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Social Justice and Native Title Reports 2006

Social Justice and Native Title Reports 2006

A Community Guide

Community Guide Cover

A note from the
Commissioner

In my role as Social
Justice Commissioner I am required to produce two annual reports on Indigenous
human rights issues – the Social Justice Report and the Native Title
Report.

The reports, which are tabled in
federal Parliament, analyse the major changes and challenges in Indigenous
affairs over the past year. They also include recommendations to government that
promote and protect the rights of Indigenous
Australians.

This easy-to-read Community
Guide offers a snapshot of some of the key issues in both
reports.

An important part of my role is
to work with governments, Indigenous organisations and communities and many
other groups on practical human rights
projects.

Over the coming 12 months I
will:

  • continue to build partnerships and identify
    practical steps to ‘close the gap’ on Indigenous health
    inequality
  • work with Indigenous communities and organisations
    to provide human rights education on issues such as customary law and family
    violence
  • develop options for remote Indigenous education,
    now and into the future, in partnership with key groups
  • complete a second stage of research into
    Indigenous young people with cognitive (brain function) disability and the links
    to the health, education and juvenile justice systems
  • review the National Indigenous Legal Advocacy
    Courses
  • support an Indigenous Peoples Organisations
    Network to coordinate input into United Nations activities and share human
    rights information with communities in
    Australia.

I will also follow
up on the issues and recommendations in the Social Justice and Native Title
Reports.

Tom CalmaTom Calma is the
Aboriginal and Torres Strait Islander Social Justice
Commissioner.

Tom, an Aboriginal elder
from the Kungarakan tribal group and a member of the Iwaidja tribal group of the
Northern Territory, commenced his five-year term in July
2004.

As Commissioner he advocates for
the recognition of the rights of Indigenous Australians and seeks to promote
respect and understanding of these rights among the broader Australian
community.

Tom has been involved in
Indigenous affairs at a local, community, state, national and international
level and has worked in the public sector for over 30 years.

Generating economic development on
Indigenous land

In 2006 the
Australian Government amended the Aboriginal Land Rights (Northern Territory)
Act 1976
to make 99 year lease tenures possible over Indigenous townships on
communal land.
It is one of a number of
reforms that the Government has undertaken which aim to stimulate private
enterprise, economic development and Indigenous home ownership in remote
areas.

There is no doubt that
sustainable economic development is essential for the well-being of remote
Indigenous communities. But I am concerned that these changes can remove
Indigenous peoples from the management and governance of our affairs.

For instance, under the land tenure
changes, the government will maintain a 99 year headlease over the township. The
Government will then sublease individual land lots to individuals and
businesses. Traditional owners can negotiate conditions on the headlease, but
they will have no say over the details of the sublease.

These changes also have the potential
to entrench poverty, rather than reduce it. International research shows that
dividing indigenous land into small parcels leads to extensive administrative
costs, limited economic benefits for indigenous peoples and the loss of
ancestral lands. Both the United States and New Zealand are currently reversing
individual land titling policies for these very reasons.

Indigenous communities will not be
forced to agree to headleases. However, the Government is encouraging sign up to
agreements by negotiating annual rental payments with families who have
traditional rights over the township. Additional housing and infrastructure is
being offered to communities that sign
headleases.

While I congratulate the
Government for its goal of promoting home ownership and improving economic
opportunities for remote Indigenous Australians, research suggests that the
current approach will only be successful in a small number of Indigenous
communities.

Well situated communities
that are already well resourced, with good personnel and sound governance
structures are most likely to attract investment and access government grants
and subsidies. Communities on marginal land, with poor community infrastructure,
low levels of English literacy and no history of private enterprise will
continue to be economically
isolated.

And while the
Government’s home ownership scheme will assist some Indigenous people to
purchase their own homes, it will end up transferring the considerable costs of
maintaining ‘low cost’ houses in the harsh conditions of remote
Australia on to low income Indigenous families.

There are, however, alternative
approaches to generating sustainable economic development in remote Australia.
The 2006 Native Title Report includes case studies of Indigenous
communities that have been able to generate economic development at the same
time as building local skills and
capacity.

