Jull, Peter --- "An Aboriginal Policy For The Millennium: The Three Social Justice Reports" [1996] AUIndigLawRpr 12; (1996) 1(1) Australian Indigenous Law Reporter 1

An Aboriginal Policy For The Millennium:

The Three Social Justice Reports

PETER JULL*



Three reports published in March and April 1995 reveal the new emphasis within Aboriginal and Torres Strait Islander politics. Growing consensus on, and consolidation of, this agenda promises the breakthrough needed for indigenous peoples to leave behind the vicious circle of powerlessness and social disadvantage.

Three indigenous-controlled national bodies, with good access to national political and policy processes, issued three independent reports: Council for Aboriginal Reconciliation, Going Forward (CAR report);[1] Aboriginal and Torres Strait Islander Commission, Native Title Social Justice Advisory Committee, Recognition, Rights and Reform (ATSIC report); [2] and Human Rights and Equal Opportunity Commission, Aboriginal and Torres Strait Islander Social Justice Commissioner, Michael Dodson, Indigenous Social Justice (HREOC report). [3]

The reports were prepared after wide consultations with indigenous communities around Australia. Workshop-style discussion sessions, lasting days at a time, were then held to thrash out directions and details. These discussions were often heated, but the benefit of their thoroughness is evident in the extent of agreement in and among the finished reports.

The results of all this work deserve the most serious support by policy-makers for two reasons. First of all, it is unlikely that as full and ambitious a national policy development process has ever taken place in any country, and certainly never under the control of indigenous peoples themselves. Even Canada's recent tenacious, indigenous focus on self-government emerged only slowly over time and after many fits and starts.

The second compelling reason for public and governmental support is that the three reports reach down into the deep layers of indigenous ethnopolitics for their strength and purpose. These are no mere lists of goodies or earnest platitudes. Rather, they are fundamental expressions of the will of indigenous peoples to survive and express themselves as distinct communities. They are also a principled and generous attempt to work out a relationship with contemporary Australia, in which both indigenous and non-indigenous peoples can live side by side in mutual respect and goodwill.

In mid-1992 the Mabo decision produced as much stunned silence as predictable expressions of outrage among non-indigenous Australians.[4] After all, terra nullius had as much currency as a moral fig leaf for policies of paternalism or attitudes of neglect as it did for law. The country would have to re-think its entire understanding of indigenous peoples; as many national figures had long advocated, new policies of acceptance and engagement were required.

Some Australian public figures, including some politicians in the outlying states, continue to believe, it seems, that social homogenisation and assimilation of minorities is the proper and progressive course. They appear to believe that culture is a personal habit like stamp-collecting -- for private amusement, but not of political import. They are wrong. The world, including Australia, has committed itself to respect for people and cultures where they live. Migrants may have no special rights beyond individual rights available to all, but a people living in its traditional territory, such as Torres Strait Islanders and Aboriginals, are defined and protected by a growing web of international agreements and standards. This is so regardless of national sovereignty being exercised by another people with other cultural values. Mabo was a reminder that easy assumptions of hegemony and cultural ascendancy are misplaced.

In Australia it became clear to the Federal Government and indigenous community that despite the obvious fallout from Mabo in the form of native title and land fund legislation, such measures would not suffice as a response. At that point a `social justice package' was promised as the third and presumably final element. However, the concept probably began as little more than a vague commitment -- a commitment to do something.

In the event, the sponsors of the three reports put together an `issues paper' with the ambivalent title "Towards Social Justice?" (CAR-ATSIC-OATSISJC paper).[5] This paper was distributed widely. It was to serve as the guide for individuals, organisations and communities, wishing to put forward proposals for social justice. In its summary of topics there were the usual familiar items, the items one might call the traditional agenda for indigenous policy. However, another section was inserted into the middle, a section distinct in style and content:

Recognition and empowerment

1. Recognition, in the Australian Constitution, of the special place of indigenous peoples in Australian society.

2. Greater measures of self-government for Aboriginal and Torres Strait Islander communities.

3. Regional agreements between indigenous peoples and governments which seek to set out rights and benefits.

4. Clarification of sea rights.[6]

Of course, these items were not really new, but they were previously considered indecent. One did not mention them in polite or at least political company. The public was not ready, one was usually told, which was really a way of saying that many politicians were not ready.

As with most issues of indigenous policy worldwide, the public understood little of such obscure and apparently anomalous matters. However, the public is sometimes prepared to support action once its conscience is awakened, or when it is informed by political leaders that this or that measure is in keeping with an enlightened country or in some way necessary.

Trade unionism, federalism and indigenous rights are all alike in their defiance of easy logic. None might naturally arise in a simple and undifferentiated universe, but each has arisen as a response to social complexity and history. Each becomes quite logical as a device to restore equilibrium and to assure or promote justice in particular times and places.

Indigenous rights do not pertain inherently to an indigenous society. After all, they only become necessary when another society restricts or annexes or conquers indigenous societies, whose own internal decision-making, politics and law are thereby constrained. Then indigenous rights come into the picture as a way to enable indigenous peoples to regain or retain some autonomy and human dignity in relation to another society -- almost a code for `foreign relations', one might say. It is worth remembering that Mabo was as important for recognising indigenous processes of assigning ownership as for defining limits for state power in Australia.

