitative research, Council for Aboriginal Reconciliation, Canberra, May 2000, www.reconciliation.org.au, p6.
23. See further: Altman, J. (Ed), Aboriginal employment equity by the year 2000, Centre for Aboriginal Economic Policy Research, ANU 1991.
24. As CAEPR have noted, due to the extremely young age structure of the Indigenous population, a significantly high percentage of Indigenous people will be entering working age in the next decade. Consequently, to 'attempt to close the gap (in labour force status) between Indigenous and other Australians, will require an absolute and relative expansion in Indigenous employment that is without precedent.': Taylor, J and Hunter, B, op.cit, piv. See also: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social justice report 1999, op.cit, Chapter 2.
25. CAR and CAEPR, Towards a benchmarking framework for service delivery to Indigenous Australians, op.cit, p17.
26. Mabo v Queensland (No.2) per Brennan J, p 39.
27. See further: Human Rights and Equal Opportunity Commission, Bringing them home, HREOC, Sydney, 1997, Chapter 2.
28. See further: Senator the Hon J. Herron, Submission to the stolen generation inquiry, Minister for Aboriginal Affairs, Canberra, March 2000.
29. Royal Commission into Aboriginal Peoples, Volume 1: Looking forward, looking back, Minister of Supply and Services, Ottawa, 1996, pp607-08.
30. Social justice report 1999, op.cit, p4.
31. Rose, D.B., 'Hard times: An Australian study' in Neumann, K, Thomas, N, and Ericksen, H (eds), op.cit, p7.
33. Note that on 26 August 1999 both houses of federal Parliament passed a motion of reconciliation, which in addition to identifying reconciliation as an important national priority, expressed 'deep and sincere regret' for 'practices of past generations': Hansard, House of Representatives, 26 August 1999, p 9205.
34. Recommendation 5a of Bringing them home called for all Australian Parliaments to officially acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal.
35. Only the Northern Territory and the Commonwealth Parliament have not done so. Motion of reconciliation, Hansard, House of Representatives, 26 August 1999, p 9205.
36. See further Chapter 5 of this report.
37. Dr M Wooldridge, Hansard, House of Representatives, 5 June 1991, p4827.
38. Deane, W., Some signposts from Dagaragu, citation, p12.
39. Saulwick & Associates, and Muller & Associates, op.cit, p16.
41. Royal Commission into Aboriginal Deaths in Custody, Volume One: Looking forward, looking back, op.cit, p677.
42. Dodson, P., Beyond the mourning gate - Dealing with unfinished business, Wentworth Lecture 2000, AIATSIS, Canberra, 12 May 2000 http://www.aiatsis.gov.au/corporate/docs/wentworth2000.htm, p6.
43. Royal Commission into Aboriginal Deaths in Custody, Volume One: Looking forward, looking back, op.cit, p677.
44. ibid, Chapter 16. In particular see pp677-691.
45. See for example, Minister of Indian Affairs and Northern Development, 2000 progress report on Gathering strength, Ottawa, July 2000, Available online at www.inac.gc.ca.
46. Dodson, P., Beyond the mourning gate - Dealing with unfinished business, op.cit, p7.
47. Motion of Reconciliation, op.cit, p 9205.
48. This adds a further dimension to the denialism of the past discussed above. Not only is the past disjunctive from present circumstances, but the possibility of future imbalances is also harnessed to limit action in the present.
49. Saulwick, I. and Muller, D., op.cit, pp 24-25.
51. The Hon J Howard, Reconciliation documents, Press release, 11 May 2000.
52. The Hon P Ruddock, Government supports many aspects of the Council's roadmap, Press release, 11 May 2000.
53. Deane, W., Some signposts from Dagarugu, op.cit, p16.
54. Robinson, M., United Nations High Commissioner for Human Rights, The universality of human rights, Statement, Bonn, 11 November 1999.
55. World Conference against Racism, Racial Discrimination, xenophobia and related intolerance, Tolerance and diversity: A vision for the 21st century, Office of the High Commissioner for Human Rights, Geneva 2000.