The case studies highlight the
value of involving Indigenous peoples in policy development, implementation and
agreement-making and demonstrate that the best outcomes for Indigenous peoples
are achieved when agreements are informed by principles and practices that
support Indigenous self
determination.

Building a
solid future: the Yarrabah Housing
Project

Located in Far North
Queensland, close to Cairns, Yarrabah is an example of an Indigenous community
determined to manage the development of its township and generate economic
growth.

Like the Australian
Government’s model, the Yarrabah Housing Project is based on the principle
of creating individual leases on communal land and encouraging Indigenous home
ownership.

The key difference, however,
is that the Yarrabah Aboriginal Shire Council, rather than a government body,
will hold a 99 year headlease over the Yarrabah Township. The headlease will be
held in trust for the traditional owners and the Council will also manage the
subleases for Yarrabah residents and
businesses.

The Council and the
community believe that home ownership is the best way to provide an economic
future for local residents and to reduce the community’s dependence on
government funding for housing.

The
Council is currently developing a lease proposal and a town plan. It also plans
to manage a large-scale housing construction project for the township through
its own construction company,
Y-Build. The
company will employ, train and develop a local Indigenous workforce with the
skills to build and maintain Yarrabah’s housing stock.

The Yarrabah Housing project is still
in its early stages. However, the Council is discussing all aspects of the
project with the community. Each decision – from leases and land tenure
through to the residential planning – is made with the informed
participation of Yarrabah residents.

For more examples of good practice
in generating sustainable economic development, see Chapters 3-7 of the Native Title Report
2006
.

National
survey: traditional owners on land and land
use

Last year I conducted a national
survey of Indigenous traditional owners and their representative bodies to
record their views and experiences regarding economic development on their land.

The survey found that the top priority
for traditional owners is maintaining their custodial responsibilities and being
able to either live on, or access, traditional land.

They welcomed the potential for
economic development but many said they lacked the capacity or support to
develop their ideas into a commercial
enterprise.

The survey also found
that:

  • there is no reliable research to identify the
    needs and aspirations of traditional owners
  • most traditional owners do not have a good
    understanding of the agreements on land
  • bodies with responsibility or potential to
    progress economic development are not funded to do so and have numerous
    statutory obligations that consume time and resources
  • less than half the Native Title Representative
    Body respondents said they were accessing funds specifically targeted to
    generate economic development.

For more detailed survey
results, see Chapter 1 of the Native Title Report
2006
.

Assessing
the new arrangements

An important
part of my role is to monitor the impact of the Australian Government’s
“new arrangements for the administration of Indigenous affairs” on
the lives of Aboriginal and Torres Strait Islander
peoples.

These new arrangements have
been in place since July 2004. The central goal is to address disadvantage by
reducing the barriers that prevent Indigenous peoples from accessing mainstream
government services on an equal basis.

Some elements of the new arrangements
– such as the establishment of Indigenous Coordination Centres (ICCs) in
regional areas and the appointment of ‘solution brokers’ –
have the potential to achieve positive results and deliver Indigenous-specific
and mainstream services in a complementary
way.

And the move towards developing
comprehensive and coordinated regional agreements to address identified
community needs is also sensible and timely, despite the slow progress in
finalising these agreements.

It is
clear, however, that there are a number of structural problems with the new
arrangements, including:

  • the lack of effective participation of Indigenous
    peoples in policy development and agreement making
  • the tendency for Indigenous-specific programs to
    be a substitute for mainstream programs, rather than a supplement to them
  • a focus on improving access to mainstream services
    for remote Indigenous communities, without a similar focus on the needs of
    Indigenous peoples living in urban and regional areas
  • no overarching framework of benchmarks or
    indicators to assess whether or not more Indigenous people are accessing
    mainstream services.

A rigorous
system of monitoring and review is needed to ensure that the new arrangements
deliver improved results for Indigenous peoples. I have recommended that a
federal Parliamentary Committee of Inquiry be established to report every two
years on the progress of the new arrangements and whole-of-government service
delivery to Indigenous Australians.

I
have also recommended that all governments – federal, state and territory
- adopt a human rights based approach (see Chapter 2 for more details) to more
effectively implement the new
arrangements.

A human rights approach
would shift the current government focus regarding program funding away from process and compliance to one based on achieving beneficial outcomes in the lives of Indigenous peoples. It also would build the
capacity of Indigenous communities to participate in making decisions that
affect them.