Constitutional Reform

After placing the four important subjects of constitutional reform, indigenous self-government, regional agreements and sea rights clearly before the public, the issues paper explained a little about each area and invited comment.[7]

If anything, the social justice consultation process was almost too open and unstructured. It may not be doing a favour to anyone to toss out a subject like constitutional reform and expect an unprepared audience to discuss it in any meaningful way. There are some reports of consultation meetings where those trying to discuss these issues were discouraged by members of the consultation teams who, it was noted, seemed not to understand the concepts themselves. Nevertheless, constitutional reform became the underlying theme of the whole social justice exercise in Australia -- and of the three reports.

Each report devotes prime space to the subject. In fact, the Council for Aboriginal Reconciliation places "Recognition and empowerment" at the front of its report and gives it the most space of any subject. The ATSIC report leads into the same subject from the outset, building up through chapters on "Linkages with Other Developments" and "Rights". Indeed, one of the main values of the social justice process was a move away from the satisfaction of needs by others to the exercise of rights by indigenous peoples themselves. When ATSIC reaches its main theme, a careless proofreader of the table of contents renders the chapter "Recognition and Employment". However, there is no mistake about the content of the chapter.

The Council for Aboriginal Reconciliation appears to take a position on one of its fundamental terms of reference, namely the question of a national document or documents for reconciliation:

The Council recommends that all political parties acknowledge the value of one or more documents to formalise the position of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.[8]

In its discussion of this issue it refers readers back to a fuller analysis and discussion of the issues in its major three-year report released earlier.[9] Presumably such documents will ultimately do more than simply state that Torres Strait Islanders and Aboriginals were here first. For instance, the examples given in the Council's 1994 report include "regional agreements" (discussed below). The danger and difficulty with documents is that some politicians will offhandedly denounce any document, leaving their parties no place to stand. As long as Australia holds itself hostage, in effect, to the willingness or timetable of the most reluctant jurisdictions, i.e. Western Australia, Queensland and the Northern Territory, it will not develop a policy which is credible or defensible to the world. Indeed, the clearest message from the social justice consultations around the country, and therefore a constant theme in workshops thereafter, was that indigenous people have little or no faith in the goodwill or fair dealing of State and Territory Governments. They want the Federal Government to take over indigenous policy and programs fully.

The ATSIC report recapitulates and endorses the reconciliation process in a chapter on `linkages', while working its way to its major themes of rights and constitutional change. It then notes that the `centenary of federation' process is also important, and concludes:

A Commonwealth commitment to facilitate Constitutional reform to provide recognition for indigenous people is of particular symbolic importance to the centenary as it brings together aspirations for redefining nationhood, reconciliation and the inclusive involvement of indigenous peoples in Australian society.[10]

While this is true, it is important that Australians be under no illusions. As one of the background papers for the social justice work noted, there have been two recent national attempts to amend national constitutions in Norway and Canada.[11] In Norway a single clause was inserted following the recommendation of an expert commission with a small minority of indigenous members; there was virtually no open process at all. In Canada, on the other hand, the process began in 1978 with an invitation to indigenous groups to present proposals. It became clear very quickly that no mere fleeting reference or platitude in a preamble, as envisioned by some non-indigenous politicians, would begin to meet the needs of indigenous peoples. On the contrary, such cosmetic change was more likely to anger them with its sheer insufficiency. At the same time, it was clear that authentic constitutional renewal for the country as a whole could not wish away the original inhabitants. That is also the situation in Australia today. In light of the disappointments of the 1988 bicentenary of white settlement, the centenary of federation must succeed.

Indigenous constitutional work must be seriously prepared. It must also go some distance to meeting the needs of indigenous peoples, or at least open up a process through which indigenous peoples may expect to have their needs met. It cannot be done quickly or in a slapdash style. Work must begin soon if there is to be any serious hope of an outcome in time for the year 2000 or 2001, and indigenous peoples must really `own the process', to use the current phrase.

The ATSIC report moves sensibly into the heart of the subject. It makes use of an excellent background paper on indigenous constitutional issues and possibilities by Frank Brennan, published during the social justice consultation phase.[12] ATSIC's recommendations call on the Commonwealth Government to "adequately resource a process to manage the indigenous constitutional reform agenda...".[13]

The subject of political representation, such as the Maori seats in the New Zealand Parliament, is also discussed. The Sami Parliament in Norway is mentioned in this context. While it is hoped the Norwegian model will develop quickly and have a real role, the Sami Parliament was founded only in 1989 and to date has been unable to develop much policy or have any great political impact. It also has virtually no roles but advisory ones. The ATSIC Commissioners and other indigenous leaders already have more access, profile and clout of various kinds vis-à-vis the Federal Government in this country. Nonetheless, some blending of the Norwegian and Australian ATSIC models might be very interesting.

The Sami Parliament is elected nationally, with urban Sami in the south able to elect members, as well as the core Sami districts on and inland from the Arctic coast. Of course Sami language and culture in all regions are closely related aspects of a single culture, unlike the many distinct regional peoples and cultures of Australia or North America. In a country where Sami have been `invisible' for so long, and the non-Sami majority are fond of imagining themselves as a monoethnic, monocultural community, the Sami Parliament has an important symbolic role. However, Aboriginals and Torres Strait Islanders are already highly visible in Australian public life. As a Norwegian anthropologist pointed out to me in Darwin one day, Scandinavia has nothing like the Australian outback phenomenon of non-indigenous pensioners travelling to the end of the country and scaling rocks in forty-degree heat to marvel at indigenous rock art and lore. Indigenous peoples in Australia are doing very well in terms of recognition; they are ready to move on to the substantive aspects of constitutional recognition.

