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Indigenous Affairs in Australia

Aboriginal and Torres Strait Islander Social Justice

Indigenous Affairs in Australia

– post the Apology

Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner

Australian Human Rights and Equal Opportunity Commission


I would like to begin by acknowledging the tangata whenua [i.e. Traditional Owners] of the land on which we meet and pay my respects to their tipuna [i.e. ancestors].

I thank the New Zealand Human Rights Commission and Joris de Bres, the New Zealand Race Commissioner, for the warm invitation to speak at this forum.  And I welcome the opportunity to share this session with Karen Johansen, the New Zealand Human Rights Commissioner.

My Iwi [i.e. tribes] are Kungarakan and Iwaidja, whose whenua [i.e. traditional lands] are south west of Darwin and on the Coburg Peninsula in the Northern Territory.

I am the Aboriginal and Torres Strait Islander Social Justice Commissioner and the National Race Discrimination Commissioner at the Human Rights and Equal Opportunity Commission or HREOC in Australia.

HREOC is a national, independent, statutory body established under the Human Rights and Equal Opportunity Commission Act 1986.  As the Social Justice Commissioner my functions are to monitor the enjoyment and exercise of human rights for Indigenous Australians.  I produce annual social justice and native title reports, which are tabled in the federal parliament each year.

I was asked to speak today about the current situation for Aboriginal and Torres Strait Islander peoples (‘Indigenous peoples’) in Australia and what vision there is for the future. 

Recent years have been tumultuous times for Indigenous Australians.  There have been moments of sadness, anger and disbelief at the extent of discrimination and lack of protection of Indigenous rights.  But there have also been significant moments of healing, reconciliation and most recently jubilation!

Today I will reflect with you on developments in relation to Indigenous health, the Northern Territory Emergency Response to family violence and child abuse, land and sea rights, and Indigenous representation.

slide 2

Prime Minister Kevin Rudd Apology to Australia’s Indigenous Peoples

13 February 2008

Photo of Prime Minister Kevin Rudd

Until we fully confront that truth, there will always be a shadow hanging over us and our future as a fully united and fully reconciled people. It is time to reconcile. It is time to recognise the injustices of the past. It is time to say sorry…

To the stolen generations, I say the following: as Prime Minister of Australia, I am sorry. On behalf of the government of Australia, I am sorry. On behalf of the parliament of Australia, I am sorry. I offer you this apology without qualification.

We apologise for the hurt, the pain and suffering that we, the parliament, have caused you by the laws that previous parliaments have enacted. We apologise for the indignity, the degradation and the humiliation these laws embodied….

Our challenge for the future is to embrace a new partnership between Indigenous and non-Indigenous Australians.

The core of this partnership for the future is closing the gap between Indigenous and non-Indigenous Australians on life expectancy, educational achievement and employment opportunities.

I would like to start with a historical event that took place on 13 February 2008 when Prime Minister Kevin Rudd made the National Apology to the Stolen Generations.

In 1997, HREOC’s Bringing them home Report on the ‘National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families’ recommended that the government make reparation by acknowledging and apologising to the Stolen Generations. 

The Stolen Generations have been waiting a long time for the Apology.

On 13 February 2008, Parliament acknowledged the existence and the impacts of the past policies and practices of forcibly removing Indigenous children from their families, and apologised for it.

And by so doing, paid respect to the Stolen Generations - for their suffering and their loss, for their resilience, and ultimately, for their dignity.

On that day, Australia’s leaders – across the political spectrum – chose dignity, hope and respect as the guiding principles for the relationship with our first nations’ peoples. 

The Apology has since become more than a symbolic gesture. The significance of the Apology was recently acknowledged in the Australian High Court.  In the Northern Territory of Australia v Arnhem Land Aboriginal Land Trust,1Justice Kirby took judicial notice of the Apology. He stated that although the Apology does not have any normative legal operation, “it is an element of the social context in which …laws are to be understood and applied.’2

The Apology has also been prominent in setting the foundation for a new agenda in Indigenous affairs that aims to overcome the disadvantage and discrimination Indigenous Australians continue to face today. 