Giving Indigenous
Australians a say

The framework for
the new arrangements stresses the importance of ensuring ‘maximum
participation’ by Indigenous Australians in contributing to government
policies on issues that will affect them.

In many instances, however, Indigenous
policy is set centrally and unilaterally by government and then applied to Indigenous people - disempowering Indigenous
communities.

Policies, programs and
services will only be effective if they are established and provided in ways
that we can identify with and own. It is essential then that Indigenous
communities have a real say in how they are designed, delivered, monitored and
evaluated.

At the national
level

Over the past year, the Australian
Government has continued to use its appointed National Indigenous Council as its
primary source of advice on Indigenous policy. It has not sought to engage more
broadly with Indigenous communities on matters of policy development that affect
our lives.

The result has been a very
low level of Indigenous participation in public inquiry processes, such as
parliamentary committees, into issues of critical importance to our people.
Without effective Indigenous engagement at the national level, we risk further
entrenching and exacerbating Indigenous disadvantage in Australia.

Over the coming year I will work with
Indigenous organisations and communities to identify sustainable options for
establishing a national Indigenous representative
body.

At the regional and local
level

The government’s current
approach to engaging with communities at a regional level is to establish
Regional Indigenous Engagement Agreements (RIEA). The guidelines and funding for
RIEAs indicate a permanent shift away from engagement with regional Indigenous
representative bodies.

Another major
element of the new arrangements has been ‘direct engagement’ with
families and communities. While this is a worthy objective, Indigenous peoples
are not always in a position of equal power to negotiate with government.

There is an urgent need for credible
structures and processes that can support Indigenous communities to engage with
governments, be consulted and, where appropriate, give informed consent.

That’s why the importance of
having Indigenous regional engagement bodies cannot be overstated. The lack of
progress in the last year to advance any of the 18 proposed regional models is a
significant concern.

For a more
detailed analysis of the new arrangements and strategies to improve Indigenous
engagement, see Chapters 2 and 3 of the Social Justice Report
2006
.

Feedback on
Shared Responsibility Agreements
(SRA)

SRAs have become a prominent
feature of the new arrangements. They are an agreement where government provides
something to a community (over and above essential services) on the condition
that the community provides something in return (such as changes in
behaviour).

Last year my Office
conducted a national survey of Indigenous families and communities that had
entered into SRAs before January 2006. The survey looked at the content of the
SRA, the negotiation process and the outcomes. We received responses relating to
67 SRAs – a 62% response rate.

The results suggest that SRAs have the
potential to create or improve relationships between government and communities
when they are done well. Done poorly or without adequate consultation, they can
create disenchantment that may prove difficult to overcome in the future.

The
foundations of good policy – a human rights
approach

There needs to be a re-engagement with
Indigenous Australians on the basis of mutual respect and equality, with clear
processes and certainty of structures for Indigenous representation and
advocacy.

Tom Calma

A flaw in the Australian Government’s
current approach to Indigenous affairs is its centralised, ‘top
down’ approach to developing and implementing policies.

Indigenous policy urgently needs a
sound framework – one that is people centred and which recognises the
social and cultural diversity of Aboriginal and Torres Strait Islander
people.

A human rights based approach to
policy is focused as much on how policy is made as it is on achieving positive
results for Indigenous peoples.

It is
based on the following principles:

  • Commitment to human rights – all
    legislation, policies and programs that affect Indigenous peoples should be
    consistent with international human rights standards.
  • Engagement and participation
    effective frameworks are in place so that Indigenous peoples can participate
    effectively in making decisions about policies that affect our lives, based on
    the principle of free, prior and informed consent.
  • Capacity building and community development – governments and the private sector have a role to assist Indigenous
    peoples build community capacity in a way which respects Indigenous
    decision-making processes, authority structures and collective identity.
  • Supporting sound Indigenous governance – good governance is an important factor in generating sustained economic
    development but there is no “one size fits all” approach; governance
    models will vary between communities and evolve over time.
  • Fostering and recognising leadership – governments and the private sector can lead positive legal and policy
    change, as well as supporting leaders in Indigenous communities, especially
    those in the next generation.