The HREOC report goes another step in its discussion of constitutional reform. In fact, the entire 48 pages of that report are, in a very real sense, a constitutional discussion. The report may be valuable not only for outlining the sorts of issues which will concern indigenous and non-indigenous Australians as they enter this brave new world, but for providing some previews and advice for the journey. When one considers how much misinformation and fearfulness is spouted by sections of the Australian non-indigenous community, this may be an important contribution. Instead of a fanciful map with sea monsters, dragons hiding in the trees, and mythical terrain, it presents a landscape which is not really so unfamiliar.

When the Canadians began their indigenous constitutional work they had nothing to guide them. One of the few bits of real wisdom offered at the outset came from Conservative Minister Bill Jarvis while assisting Prime Minister Joe Clark with constitutional issues, in the Minister's speech as Federal Chairman at the first formal federal-provincial-indigenous meeting at ministerial level:

I have no doubt that many of the achievements from this process will be in the form of intangible benefits or "spin-offs". As much as we may eventually want to find new words for the Constitution, we are here as well to take account of the broad relationship of governments and native [i.e., indigenous] peoples and seek to improve it... Work has to be done together. Everyone knows that we are not dealing with subjects where someone can walk into a room and deliver a position and expect people to agree and go home. All of us, and I stress the word all, are going to need to explore each other's concerns and vocabularies. One of the reasons we will need to do this is because there exists no generally accepted language or experience for some of the work we must undertake. Such a process requires a commitment to meetings, however informal, to discussions, and to patience... The challenge for all of us is that here we may have to come to terms with perceptions of history, society, even law, which are new to many of us. It is clear that our past practices have not adequately permitted this, and I need hardly refer to some depressing social statistics to illustrate this point... Canadians are coming to realize that the problems of alienation are not simple but often rooted in long periods of unresolved grievances and thwarted aspirations. All governments have experienced the costs of failing to solve these difficulties; what we must do now is show that our Canadian federalism provides opportunity for all peoples to fulfil themselves. Our legal and political systems have always been flexible enough to accommodate such diversity. Our only guarantees of success, however, are open minds, understanding and goodwill.[14]

Australians are sometimes surprised that in Canada the Liberals and Conservatives have been just as vigorous in their support for indigenous issues in recent times as the party of labour, the NDP (New Democratic Party). In the United States, also, Republicans have been often more supportive of indigenous rights than Democrats. If Australians would stop thinking of indigenous issues as presenting some kind of radical agenda and see that these issues require only the merest regard for common law principles and moral justice, much futile partisan bickering at the expense of indigenous needs would end. If the Council for Aboriginal Reconciliation could achieve such a change in attitude, it might be the very best outcome that remarkable body could attain. Perhaps no other body is so well placed to do it.

The Canadian process, at least in the 1980s, was not well prepared in relation to indigenous issues. Unused to the sometimes obscure and pettifogging practice of inter-governmental relations in Canada, indigenous teams found it difficult to work their way into the rhythm of that way of doing things. They counted too highly on the impact of public support -- which they enjoyed -- while too often lacking other skills required to turn that support into sufficient negotiating capability. While it has been popular in indigenous circles to blame governments in Canada for the ultimately disappointing outcome at the end of the first series of conferences in 1987, the wisest heads among the indigenous delegations have mulled over what they themselves might have done differently.

Of course, no fair-minded person would expect Canada's `executive federalism', as the process of inter-governmental negotiation is known, to produce many new ideas or startling outcomes. Some might even say that such is not its purpose. Australians are certainly on the right track when they say, as do the three social justice reports, that special-purpose processes must be found to advance indigenous constitutional needs most effectively.

However, one must not dismiss the Canadian experience in the 1980s too lightly. Indigenous groups, after all, did achieve the amendments written into the Constitution Act 1982. What is more, the conference processes, which ended in 1987, achieved a massive education and turnaround of the Canadian non-indigenous public on the issues of indigenous rights and self-government. It introduced a whole generation of articulate, able and even charismatic indigenous leaders to ordinary Canadians -- a fact which did not always make the Premiers comfortable by comparison. The upper echelons and best policy makers of Canadian federal and provincial governments became involved in indigenous issues for the first time, and regardless of what they lacked in familiarity, they provided a pleasant change from the hopeless welfare-style approach of colonial-style indigenous administration around the country. Indeed, that gamble was in the minds of some of those who promoted the conferences -- they believed that unless a breakthrough occurred in the official handling of Canadian indigenous affairs, the country was on a one-way trip to civil unrest or Northern Ireland-style political violence.

The Canadian exercise provided indigenous people most importantly with some hope and faith in a governing system which had long failed them. That hope was shattered in March 1987. When the last in that initial series of constitutional conferences ended in a failure to agree on the constitutional wording for a self-government clause, the Mulroney Government foolishly thought it could tiptoe away from indigenous issues. Official Ottawa advisers, apparently thought that if the Government issued no statements and made no loud noises or sudden breaks with past funding, perhaps they could carry it off. The conventional wisdom in Ottawa was that indigenous peoples were an ungrateful lot who never gave any political pats on the back and always wanted more, even when their latest demand had just been met.