This new agenda is based on a new partnership between government and Indigenous people. In his Apology, the Prime Minister said that ‘the core of this partnership for the future is closing the gap between Indigenous and non-Indigenous Australians on life expectancy, educational achievement and employment opportunities’.

slide 3

Equality in Indigenous health and life expectation within 25 yearsSocial Justice Report 2005 Cover

Targets:

  • Health status equality within 25 Years
  • Equality of opportunity in 10 years
    • Primary health care
    • Health infrastructure
    • Indigenous health
    • workforce

Closing the Gap on Indigenous health inequality is an area that has seen some important developments.

  • There is still a 17 year gap in life expectancy between Indigenous and non-Indigenous Australians. 
  • Indigenous people still bear a higher burden of disease, which includes cardiovascular diseases, trachoma and rheumatic heart disease, among others.3
  • Indigenous children have higher rates of hearing loss due to untreated communicable diseases, with up to 40% of children affected in some remote communities.4

The combination of a lower health status, greater exposure to health risk factors resulting from the socio-economic disadvantages prevalent among Indigenous people, and limited access to health care, amounts to Indigenous people in Australia not having an equal right to adequate health care.

Most concerning, governments have not undertaken sufficient action necessary to overcome the health inequality.

My Social Justice Report 2005 found thatthe gap between Indigenous and non-Indigenous peoples’ health was not intractable but could be overcome within a generation.

I called for the Australian government to:

  • Adopt a human rights based approach to Indigenous health, and
  • Set concrete targets for closing the gap in equality of health status including:
    • Reducing the gap in life expectation between Indigenous and non Indigenous people within 25 years, and
    • Achieving equality of access to primary health care and health infrastructure within 10 years.

Slide 4

Join National Close the Gap Day posterClose the Gap Campaign

Achieving Aboriginal and Torres Strait Islander health equality within a generation – A human rights based approach

 

 

From these recommendations emerged the ‘Close the Gap Campaign’. A human rights based campaign for achieving Indigenous health equality within a generation. The campaign calls on the government to: 

  • establish benchmarks and targets, negotiated with the full participation of Aboriginal and Torres Strait Islander peoples;
  • make resources available through mainstream and Indigenous services, so that funding matches the need in communities and is adequate to achieve the benchmarks, targets and goals; and
  • apply a whole of government approach to Indigenous health, to address the social determinants of health.

Slide 5

National Health Equality Summit – Statement of Intent

The Statement of Intent commits to:Photo of Statement of Intent

  • Develop a comprehensive, long-term plan of action, that is targeted to need, evidence-based and capable of addressing the existing inequities in health services, in order to achieve equality of health status and life expectancy between Aboriginal and Torres Strait Islander peoples and non- Indigenous Australians by 2030.
  • Ensure the full participation of Aboriginal and Torres Strait Islander peoples and their representative bodies in all aspects of addressing their health needs.
  • Build on the evidence base and supporting what works.
  • Respect and promote the rights of Aboriginal and Torres Strait Islander peoples; And
  • Measure, monitor, and report on our joint efforts, in accordance with benchmarks and targets, to ensure that we are progressively realising our shared ambitions.

In March 2008, at the National Health Equality Summit, the government responded to the campaign’s recommendations. The government acknowledged the need to meet the primary health care and health infrastructure ten year targets and the need to set targets for specific health issues. 

At the Summit the government committed to:

  • Develop a comprehensive, long-term plan of action that is targeted to need, evidence-based and capable of addressing the existing inequities in health services.
  • Ensure the full participation of Indigenous peoples and their organisations in all aspects of addressing their health needs.
  • Respect and promote the rights of Indigenous peoples;  and
  • Measure, monitor, and report on our joint efforts, in accordance with benchmarks and targets, to ensure that we are progressively realising our shared ambitions. 