A
human rights based approach to policy development would also see:

  • government agencies sharing information and
    experience with each other regularly in order to identify effective approaches
    and learn from mistakes
  • government funding set at a sufficient level to
    address the root causes of Indigenous inequality based on need
  • transparent and accountable frameworks in place so
    that the impact of policies can be accurately measured
  • a commitment by government to policy
    implementation and accountability.

Indigenous
rights on the global agenda

In
recent years a number of important steps have been taken to recognise and
protect the human rights of Indigenous peoples at an international level.

Reforms of the United Nations, such as
the creation of the Human Rights Council, should also make it easier for
indigenous peoples to have their concerns heard and their rights
promoted.

Some of the major
international developments include:

  • involving indigenous peoples in setting
    culturally-appropriate indicators for States in meeting the Millennium
    Development Goals

  • establishment of the Second Decade of the
    World’s Indigenous People
    (2005 to 2015) which aims to promote
    international cooperation to tackle problems faced by Indigenous peoples in
    areas such as culture, education, health, human rights, the environment and
    social and economic development

  • adoption of the Declaration on the Rights of
    Indigenous People
    by the Human Rights Council on 29 June 2006 after 20 years
    of development and
    negotiation.

The Declaration,
currently before the United Nations General Assembly, will be of the utmost
importance in combating discrimination against indigenous peoples.

There is widespread consensus on the
vast majority of provisions of the Declaration, with only a small group of
countries – including Australia – maintaining
objections.

Despite these very
significant developments, a major challenge remains for Indigenous peoples:
getting governments to implement their international human rights commitments in
national laws, policies and programs.

In Australia this can be compounded by
a lack of understanding about human rights within Indigenous communities and
limited engagement or representative structures through which Indigenous
Australians can advocate and participate in policy
development.

In this environment,
Indigenous organisations and other non-government organisations have a
responsibility to bridge this ‘information gap’ and help build
community awareness and capacity.

To
support them in this work, I will convene an Indigenous People’s
Organisations Network (IPO Network).

The IPO Network will play a dual role:
coordinating the contributions of Indigenous peoples to United Nations forums,
as well as sharing information about international developments with Indigenous
communities.

I hope that over time the
IPO Network will become an important link between international developments and
domestic processes and provide practical support to Australia’s Indigenous
organisations and communities in advocating and promoting their rights.

Close the gap on health
inequality

In my 2005 Social Justice
Report I laid out a major challenge for federal, state and territory
governments: to achieve health equality for Aboriginal and Torres Strait
Islander people within 25 years.

It is a
national scandal that Indigenous Australians live 17 years less than other
Australians and that our babies die at almost three times the rate of
non-Indigenous children.

However, rapid
improvements can be achieved in health outcomes through comprehensive, targeted
and well resourced government action and by working in partnership with
Indigenous communities and
organisations.

In April 2007, 40 of
Australia’s leading Indigenous and non-Indigenous health peak bodies and
human rights organisations joined forces to launch a campaign to “Close
the Gap” on health inequality.

The
campaign calls on governments to put in place firm targets, funding and
timeframes to address health inequalities, including providing equal access to
primary health care for Indigenous Australians within 10
years.

To find out more and to register
your support, visit www.humanrights.gov.au/social_justice/health/.

More
on Social Justice and Native
Title

Call 1300 369 711 to
order hard copies and CD-ROMs of the Social Justice and Native Title Reports and
for additional copies of this Community
Guide.

The Social Justice Report
2006
is available at www.humanrights.gov.au/social_justice/sjreport06/

The Native Title Report 2006 is
available at www.humanrights.gov.au/sociaI_justice/ntreport06/

If
you have comments or feedback please email us at sjreport@humanrights.gov.au

Dealing
with discrimination

The Human Rights
and Equal Opportunity Commission (HREOC) is an independent organisation that
investigates complaints about discrimination, harassment and unfair treatment on
the basis of race, colour, descent, racial hatred, sex, disability, age and
other grounds.

For free advice on
discrimination and your rights, or to make a complaint, call our Complaints
Information Line on 02 9284 9888, 1300 656 419 or TTY 1800 620
241
.

Information about making or
responding to a complaint is available at www.humanrights.gov.au.
You can also email us at complaintsinfo@humanrights.gov.au.