The Oka crisis, and sympathy incidents in support of Oka across Canada in mid-1990, revealed the flaw in this logic. With Canadian and Iraqi tanks competing for world television coverage, it was not surprising to anyone acquainted with the Canadian indigenous scene that some such explosion should occur. What was surprising was that the indigenous reaction to the loss of a forum for high-level political negotiations had taken so long to materialise: two and one-half years. Nobody could accuse indigenous leaders of being hotheads. On the contrary, they mulled over the failed constitutional talks for a long time. They brought the Pope to the country for a photograph opportunity in the Sub-Arctic to urge Canadians to extend social justice to indigenous fellow citizens. They sought to re-open talks with governments. They put their case in reasoned and public form, proposing amendments or additions to the Meech Lake constitutional accord, negotiated by the Prime Minister with the Premiers, mere weeks after the failure of the indigenous conference in 1987.

It is important, in other words, to look at indigenous constitutional reform in broad terms. The HREOC report does that:

Constitutional reform involving Indigenous peoples can take three main forms:

1. the amendment of the national Constitution which came into force in 1901 (or creation of a parallel document or process of reconciliation);

2. change in the general structures of Australian political life of which the national Constitution remains the summit, but which can include re-organisation of responsibilities and relations among governments whether by Constitutional amendment, other laws, or other politico-administrative arrangements; and

3. the creation of local `constitutions' providing for the powers and procedures whereby Indigenous communities

or regions manage their own affairs to a greater or lesser degree.

These three processes are by no means mutually exclusive.[15]

Those are the key processes, and Commissioner Dodson points out the content of such work:

For Aboriginal and Torres Strait Islander peoples, constitutional reform has three main potential uses. It may provide:

* recognition as unique peoples with a special place in Australian history and society;

* secure protection of rights which are now recognised, for example, native title, or rights which may be

recognised or negotiated in coming years; and

* processes or frameworks by which we may strengthen or develop our societies or define our rights in future.[16]

Commissioner Dodson notes that one or more documents could be drawn up, such as a `reconciliation' document:

Such a document could be recognised in some form in the Constitution, or could become the framework for a special institution created to make progress in honouring and implementing its provisions. There are many examples of such documents advancing Indigenous rights around the world -- the 1751 Lappecodicilen applying to the Sami of Norway and Sweden, the Royal Proclamation of 1763 and Jay Treaty of 1794 for Indians of both Canada and the USA, the 1840 Treaty of Waitangi, the 1948 Faroese home rule, the 1971 Alaska Native Claims Settlement Act, the 1975 James Bay and Northern Quebec Agreement, [the 1978 Greenland Home Rule Act], the 1987 Iqaluit agreement between Inuit, Dene, and Métis of Canada's Northwest Territories, etc.[17]

Less important than the details at this stage, however, may be the attitude with which such reform is approached. The whole point of drawing on the higher areas of law and political recognition, such as constitutions, is to give indigenous peoples higher and more visible security. It is intended to send a signal to the whole of society and to commit the country irrevocably to a new relationship with the original inhabitants. The purpose is to break old habits and to instil some new ones.

Australia has many capable indigenous organisations. They are usually well staffed by dedicated and highly qualified indigenous and non-indigenous persons working together as a team. They have a very high level of political savvy and are extremely effective at dealing with program and service issues which arise, and with some areas of policy. However, the move to new processes urged by the three social justice reports is a new situation. This work goes well beyond the usual reflexes and requires real reflection.

Commissioner Dodson notes this need in his "Introduction: A Framework for Social Justice":

A fixation on the nuts and bolts of implementation and manipulation of existing approaches and administrative structures has prevented policy makers stepping back sufficiently to take a look at the entire approach. In a policy area like Indigenous affairs, matters of philosophy are central. For example, policies flowing from the basic assumption that Indigenous persons simply need to be allowed to compete equally as individuals in a predominantly European-derived society will differ markedly to those that flow from an approach that values different cultures with their different traditions and practices.[18]

He concludes that:

The processes by which Aboriginal and Torres Strait Islander people negotiate the new framework for community with our fellow Australians may be no less important than the actual outcome. By joining in the enterprise of Australian nation-building as equals and by having genuine opportunities to design our future within Australia, Indigenous peoples can begin to solve endemic socio-economic problems as well as commit ourselves to a shared Australian community.[19]

However, the CAR report may go a little overboard when it tells us that:

If Australia can get the social justice package right, it would actually lead the world in the way it has handled indigenous rights. Australia has the most progressive approach to indigenous issues internationally because of the intensity of the debate in this country.[20]

After all, leading the world takes more than a press release or a couple of years of a single governmental term to deal with problems having a deep and bitter background. However, the Council for Aboriginal Reconciliation is right about the importance of the social justice package to Australian credentials. Essentially, the social justice process is an invitation to produce a national policy, demonstrate a national commitment to the just settlement of outstanding grievances, and harness national energies to remove socioeconomic disadvantage. The current Prime Minister has elevated the subject of indigenous rights to an important subject for his own attention. This level of discussion and negotiation of the major issues -- between the head of government and indigenous leaders -- is an important precedent to maintain.