56. This obligation arises in the following treaties: International Covenant on Civil and Political Rights, Articles 2 and 26; International Covenant on Economic, Social and Cultural Rights, Article 2; International Convention on the Elimination of All Forms of Racial Discrimination, Articles 1, 2 and 5; and Convention on the Rights of the Child, Article 2.
57. Human Rights Committee, General comment XVIII, Non-discrimination (1989), para 9 in United Nations, Compilation of General Comments and General Recommendations adopted by the United Nations human rights treaty bodies, UN Doc HR1/GEN/Rev.1, p26; See also Committee on the Elimination of Racial Discrimination, General Recommendation XIV on article 1, paragraph 1 of the Convention, para 2, in Committee on the Elimination of Racial Discrimination, Compilation of General Recommendations, UN Doc CERD/C/365. For a more detailed discussion of these principles see: Social justice report 1999, op.cit, pp 50-53; and Aboriginal and Torres Strait Islander Social Justice Commissioner, Native title report 1998, HREOC, Sydney, 1999, Chapters 2 and 3.
58. Committee on the Elimination of Racial Discrimination, General Recommendation XXIII - Indigenous peoples, UN Doc CERD/C/51/Misc.13/Rev.4, 18 August 1997, para 3.
60. Tony Anghie, quoted in Charlesworth, H., 'Human rights and reconciliation in international perspective' in Magarey, S. (ed), Human rights and reconciliation in Australia, University of Queensland Press, St Lucia, 1999, p20.
61. Saulwick, I. and Muller, D., op.cit, p94.
62. Hunter, B., Three nations not one: Indigenous and other Australian poverty, CAEPR Working Paper 1/1999, Canberra 1999, Available online at: http://www.anu.edu.au/caepr/working/wp1.pdf
63. I explained why these concerns are unwarranted in my previous report: Social justice report 1999, op.cit, pp 7-14.
64. Saulwick, I and Muller, D, op.cit, p10.
65. Note that in commenting on the documents of reconciliation on their release in May 2000, the government indicated that it broadly supports the strategies for addressing disadvantage, economic empowerment and sustaining the reconciliation process, but not the strategy for the recognition of Aboriginal and Torres Strait Islander rights: The Hon P Ruddock, Government supports many aspects of the Council's Roadmap, Press release, 11 May 2000.
66. See the discussion of this in my previous report: Social justice report 1999, op.cit, pp 2-7.
67. Aboriginal and Torres Strait Islander Commission, Recognition, rights and reform, ATSIC Canberra 1995, p ix-x. See also: Aboriginal and Torres Strait Islander Social Justice Commissioner, Volume 1: Indigenous social justice: Strategies and recommendations, HREOC, Sydney, 1995, p5.
68. Social justice report 1999, op.cit, p6.
69. House of Representatives Standing Committee on Family and Community Affairs, Health is life, Parliament of Australia, Canberra, May 2000, paras 1.46-47.
72. Committee on Economic, Social and Cultural Rights, General Comment 3: The nature of States Parties obligations (Article 2, para 1), 14/12/90, para 2.
74. See further Social justice report 1999, op.cit, Chapter 2, and Human Rights and Equal Opportunity Commission, Submission to the Committee on Economic, Social and Cultural Rights, 3.Indigenous disadvantage, HREOC, Sydney, 2000, available at http://www.hreoc.gov.au/social_justice/index.html.
75. Royal Commission into Aboriginal Peoples, Volume 5: Renewal: A twenty year commitment, pp23-24.
79. Taylor, J, and Altman, J, The job ahead - Escalating economic costs of Indigenous employment disparity, ATSIC, Canberra 1997; Taylor, J, and Hunter, B, The job still ahead: Economic costs of continuing Indigenous employment disparity, ATSIC, Canberra, 1998.
80. Taylor, J, and Hunter, B, The job still ahead, ibid, Executive summary.
82. See for example the World Health Organisation, Geneva Declaration on the health and survival of Indigenous peoples, concluded during an international consultation on the health of Indigenous peoples. The preamble states that the right of self-determination is vital to health outcomes: see Indigenous Peoples' Center for Documentation, Research and Information (doCip), doCip Update, No. 32-33 - November 1999 / February 2000, doCip, Geneva 2000, http://www.docip.org.
