Nettheim, Garth --- "Human Rights Special - Looking Back: Visions or Rear Visions" [2004] IndigLawB 76; (2004) 6(7) Indigenous Law Bulletin 21

Looking Back: Visions or Rear Visions

by Garth Nettheim

The closing of the International Decade of the World’s Indigenous People (the

‘International Decade’) represents a suitable time to take stock of developments over the past 10 years in Australia.

The International Decade was still relatively new when, in March 1996, the federal election resulted in a defeat for the Australian Labor Party (‘ALP’) government led by Paul Keating, and the first electoral victory for the Coalition (Liberal and National Parties) led by John Howard. The Coalition has been re-elected three times since then, most recently on 9 October 2004.

International Developments

At the international level, the ALP governments that had held office since 1983 had been generally supportive of the rights of Indigenous peoples. They participated actively and constructively in such fora as the United Nations Working Group on Indigenous Populations (the ‘Working Group’), particularly in the development of the Draft Declaration on the Rights of Indigenous Peoples (the ‘Draft Declaration’). At the Working Group and its parent body, the Subcommission on Prevention of Discrimination and Protection of Minorities, Australian Government representatives were, mostly, supportive of the language in Article 3 which recognises the right of Indigenous peoples to ‘self-determination’. Under Coalition governments, however, such language has been resisted.

At the broader level of human rights treaties, Australian governments prior to the Coalition had ratified the principal instruments. They had accepted optional provisions permitting individuals to send communications to the relevant treaty committees alleging non-compliance by Australia with its treaty obligations. And, in presenting their own periodic reports to the treaty committees, Australian governments had led the way in frankly acknowledging failures, and in supporting the participation of such independent office-holders as then-Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson. And critical ‘alternative reports’ from the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) were tolerated.

In subsequent years, particularly in the face of criticisms from several of the treaty committees, particularly the Committee on the Elimination of Racial Discrimination (‘CERD’), the Coalition governments have stated their categorical disagreement with such conclusions. They have accused the committees of giving excessive weight to representations from non-government organisations, have called for the review of the treaty committee systems, and have pointedly declined to accept additional oversight processes.

Reconciliation

What of the International Decade itself? Within Australia, very little was achieved. It may be fair to say that the Australian Government’s own ‘reconciliation’ process was designed to do all that the decade might have required, and more. That process was established under the Council for Aboriginal Reconciliation Act 1991 (Cth) (the ‘Act’) which was enacted in June 1991 with cross-party support. A 25-member Council for Aboriginal Reconciliation (‘the Council’) was appointed to identify issues and prepare recommendations necessary to achieve reconciliation. A decade was allotted, culminating at the end of 2000.

In May 2000, the Council presented the Australian Declaration Towards Reconciliation and the accompanying Roadmap for Reconciliation which comprised four National Strategies:

• to sustain the reconciliation process;
• to promote recognition of Aboriginal and Torres Strait Islander rights;
• to overcome disadvantage; and
• to encourage economic independence.

In December 2000, the Council presented its final report, Reconciliation: Australia’s Challenge. The Government response – which took until September 2002 – rejected some aspects of the reports but did initially fund a successor body, Reconciliation Australia, to carry on the work. It also recommended means of ‘Practical Reconciliation’, geared primarily to the Roadmap objectives of overcoming disadvantage and advancing economic independence.[1]

While some interesting initiatives have been undertaken, the statistical indicators for Indigenous disadvantage in issues of health, housing, education and employment remain at seriously low levels. And it may take a change of leadership at the national level to facilitate further progress on other issues, such as recognition of Indigenous rights, enhanced political participation and the like.

Overall, the work of the Council over its decade represented a serious attempt to explore the outstanding issues and to advance community understanding. There would have been little point in setting up some additional process for the specific purpose of marking the overlapping International Decade. While the result may be seen as disappointing, this is likely to be the assessment also, at the international level, in terms of the International Decade. The United Nations (‘UN’) may well resolve to add an additional International Decade, in an attempt to secure further progress.