The place of indigenous peoples in Australia is a constitutional issue any way one looks at it. It requires direction and oversight from the highest level of government. Even where committees of ministers -- federal, or federal and state -- are assigned the task of looking into one or other particular issue, the head of government or a very high-level steering committee must maintain the momentum. Such a device would have helped the Canadians achieve more during the constitutional process of the 1980s, although many indigenous leaders viewed the proliferation of issues and forums as a threat or distraction to the central business of amending the Constitution as a document. They were probably wrong.[21]

Following on from the three social justice reports, indigenous peoples can now focus their political energy and resources more easily and effectively on some widely shared goals. Governments, too, will have some reason to believe that they can deal with a more defined and achievable indigenous policy agenda and make measurable progress, rather than episodically throw some palliative dollars at problems whose resolution they scarcely believe possible. All this may yet provide the institutional reforms and a new constitutional order, which have become familiar goals for the year 2001 expressed in both indigenous and non-indigenous public statements.

Unfortunately a sizeable chunk of the Australian community, especially in the outlying States and Northern Territory, and among Coalition supporters, seem unprepared for such movement. This may be as much the result of a need for pitching information and argument at the ignorant or unconverted as any deep-dyed resistance to change. Too much indigenous policy discourse is accessible only to the converted, despite the availability of skilled and articulate indigenous spokespersons to put the case so that any Australian could grasp it. One cannot allow the fringes to veto progress. To fulfil frequently expressed hopes for Australian national identity and purpose, one must recognise and include indigenous peoples as peoples, i.e. as whole communities.

Self-government

Self-government is viewed in Australia primarily as an aspect of regional agreements (see below) or in relation to the question of federal-state-territory funding of indigenous services. This latter subject is dealt with as a separate chapter in the HREOC report,[22] supplemented by resource materials provided in volume three of that report. This reflects a grassroots movement in parts of Australia by local indigenous people to take over services from governments who are deemed to be incompetent or insensitive, or who are simply not passing on funds intended for indigenous needs. No subject received more angry emphasis in the social justice hearings around the country.

The unsatisfactory living conditions in many indigenous communities around Australia are the most visible sign for most non-indigenous people that public policies have failed. The tragedy of health statistics, in particular, seems to have attracted serious public and political concern. These matters must be dealt with as a whole; that is, the physical, social and cultural condition of communities as a whole are interrelated. It is no coincidence that the HREOC report identifies as a first urgent Australian study abroad the way in which Norway brought the living conditions of all residents in its impoverished North, both Sami and non-Sami, to the extremely high levels they enjoy today.[23] However, similar post-War programs in Greenland reached a plateau, until the Danes realised they also had to turn responsibility for the running of society over to the local indigenous people. The essence of indigenous self-government is that people are not merely passive recipients of kindly designed benefits; they are dynamic human communities with a right to politics and policy making.

Regional Agreements

The question of `regional agreements' proved initially difficult for some of those involved in preparing the social justice reports. However, they were able to draw on a two-part article published during their consultations, and they included one of its authors among their consultants.[24] The same authors also published a book on regional agreements in the weeks when the social justice reports first appeared.[25] ATSIC took the initiative of holding a conference in Cairns, in May 1995, to elicit further discussion of the possibilities, a conference at which a useful summary of an earlier workshop was released.[26] ATSIC will publish proceedings of its own conference soon. There will then be a small number of materials available to assist discussion, in addition to the wider range of recent background studies of various types on regional indigenous problems and problem solving in Australia and abroad. It is understood that governments also have prepared some in-house studies, the quality and accuracy of which are unknown.

As a veteran of some regional agreements in the Northern Hemisphere, and long-time observer and friend of others, I have found some discussions in Australia very frustrating. Otherwise serious people and careful researchers in government and academia have come up with descriptions and commentaries which bear little resemblance to the facts. Some of these commentaries appear to be aimed less at revealing the actual workings of overseas experience than at justifying past Australian politico-administrative conservatism in indigenous policy. If patriotism is the last refuge of the scoundrel, it is especially so in attempts to delay or justify delay in the recognition of human rights of disadvantaged and aggrieved groups.

The level of controversy which has arisen around regional agreements is not easily explained. Of most obvious value to indigenous territories in the north, centre, and west of Australia, the concept has been criticised for not being so obviously applicable to Sydney or Melbourne. Rather, a detailed case for such urban application has yet to be made. For indigenous cultures whose fundamental identifying qualities were the imperatives and specificity of place, it seems strange to demand now that `one size fit all' in policy terms. As it happens, the aspect of regional agreements which has been the most attractive to its advocates is precisely its flexibility or adaptability to circumstance. Loosely, of course, an agreement may cover absolutely anything that can have a regional dimension and is therefore perfectly applicable anywhere.

The overseas models in Alaska, Greenland and Northern Canada are impressive and workable; substantial territories there see administration and increasing self-governing powers in indigenous hands. Clearly these deserve more examination by Australian indigenous political leaders and organisations. However, genuine examination is needed, not the sort of flippant one-liners and put downs which pass for overseas impressions among so many officials and other travellers. This problem has bedevilled the discussion of regional agreements frequently in my hearing in the past year. It is a more general problem, and one which Australia, of all places, as a leading practitioner of comparative policy studies in the world, should be well placed to cure. For instance, I have proposed to Canada's Royal Commission on Aboriginal Peoples that they develop a voluntary code of conduct for manners and inquiries abroad so that study travel and exchange visits are more productive and responsible. This proposal was prompted by my experience with Canadians discrediting comparative study: Canadians abroad taking home misinformation about other countries, e.g. Australia and Greenland, while indigenous representatives from Canada spread misleading and sometimes malign commentary on the Canadian indigenous experience. Such study must be open-minded and seek to get at the facts, while those conducting studies must be aware that quick conclusions that "we are ahead of them !" are almost certainly facile or wrong. Governments and indigenous groups have relied far too much on casual comments by bored or ill-prepared travellers.