83. The Hon J Howard, Reconciliation documents, Press release, 11 May 2000.
84. Rather, the vague and undefined concept of 'self-empowerment' is preferred, and is said to engender 'a greater sense of responsibility and independence' and to vary from self-determination 'in that it is a means to an end - ultimately social and economic equality - rather than merely an end in itself': Senator Herron, 9th Annual Joe and Enid Lyons Memorial Lecture, as quoted in Social justice report 1999, op.cit, pp19-20.
85. Social justice report, ibid, pp89-97.
86. Human Rights Committee (HRC) Concluding observations on Australia, UN Doc CCPR/CO/69/AUS, which states at para 10 that 'The State party should take the necessary steps in order to secure for the Indigenous inhabitants a stronger role in decision making over their traditional lands and natural resources (article 1, para 2)'; HRC, List of Issues: Australia, UN Doc: CCPR/C/69/L/AUS, 25/04/2000, Issue 4: 'What is the policy of Australia in relation to the applicability to the Indigenous peoples in Australia of the right of self-determination of all peoples?'; Committee on Economic, Social and Cultural Rights (CESCR), List of Issues : Australia, UN Doc: E/C.12/Q/AUSTRAL/1, 23/05/2000, Issue 3: 'What are the issues relating to the rights of indigenous Australians to self-determination, and how have these issues impeded the full realization of their economic, social and cultural rights?' See also: CESCR, List of issues: Canada, UN Doc: E/C.12/Q/CAN/1, 10 June 1998, Issue 23; CESCR, Concluding observations: Canada, UN Doc: E/C.12/1/Add.31, 10/12/98; HRC, Concluding observations: Canada, Un Doc: CCPR/C/79?Add.105, 7/4/99, paras 7,8; HRC, Concluding Observations: Norway, UN Doc: CCPR/C/79/Add.112, 05/11/99, paras 10 and 17, which provides (at para 17) that 'the Committee expects Norway to report on the Sami people's right to self-determination under Article 1 of the Covenant, including paragraph 2 of that article'. The HRC has also confirmed that Indigenous peoples have a right to self-determination in the following individual communications: Lubicon Lake Band v Canada (1990) Un Doc: CCPR/C/38/D/167/1984; and Marshall (Mikmaq Tribal Society) (1991) UN Doc: CCPR/C/43/D/205/1986.
87. Article 1(1) of both the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). See also Article 3 Draft Declaration on the Rights of Indigenous Peoples.
90. Note this provision is also incorporated into the Draft Declaration on the Rights of Indigenous Peoples, Article 45 of which states that actions contrary to the Charter of the United Nations are not permitted.
91. Debeljak, J, 'Barriers to the recognition of Indigenous peoples' human rights at the United Nations' (2000) 26 Monash University Law Review 159, p171.
92. General Assembly Resolution 2625 (XXV).
93. Daes, E., Discrimination against Indigenous people - Explanatory note concerning the draft declaration on the rights of Indigenous peoples, op.cit, para 21. Note: this explanatory note is considered by most Indigenous organizations participating in the negotiations over the Draft Declaration on the Rights of Indigenous Peoples to succinctly state the Indigenous viewpoint, and form the basis of negotiations with governments: doCip, doCip Update, No. 32-33 - November 1999 / February 2000, op.cit.
94. Committee on the Elimination of Racial Discrimination (CERD), General Recommendation XXI, Self-determination, in CERD, Compilation of general recommendations, Un Doc CERD/C/365, para 11.
95. Human Rights Committee, General comment 23, the rights of minorities (article 27), 08/04/94, para 3.2.
96. Eide, A. and Daes, E., Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of Indigenous peoples, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, UN Doc: E/CN.4/Sub.2/2000/10, 19 July 2000, para 15.
97. ATSIC, Recognition, rights and reform, op.cit, para 3.25.
98. Daes, E., Discrimination against Indigenous people - Explanatory note concerning the draft declaration on the rights of Indigenous peoples, op.cit, para 26.
100. Johan Galtung, quoted in Charlesworth, H., 'Human rights and reconciliation in international perspective', op.cit, p9.
101. Martinez, M., Study on treaties, agreements and other constructive arrangements between States and Indigenous populations, Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/Sub.2/1999/20, 22 June 1999, para 255.