Slide 6

Council of Australian Governments

COAG agreed to:

  • A partnership between all levels of government to work with Indigenous communities to achieve the target of closing the gap on Indigenous disadvantage including:
    • closing the life expectancy gap within a generation;
    • halving the mortality gap for children under five within a decade; &
    • halving the gap in reading, writing and numeracy within a decade.
    • recognising the pathway to closing the gap is inextricably linked to economic development and improved education outcomes.
    • establishing a Working Group on Indigenous Reform

The Council of Australian Governments (or COAG) has similarly agreed to a partnership between all levels of government to work with Indigenous communities to achieve the targets of closing the gap on Indigenous disadvantage. 

Most recently the Close the Gap Campaign developed a series of equality targets to achieve the goals of equal access for equal need and equal health outcomes. They include targets on partnerships, priority areas of health and wellbeing, primary health care, health services and infrastructure.   

Slide 7

Health Equality Targetsn

  • Partnership Targets - to lock into place a collaborative approach to Indigenous health;
  • Health Status Targets - Targets that focus on specific priority areas of child and maternal health, chronic disease and mental health and emotional and social wellbeing;
  • Primary Health Care and other Health Services Targets; and
  • Infrastructure Targets.

The Campaign is now working with government departments to integrate these targets into national planning and monitoring frameworks.

For me, the most important part of the Close the Gap Campaign has been the government’s commitment to engage and negotiate and enable participation of Indigenous peoples in developing the solutions.  This approach has marked the watershed I have seen taking place in Indigenous affairs. 

What I would like to see is this commitment now carried through to all areas affecting Indigenous people.

This includes what is known as the Northern Territory Intervention.

The Australian Government announced an emergency response to protect Indigenous children in the Northern Territory ‘from sexual abuse and family violence’ on 21 June 2007.  I welcomed the announcement.  But I cautioned that any response must be conducted in line with Australia‘s international human rights obligations, and particularly, in a manner consistent with the Racial Discrimination Act 1975 (Cth) (RDA). 

There has been a lot of concern among Indigenous people about the Intervention and how it has been introduced.  It has involved a sweep of measures including the blanket quarantining of welfare payments for all Indigenous peoples in particular communities in the Northern Territory; abolition of Indigenous community development employment projects; compulsory acquisition of Indigenous land to facilitate access to communities, without just compensation; and complete bans on alcohol, among other things.

The measures introduced through the Intervention were exempted through legislation from racial discrimination and anti-discrimination legislation, while at the same time also being deemed to be a ‘special measure’. This problematically includes those elements of the intervention that have negatively impacted on Indigenous people’s rights, and measures that were introduced without proper consultation or consent of the Indigenous communities.     

Slide 8

Northern Territory Intervention

  • Action 1: Restore all rights to procedural fairness and external merits review;
  • Action 2: Reinstate protections against racial discrimination;
  • Action 3: Amend or remove the provisions that declare that the legislation constitutes a ‘special measure’;
  • Action 4: Reinstate protections against discrimination in the Northern Territory and Queensland;
  • Action 5: Require consent to be obtained in the management of Indigenous property and confirm the guarantee of just terms compensation;

Introducing measures that undermine the rule of law and that do not guarantee Aboriginal citizens equal treatment to other Australians has undermined the credibility of the measures, and ultimately, threatens the sustainability and long term impact of the measures.

The Social Justice Report 2007 identifies a ten point action plan for amending the intervention to make it consistent with Australia’s human rights obligations and provide equal treatment of Indigenous children and their families before the law, while also dealing with critical issues of violence and abuse in our communities. 

This plan identifies ways to remove any formal discrimination (Actions 1-5). It proposes methods for ensuring that income management and alcohol control schemes are consistent with the RDA and qualify as a special measure (actions 6-7). 