Context is also important in understanding agreements. That is something which does not always appear in summaries of arrangements or agreements, but which may be the key to their effectiveness. In a subject like regional agreements, where there is serious Australian consideration and debate being given, study visits are required, as well as serious review of documentation. Such documents are usually only available in the country concerned. It is also important to talk to those who have made agreements and made them work, and who work with their outcomes. In Canada, for instance, there is a small industry made up of persons who have failed to negotiate agreements, yet whose claims to be considered experts on the subject are not any the less for that.

Until indigenous peoples, officials and academics in Australia habitually take their frame of reference to be the entire `first world', they will forever risk being out of touch with promising developments. In the Northern Hemisphere there is such a strong international network among the people with regional agreements, or in the process of devising them, that national governments have joined in the networks and now are engaged in many joint problem-solving efforts. In this cooperative spirit, many new ideas and projects are bubbling up, ones from which Aboriginals and Torres Strait Islanders should not only benefit but in which they should participate. It is that cauldron in which the world's leading-edge standards are being created, after all. The hard daily work of indigenous policy making and political structural reform year-round, not simply the annual frenzy of negotiated resolutions in Geneva, must be opened to Australians. For that reason the HREOC report's call for a number of active measures, involving Parliament no less than indigenous organisations, should be welcome.[27] Australians have as much to offer as other countries, but at the moment, they are sadly absent from the action.

The regions for which regional agreements are being devised overseas are emerging as a new order of world governments. Whatever the limitations placed on them by national governments, the reality is that they acquire more powers, undertake more tasks and attract more loyalty than many formal documents would acknowledge. Given the Brundtland Commission's call for recognition of indigenous management in the world's sparsely settled, sparsely developed hinterlands, it is easy to see that they have an even more urgent role to play in the years ahead.[28] The Brundtland report mentioned Australia by name in these recommendations, and could have mentioned Northern Scandinavia no less -- where Sea Sami and Reindeer Sami face complex difficulties and official resistance in the search for regional agreements on their rights, resources and development. Just as the work of the Aboriginal land councils and Torres Strait Islander bodies has already attracted interest in the Northern Hemisphere, so their efforts might logically become the Australian anchor for a world initiative of indigenous land, sea, and resource rights and development. Their hard-nosed politics and practical experience of governing realities would especially appeal to Northern Hemisphere counterparts.

The Sea

The CAR report has little to say about the sea as a special issue, preferring to include it within general questions of indigenous harvesting, camping and traditional use of resources. The ATSIC report notes the need to include indigenous coastal zone concerns in any governmental decision-making. However, it also notes the initiatives of Torres Strait Islanders in this field and enumerates the principles they have advanced for a comprehensive marine strategy.[29] Since the social justice reports came out, the Croker Island people in the Northern Territory have taken the matter in hand with their sea claim before the National Native Title Tribunal.[30]

The HREOC report notes sea rights as a possible topic for constitutional work, under its wide definition of `constitution', and also envisages it as an important topic in some regional agreements. However, the most emphatic proposal in the HREOC report is found in its chapter "International Connections". The report notes:

In the past two years Torres Strait Islander leaders have forged links with Canadian and Greenland Inuit, Norwegian Sami and Pacific Island nation leaders and found much common interest in marine and sea resource management issues. The Torres Strait Marine Strategy has attracted considerable interest in those countries.[31]

Indeed, when Torres Strait leader Getano Lui, Jr. visited the Arctic coast of Norway in late 1993 for an International Year of Indigenous Peoples conference, he and his staff found as much interest among local Sami and experts in Torres Strait as his delegation had in Sami marine concerns.[32] There has now been a considerable exchange of documentation. Nonetheless, many indigenous peoples abroad, no less than in Australia, are in the early and difficult stages of their marine policy work. There is every reason to suggest some practical cooperation, and the HREOC report does so:

A workshop on Indigenous marine policy issues and needs bringing Torres Strait Islander and Aboriginal representatives together with such overseas peoples as Coastal Sami, Inuit, and Indian First Nations of Canada's Pacific coast, and South Pacific peoples, should be held. The workshop would also consider the usefulness and feasibility of an ongoing international Indigenous marine network of peoples and organisations.[33]

When the Resource Assessment Commission issued its Final Report on the Coastal Zone in late 1993, the report to which the new Commonwealth policy is a response,34 it drew on overseas experience in its discussion of indigenous peoples.[35]

The new Commonwealth Coastal Policy may be progress of a sort in that it acknowledges that indigenous peoples have a role in coastal policy, and it would see some funding reach them for coastal work. However, it must be seen as a major disappointment that its talk is of incorporating views and allowing indigenous participation. The policy entirely misses the point: indigenous peoples must be seen as the primary users of, and experts on, certain marine eco-regions with prior rights. One fears an outcome like the current trend in research on Aboriginal fire management: when the fish and people are gone, gentle souls from southern universities will be sent to the north coasts for their MA and MSc research on vanished maritime cultures. However, it is possible that this whole national policy is a case of treading water until elections are past; its calls to universal niceness and cooperation are as invulnerable to criticism as they probably are futile in effect.

One World

Indigenous policy today is a global affair. Successive prime ministers have been saying for thirty years that Australia must meet international scrutiny and standards. This is an obligation which is especially stern for the most developed European-peopled countries like Australia, New Zealand, the United States and Canada -- i.e., those countries which, in the eyes of the international community, have reputations of past colonialism and racism to live down.