Native Title

It was early in the life of the Council and not long before the start of the International Decade, that the High Court of Australia, on 3 June 1992, recognised the possible survival of ‘native title’, based on the pre-existing and continuing connection of Indigenous Australians to their lands and waters. This decision, Mabo v Queensland (Mabo No 2)[2] (‘Mabo’), brought the common law of Australia broadly into line with that of other nations settled by the British, such as the USA, Canada and New Zealand. It also addressed a primary and long-standing grievance of Indigenous Australians which had not adequately been resolved by forms of statutory land rights developed since the 1960s in various Australian jurisdictions.

But the decision produced a serious political backlash, and a year of negotiations was necessary before the Keating ALP government, with minor party support in the Senate, managed to secure the enactment of the Native Title Act 1993 (Cth) (‘NTA’). The Act was designed:

• to recognise and protect native title;
• to validate some doubtful ‘past acts’ conferring non-Indigenous titles;
• to provide a non-discriminatory ‘future act’ regime for dealings with lands and waters; and
• to establish processes for determinations of native title and compensation.

In response to Mabo, the Keating Government also enacted legislation allowing the Indigenous Land Corporation to purchase available land, and also set out to identify non-land issues of importance. ATSIC and the Council were commissioned to consult widely on issues of relevance and proposals were formulated in 1995 but the Keating Government was unable to proceed prior to the change of government in 1996. Like the Reconciliation documents, the ‘social justice package’ proposals identify items of ‘unfinished business’ from the standpoint of Indigenous Australians.

When the Coalition came to government in March 1996, an early priority was to amend the NTA on the basis, as Prime Minister Howard put it, that it had swung the pendulum too far in favour of native title holders. A series of amendments was enacted in 1998. These, and recent court decisions, have led many Indigenous Australians to the view that the early promise from the recognition of native title has been substantially diminished. But it is fair to add that a number of people have won recognition of their connection to ‘country’.

The NTA amendments also came to the attention of CERD. In a series of exchanges between it and the Australian Government between 1998-2000, CERD concluded that the amendments to the NTA violated Australia’s obligations under the Convention.[3]

Other Issues

The Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) established the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) as a peak national Indigenous body based on elections at regional and zone levels. ATSIC was empowered to develop policy and advise governments. It also had direct administrative responsibility for programs transferred from the former Department of Aboriginal Affairs, and funded various Indigenous organisations.

In 2003, the Howard Government commissioned a review of the operation of ATSIC which recommended its continued operation subject to elimination of the zone-based elections for the national Board of Commissioners.[4] But during 2004, the Howard Government proceeded to abolish ATSIC altogether; to ‘mainstream’ its various programs and services, and to establish an appointed advisory body in its place.

The termination of ATSIC will leave a gap for Indigenous representation and policy input at the national level. It remains for Indigenous people and their organisations to decide how they would propose to fill that gap.

While there has been progress for some, the past decade has been marked by a number of setbacks for Aboriginal people and Torres Strait Islanders, especially at the political level. This experience is scarcely novel. Over the years we have seen periods of steady (or even rapid) forward progress, interspersed by periods of stagnation and even reversal. Indigenous Australians have been working towards recognition of their human rights for over two centuries. Now is clearly a period for not expecting much, but for preparing the ground for the next time that it may be feasible to achieve further progress.

Garth Nettheim was Dean and Head of School of the Law Faculty and founding Director of the Indigenous Law Centre, UNSW. He is currently an Honorary Visiting Fellow teaching Indigenous legal issues and human rights law at the Law Faculty, UNSW.

[1] H McRae, G Nettheim, L Beacroft and L McNamara, Indigenous Legal Issues:Commentary and Materials (3rd ed, 2003), see Chapter 12, ‘The Senate, Legal and Constitutional References Committee, ‘Reconciliation: Off Track’.

[2] [1992] HCA 23; (1992) 175 CLR 1.

[3] McRae, Nettheim, Beacroft and McNamara, above n1, 263 - 277.

[4] Report of the Review of the Aboriginal and Torres Strait Islander Commission, In the Hands of the Regions – A New ATSIC, (2003).