Slide 9

Northern Territory Intervention

  • Action 6: Reinstate the CDEP Program and review the operation of the income management scheme so that it is consistent with human rights;
  • Action 7: Review the operation and effectiveness of the alcohol management schemes;
  • Action 8: Ensure the effective participation of Indigenous peoples in all aspects of the intervention;
  • Action 9: Set a timetable for the transition from an ‘emergency‘ intervention to a community development plan;
  • Action 10: Ensure stringent monitoring and review processes.

And it identifies an approach to transition from an emergency approach to a community development approach by ensuring participatory processes, creation of community development plans and rigorous participatory based monitoring and reviews.

A Review of the Intervention is currently underway. 

It is vital that the government takes serious action on a significant scale to address Indigenous disadvantage. But the approach I recommend challenges the government to act in a manner that respects human rights and human dignity.

Slide 10

Blue Mud Bay Case

  • Traditional Owners have the right to exclude commercial and recreational fishers from tidal waters within the Blue Mud Bay, in northeast Arnhem Land
  • Fishing licences merely regulate the specific activity of fishing but do not authorise entry to any particular area.
  • Common law notion of a public right to fish has been abrogated by the Northern Territory's fisheries legislation

Northern Territory of Australia

v

Arnhem Land Aboriginal Land Trust

The third area I would like to share with you is the case of the Northern Territory of Australia v Arnhem Land Aboriginal Land Trust5. The case was handed down in July 2008, and has been the source of much jubilation.

The High Court of Australia held that Traditional Owners have the right to exclude commercial and recreational fishers and others from inter-tidal waters within the Blue Mud Bay in northeast Arnhem Land.

This overcomes the limitation that was in place as a result of the Northern Territory’s Aboriginal Land Rights Act (1976) only recognising Aboriginal land to the low water mark. 

The High Court held that the fishing licences merely regulate the specific activity and do not authorise entry to any particular area. This means that the granting of a fishing licence cannot be an exemption to the prohibition to enter Aboriginal land. 

The High Court also held that a common law notion of a public right to fish, stemming from the Magna Carta in 1215, could no longer be relied upon as it had been abrogated by the Northern Territory's fisheries legislation previously enacted to regulate the fishing industry.

The decision affects more than 80 per cent of the Northern Territory coastline which is Aboriginal land.

The Traditional Owners have already shown a willingness to negotiate with the commercial fisheries. Djambawa Marawilli, one of the Traditional Owners, said he hoped to see more communication between Traditional Owners and fishing bodies.6 

The most exciting aspect of the case is that it extends unprecedented control to the Traditional Owners over commercially-valuable resources. The mud crabs, barramundi and trepang that are caught in the inter-tidal zone of the Northern Territory are valued at hundreds of millions of dollars a year. 

So while the case is important because it acknowledges the rights of Indigenous people, it is also important because it results in a valuable economic base for Indigenous people which can be utilised for overcoming Indigenous disadvantage. 

While it is early days, the willingness of the Northern Territory government to negotiate with traditional owners, rather than overriding their rights, is an extremely important development.

When we look at Indigenous disadvantage today, the clearest message that comes out is the need for change.  And we need government to create a context for change that is considered, evidence based, capable of being achieved and systemic.

Slide 11

New National Indigenous Representative Body

Image of the Barunga StatementThe Barunga Statement (June 1988)

“We call on the Commonwealth to pass laws providing: A national elected Aboriginal and Islander organisation to oversee Aboriginal and Islander affairs;”

Minister for Indigenous Affairs (May 2008)

“The Government went to the election with a commitment to set up a national representative body to provide an Aboriginal and Torres Strait Islander voice within government. We will soon begin formal discussions with Indigenous people about the role, status and composition of this body.”

HREOC Issues Paper, 2008

What are the lessons learned from other Indigenous representative mechanisms that currently exist, or have previously existed, in Australia and overseas.