Prime ministers apart, the concept of international responsibility has not sunk very deeply into political or official minds. Despite its importance in the background of contemporary Australian awareness and policy reform, the international context is remarkably absent in the CAR and ATSIC reports. The authors come by this honestly. In the fine snapshot of indigenous preoccupations which is the CAR three-year report, Walking Together: The First Steps,[36] there is no reaction recorded regarding the international paragraphs in the second of the CAR issues papers.[37] Although the rest of that issues paper was fruitful, the international dimension sank without a trace. It was not an issue in the CAR-ATSIC-OATSISJC paper either, although a few submissions in the consultation hearings, such as that of the Island Coordinating Council of Torres Strait, brought it in.[38]

There is much good reason to make indigenous internationalism explicit in Australia. To put it at its most crude, overseas precedents for actions or policies which indigenous peoples wish to see at home can help disprove the arguments of their home governments and public who resist such reform -- "No, regional agreements do not fragment the nation-state; rather they allow marginal peoples and regions to join it. Etc.". Sometimes, too, foreign example is simply a way of reminding people who are discouraged by the frustrations of political inaction that action and progress are possible, even in similar European-peopled countries with the same negative attitudes towards indigenous rights and indigenous cultures.

The HREOC report explains the international context thus:

Indigenous peoples throughout the world have contemporary grievances and all have suffered dispossession of territory, denigration of culture, marginalisation, assimilation, and social ills. In many countries today the lives of Indigenous people are at risk from brutal governments and brutal colonisers. If we were to dwell only on the many problems remaining, we would be immobilised by despair. What we must do instead is build on positive measures which have begun to emerge in some countries. Nobody would suggest that any country has solved Indigenous problems, but at least there are examples now appearing of general policies, specific initiatives, or unforeseen outcomes which return self-worth and decision-making to peoples previously marginalised.[39]

In other words, no country has any right to pride, and all countries have a miserable and sordid history in majority relations with indigenous peoples. However, specific countries, especially in the post-War period, have tried various means of improving the situation, and through painful and slow trial and error they have arrived at some policies, structures, programs and political accommodations which are interesting and promising. Those countries all worked alone, embarrassed about any international scrutiny, progressing slowly. However, two countries that have the whole world to survey as they search for urgent new approaches are democratic Russia and Australia. The indigenous peoples of Russia and their academic friends have been working through the Inuit Circumpolar Conference and other networks to see what they can learn of value from North America and Northern Europe. In Australia, there are some similar initiatives.

Of course, in Australia, as in all other countries, there are persons who resent and resist foreign comparisons. These fragile or blighted spirits apparently need to feel that some special virtue attaches to them for the mere fact of having been born here rather than there. They discover exaggerated wonders and delights in the immediate and justify their own lack of wider vision or experience in celebration of the parochial. However, they should not be allowed to inject their hang-ups into serious discussions such as those on human rights or indigenous policy. In those fields the local and the general or universal continually inform each other. While it is interesting to consider local dimensions in political culture or policy making, these things must not be used, as they inevitably are, to justify reaction or denial of rights.

Australians should be aware of certain risks here. They are particularly dangerous during a time of ethnonational assertiveness, such as the present period in Australia. Just because the Australian republican and nationalist tendencies are now being led by social progressives, by and large, does not mean this will always remain so. Xenophobia is no stranger to Australian attitudes or policy, after all. If we are trying to define and celebrate what is Australian, then by implication there are other things which are un-Australian, a term appearing more often in politicians' mouths these days. If we define whom to include, we also exclude others by default. In the 1950s, after all, the innocence and self-advertising goodness of white picket fence American identity was promoted on television alongside the evils and interminable hearings of Senator Joe McCarthy. As for indigenous peoples, twentieth century Norway and Quebec are two examples of essentially progressive and reformist ethnonationalism quickly becoming a threat to indigenous peoples and the survival of their homelands, rights and cultures.[40]

One streak of Australian political reaction is especially concerning. Some politicians in Canberra and the States, persons who are themselves free of any resistance to non-Anglophone or Asian persons, will nonetheless send delegations or make the trek themselves to sit at the feet of the Northern Territory Cabinet to learn the `facts' about Aboriginal relations. Whatever the worthies in Darwin have to teach, it is not sensitivity, understanding or accommodation where indigenous peoples are concerned. In other words, among otherwise comfortably enlightened and modern Australians, there is a double standard whereby indigenous peoples lie outside the zone of basic tolerance and acceptance extended to the rest of the human race. This is disturbing, to say the least.

International standards, like international precedents, are the necessary corrective. They may be the only corrective. The international consensus of progressive specialists is usually ahead of the situation in any one country and often provides leadership or expertise to individual countries in their development of new approaches. The most advanced national expertise on indigenous policy may be variously located -- among international law specialists in Australia and Norway, among common law lawyers in Canada, among social anthropologists in the Nordic countries, among environmental scientists in a variety of jurisdictions, among a few thoughtful and long-suffering officials in all jurisdictions -- and this fragmentation has delayed reform.

