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Executive Summary

In accordance with statutory duties, the Aboriginal and Torres Strait Islander Social Justice Commissioner reports to Parliament each year on the enjoyment and exercise of the human rights of Aboriginal and Torres Strait Islander peoples. This includes a requirement to report on the operation of the Native Title Act 1993 (Cth) and its impact on the human rights of Aboriginal and Torres Strait Islander peoples, in particular their rights to land, waters and resources. This combined Social Justice and Native Title Report 2016 (the Report) covers the significant human rights issues that have occurred during the reporting period of 1 July 2015 to 30 June 2016.

This Report is the seventh and final annual report covering the term of the previous Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda. Mr Gooda resigned effective 1 August 2016 to take up his appointment as a Commissioner for the Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory.

In light of the above, this report is presented together by the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner Gillian Triggs and Deputy Aboriginal and Torres Strait Islander Social Justice Commissioner Robynne Quiggin.

Chapter 1: Year in review

This chapter provides a snapshot of the key issues and developments that have affected Aboriginal and Torres Strait Islander peoples in the enjoyment and exercise of their human rights during the reporting period.

Discussion in this chapter focuses on the following issues:

  • The anniversaries of the Wave Hill walk-off from Kalkarinji by the Gurindji people, the Northern Territory Aboriginal Land Rights Act, the report of the Royal Commission into Aboriginal Deaths in Custody and the launch of the Close the Gap campaign 10 years ago
  • The continued impact of the Indigenous Advancement Strategy (IAS)
  • The Redfern Statement
  • Recognition of Australia’s first peoples in the Constitution and the place of broader treaty discussions
  • Progress of the Close the Gap Campaign
  • Justice issues including paperless arrest laws, fine default laws and justice reinvestment
  • Reform proposals regarding remote communities in Western Australia

Appendices 2 and 3 also report on:

  • the complaints of discrimination received by the Australian Human Rights Commission from Aboriginal and Torres Strait Islander peoples during the reporting period (Appendix 2)
  • Indigenous peoples’ participation at international fora including the United Nations Permanent Forum on Indigenous Issues (UNPFII) and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) (Appendix 3).

A key focus of chapter 1 is the ongoing disengagement between Aboriginal and Torres Strait Islander peoples and government, despite years of reports and recommendations advocating change. 2016 marks a number of important milestones in Indigenous affairs, such as the 50 year anniversary of the Wave Hill walk off and 40 years since the introduction of land rights legislation in the Northern Territory, a decade since Close the Gap Campaign and 25 years since the Royal Commission into Aboriginal Deaths in Custody.

We celebrate the reliance and courage of the Indigenous people who drove these significant positive changes.

We also recognise that there is a growing sentiment amongst Aboriginal and Torres Strait Islander peoples that conditions for many are deteriorating rather than improving. Rates of violence and suicide remain unacceptable. Punitive approaches to criminal justice issues in the states and territories are entrenched, incarceration rates of Indigenous peoples are on the rise and Aboriginal and Torres Strait Islander peoples continue to die in custody. The allegations of abuse inflicted on young inmates at the Don Dale Youth Correctional Facility in the Northern Territory particularly overshadow the release of this report.

There must be a greater focus on alternatives to custody including investment in individuals, families and communities. The Commission supports a ‘Justice Reinvestment’ approach to these issues, and reports on the Maranguka Justice Reinvestment Project, an initiative taking this path in Bourke.

From justice to health to Constitutional recognition; the Commission urges all governments to listen and act on the advice of Aboriginal and Torres Strait Islander peoples regarding the issues that most affect them, as outlined in the Redfern Statement.

Chapter 2: Indigenous peoples’ right to participate in the economy

Chapter 2 examines the rights of Aboriginal and Torres Strait Islander peoples to participate in the economy through greater choice, participation and control over their own income.

There is a history in Australia of Aboriginal and Torres Strait Islander peoples being subjected to income control and other forms of economic management and restriction by government. This initially occurred through a variety of laws that sequestered wages, property and savings, and continue to the present day via modern policies such as the Cashless Debit Card Trials and Community Development Programme.

Income is fundamental to the wellbeing and ability of Aboriginal and Torres Strait Islander peoples to realise other economic, social and cultural rights. These matters, along with the establishment of a variety of Stolen Wages reparation schemes are considered in chapter 2, including the need for a human rights and evidenced based approach to economic participation.

Chapter 3: Native Title

Chapter 3 provides an overview of the significant issues that have arisen in relation to the exercise and enjoyment of Aboriginal and Torres Strait Islander peoples’ native title rights and interests under the Native Title Act 1993 (Cth).

A brief overview of the native title determinations and agreements that have occurred during the reporting period is provided, along with consideration of the following significant cases:

  • Western Australia v Willis (2015) 239 FCR 175
  • Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776
  • Mingli Wanjurri McGlade (formerly Wanjurri-Nungala) v Registrar Native Title Tribunal WAS 137/2016

The primary focus however of chapter 3 is reporting on progress of the Indigenous Property Rights Project (Project), facilitated by the Commission and led by the Indigenous Strategy Group in consultation with the Indigenous Property Rights Network and key stakeholders.

The Project is an important mechanism for Aboriginal and Torres Strait Islander peoples to develop and lead a policy and legislative reform agenda to address challenges to self-determined economic development on the Indigenous Estate. The Indigenous Estate includes the rights and interests of Aboriginal and Torres Strait Islander peoples to land, sea, waters and resources held under native title law, state and territory land rights regimes, and extending to land held for the benefit of Indigenous peoples by government and other bodies.

Chapter 1 addresses issues and recommendations for reform with a particular emphasis on the following:

  • tools for securing, sustaining and optimising the Indigenous Estate
  • heritage protection and sustainable land use
  • risk and commercial use of the Indigenous Estate
  • sustainable business
  • managing the financial benefits of economic development
  • compensation
  • relationships and engagement

The vital Project work by the Indigenous Strategy Group and Indigenous Property Rights Network is ensuring that the benefits of the Indigenous Estate are maintained for Aboriginal and Torres Strait Islander peoples now and into the future.

Chapter 4: Universal Periodic Review

Chapter 4 looks at Australia’s human rights performance through the lens of the Universal Periodic Review (UPR) process, with particular reference to the human rights issues facing Aboriginal and Torres Strait Islander peoples.

This chapter includes information on Australia’s recent appearance before the United Nations Human Rights Council for the UPR, Australia’s adoption, implementation and monitoring of recommendations, and information on the UPR process more generally.

Importantly, this chapter also explores the value of a UPR monitoring mechanism based on the framework provided by the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). A number of case studies explore the issues of justice, health equality and remote communities to demonstrate how Aboriginal and Torres Strait Islander peoples and representative bodies might be able to develop their own indicators for monitoring the progress of the UPR over the next four years.