Issues to consider:

  • the guiding principles
  • role and functions
  • structure and membership
  • relationship with governments and parliaments, and
  • funding

This takes me to the fourth area I will cover today - the formation of a new National Indigenous Representative Body. Currently there is limited engagement with Indigenous peoples in setting policy and programs. The need for a National Indigenous Representative Body is widely agreed upon by both Indigenous people and government.

The new federal government is committed to supporting a National Indigenous Representative body and has commenced consultation processes to take place over the next four months.

I recently released an issues paper, as a resource, to help people to think through the best means of representation for Indigenous people at the national level. The paper looks at:

  • What lessons can be learned from mechanisms for representing indigenous peoples at the national, State/ Territory or regional level that previously existed or are currently in place? and
  • What lessons can be learned from mechanisms for representing Indigenous peoples established in other countries, including New Zealand?

The final part of the paper explores a series of issues to consider in establishing a sustainable National Indigenous Representative Body, such as - the guiding principles, role and functions, structure and membership, its relationship with governments and parliaments and, of course, funding for such a body. 

Having a representative body is an essential component of the Indigenous policy landscape if we are to make lasting progress in improving the conditions of Indigenous people and our communities.7

Slide 12

UN Declaration on the

Rights of Indigenous Peoples

  • Adopted by the General Assembly on 13 September 2007 Indigenous man dance
  • Recognises human rights and fundamental freedoms of indigenous peoples including:
    • right to unrestricted self-determination
    • inalienable collective right to the ownership, use and control of lands, territories and other natural resources,
    • prior and informed consultation, participation and consent
    • fair and adequate compensation
    • guarantees against ethnocide and genocide.

Before I conclude I would like to place this discussion in the context of the international recognition of indigenous people’s human rights. 

Australia was one of four countries that voted against the United Nations Declaration on the Rights of Indigenous Peoples (along with Canada, New Zealand and the United States). The Declaration was adopted by an overwhelming majority of the global community.  This demonstrates that the international community is committed to the protection of the individual and collective rights of indigenous peoples. 

The voting position of a country does not determine the status of the Declaration. So we should all work to ensure that the Declaration is used as a framework to guide cooperative partnerships between government and indigenous peoples in Australia, New Zealand and everywhere else in the world. 

The current Australian government has promised to formally support the Declaration and reverse its position at the vote.

As I have shared today, the Apology has marked a watershed change in Indigenous affairs in Australia. We have seen a shift in the partnership between government and Indigenous people towards engagement and participation. We have seen real commitments in the area of Indigenous health. 

Slide 13

The importance of hopen

 

From self respect comes dignity and from dignity comes hope

We still need to work hard together to realise these commitments.  There is still a lot of unfinished business.  But I believe it is possible to have real and lasting change to overcome Indigenous disadvantage, within a rights based approach that involves Indigenous people’s participation. This is my hope.

Please remember, from self respect comes dignity and from dignity comes hope. kia ora <Thank You>


Endnotes

[1] Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 30 July 2008 D7/2007.

[2] Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 30 July 2008 D7/2007, 71.

[3] Australian Institute of Health and Welfare, Australia's health 2008, The eleventh biennial health report of the Australian Institute of Health and Welfare, Australian Institute of Health and Welfare, Canberra, 24 June 2008, p67 (available at:  http://www.aihw.gov.au/publications/aus/ah08/ah08-c03.pdf)

[4] Couzos, S., ‘Practical measures that improve human rights – towards health equity for Aboriginal children’, (2004), 15 (3) Health Promotion Journal of Australia 186, p186. 

[5] Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 30 July 2008 D7/2007.

[6] Media Release, ‘Indigenous win in fishing rights case’, 30 July 2008 (available at:  http://www.abc.net.au/news/stories/2008/07/30/2318613.htm)

[7] Aboriginal and Torres Strait Islander Social Justice Commissioner, Speech on ‘Sustainable options for Australia’s new national Indigenous representative body’, Native Title Conference 2008, 4 June 2008, Perth (available at:   http://www.humanrights.gov.au/about/media/speeches/social_justice/2008/20080604_representative_body.html).