There have been some mutterings lately at conferences and elsewhere in Australia, which indicate that in the enthusiasm for a grand new policy for the millennium, some people who should know better are affecting to discover special virtue in the Australian status quo. That is, the proven failure of a centralised and firm paternalism is being dusted off and invested with some misplaced sentimentality as being uniquely Australian. I would argue that it is no such thing. It is merely the unacceptable face of smugness and apathy which afflicts majority peoples everywhere on earth. It is not Australian or new or nice -- or a fit policy for the year 2000 or 2001. It is the old enemy and must be thrown in the garbage, once and for all.

Australia does have a real opportunity today. It has the people and politicians, both indigenous and non-indigenous, to achieve great things in indigenous political and policy reform. It is going in the right direction. The three social justice reports provide a plan for how to embark on the journey -- a plan unlike any found anywhere else, ever, and with unique authority and authenticity. The processes recommended have enough opportunities and safeguards for openness that even the most paranoid politicians can support them. As for the millennium, let the revels begin.

^* Peter Jull is a Brisbane writer and consultant on indigenous policy and politics in Australia and other `first world' countries,and Associate of the North Australia Research Unit, Darwin.

[1] Council for Aboriginal Reconciliation, Going Forward: Social Justice for the First Australians (1995).

[2] Aboriginal and Torres Strait Islander Commission, Native Title Social Justice Advisory Committee, Recognition, Rights and

Reform: A Report to Government on Native Title Social Justice Measures (1995).

[3] Human Rights and Equal Opportunity Commission, Aboriginal and Torres Strait Islander Social Justice Commissioner,

Michael Dodson, Indigenous Social Justice (1995), Vols 1-3.

[4] Mabo v. Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1.

[5] Council for Aboriginal Reconciliation, Aboriginal and Torres Strait Islander Commission, Office of the Aboriginal and Torres

Strait Islander Social Justice Commissioner, Towards Social Justice? An Issues Paper (1994).

6. ibid., p. 7.

[7] ibid., pp. 15-16.

[8] CAR, op. cit., p. 40.

[9] Council for Aboriginal Reconciliation, Walking Together: The First Steps (1994), Chs 13 & 26.

[10] ATSIC, op. cit., p. 21.

[11] P. Jull, "Constitutional reform" in HREOC, op. cit., pp. 1-11.

[12] F. Brennan, S.J., "Securing a Bountiful Place for Aborigines and Torres Strait Islanders in a Modern, Free and Tolerant

Australia", Background Paper (1994).

[13] ATSIC, op. cit., p. 49.

[14] B. Jarvis quoted in P. Jull, "Aboriginal Peoples and Political Change in the North Atlantic Area" (1981) 16(2) Journal of

Canadian Studies 41 at 46-7.

[17] ibid., p. 11.

[18] ibid., p. 5.

[19] ibid., p. 8.

[20] CAR (1995), op. cit., p. 32.

[21] P. Jull, "How Self-Government Must Come: Detailed work ... after the failure of the constitutional conference" (1987) 8(6)

Policy Options 10.

[22] HREOC, op. cit., vol. 1, pp. 32-40.

[23] ibid., p. 46.

[24] B.J. Richardson, D. Craig and B. Boer, "Indigenous Peoples and Environmental Management: A Review of Canadian

Regional Agreements and their Potential Application to Australia -- Part I" (1994) 11(4) Environmental and Planning Law

Journal 320.

[25] B.J. Richardson, D. Craig and B. Boer, Regional agreements for indigenous lands and cultures in Canada (1995).

[26] A. Harris (ed.), A good idea waiting to happen: Regional Agreements in Australia, Proceedings of the Cairns Workshop, Cape York Land Council, Cairns, Qld, July 1994.

[27] HREOC, op. cit., vol. 1, pp. 41-8.

[28] G.H. Brundtland et al., Our Common Future (Australian ed., 1990), pp. 158-60.

[29] ATSIC, op. cit., pp. 35-6.

[30] "Ocean rights win for Aborigines", The Weekend Australian, 3-4 June 1995.

[31] HREOC, op. cit., p. 46.

[32] G. Lui, "A Torres Strait perspective" in Voices from the Land: 1993 Boyer Lectures (1994), pp. 62-75.

[33] HREOC, op. cit., p. 48.

[34] Department of the Environment, Sport and Territories, Living on the coast: the Commonwealth Coastal Policy (1995).

[35] Resource Assessment Commission, "The Role of Indigenous People", Coastal Zone Inquiry: Final Report (1993), pp. 165-89.

[36] CAR (1994), op. cit.

[37] E. Bourke et al., "Improving Relationships: Better Relationships between Indigenous Australians and the Wider

Community", Key Issue Paper No. 2 (1994).

[38] Torres Strait Regional Authority, Submission to the Social Justice Task Force (1994).

[39] HREOC, op. cit., p. 42.

[40] K.E. Eriksen and E. Niemi, "The Finnish menace. Boundary problems and minority policy in the North (1870-1940)", Den

finske fare: Sikkerhetsproblemer og minoritetspolitikk i nord 1860-1940 (1981); H. Salvesen, "Sami Ædnan: Four States --

One Nation? Nordic Minority Policy and the History of the Sami" in S. Tägil (ed.), Ethnicity and Nation Building in the Nordic

World (1995), pp. 106-44; O. Mercredi and M.E. Turpel, "First Nations and Quebec" in In the Rapids: Navigating the Future

of First Nations (1993), pp. 165-85; Human Rights and Equal Opportunity Commission, Aboriginal and Torres Strait

Islander Social Justice Commissioner, Michael Dodson, Second Report: 1994, pp. 212-13.