Press statement by Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner - Social Justice Report 2002 and Native Title Report 2002 '
20 March 2003, HREOC Offices, Sydney
Acknowledgement of the traditional owners.
Thank you for attending this press conference to discuss the release of the Social Justice Report and Native Title Report for 2002. As you would be aware, these reports are the annual report card on the government's performance on Indigenous issues and native title.
This year's Social Justice Report provides:
- a progress report on reconciliation;
- an analysis of the adequacy of the Government's approach to benchmarking Indigenous disadvantage;
- an evaluation of how the government addresses Indigenous issues when compared to the understanding of self-determination in international law;
- an overview of the situation of Indigenous women in criminal justice processes; and
- a review of international developments in Indigenous rights.
I note that last year's report had called for a Senate inquiry to be established into progress towards reconciliation. That inquiry was established and is due to report by June this year. Much of the material in this year's report is relevant for that inquiry.
The Native Title Report provides an analysis of a series of significant High Court and Federal Court decisions which have clarified the law of native title and identifies areas for law reform.
I am concerned that the federal Government has adopted an antagonistic and adversarial approach to Indigenous policy. Substantial bi-partisan support for reconciliation and directions in Indigenous policy has been undermined by the limited focus of the Government. Those areas on which there is common ground are relatively few - and basically relate to agreement on the need to overcome Indigenous disadvantage - and there is even less agreement on what are the best ways to address such issues.
I am also concerned that while reconciliation was a priority for the second term of the Government, it does not even rate a mention in recent announcements of the Government's strategic long term vision for Australian society. Indigenous issues are no longer treated as a national priority.
The Report concludes that there are two main features which run through the government's practical reconciliation approach:
- It marginalises Indigenous people from having any role in setting the priorities or agenda for Indigenous affairs, even under the rubric of 'partnership and agreement-making'; and
- The efforts of the Government have been directed towards the goal of cementing this reductive approach into place, including at the inter-governmental level. The consequence of this is that the limited processes for accountability are not directed to those issues which the Government does not agree with.
I look in detail at the main issue that the Government has committed to - addressing Indigenous disadvantage - from the perspective of their commitments, targeting and benchmarking. The absence of an absolute commitment to overcoming such disadvantage - with short, medium and long term targets - masks the distinct lack of progress in addressing Indigenous disadvantage within the framework of practical reconciliation.
While I commend a number of initiatives that have occurred during the past year, the report identifies as the one true highlight of the year the way that Indigenous peoples have demonstrated that they are not going to sit back and wait for governments' to solve the various problems that they face.
Indigenous communities across the country are demonstrating that they are not passive victims but distinct peoples fighting hard for the survival and recognition of their cultural distinctiveness. Indigenous communities across the country know what they want and are working towards building their capacity and striking agreements with governments to implement it.
An issue that I discuss in some detail in the Social Justice Report is the distressing status of Indigenous women in the criminal justice system. What is clear is that there is a crisis in the level and type of contact of Indigenous women with correctional systems in Australia. There is insufficient attention devoted to their circumstances when in custody and insufficient attention to the environmental factors which contribute to their being in custody in the first place. Indigenous women live in 'a landscape of risk' and suffer at the crossroads of race and gender.
Consider the following factors:
- Indigenous women are currently incarcerated at a rate higher than any other group in Australia. There has been a 250% increase in their rate of incarceration in the past decade.
- While Indigenous men face unacceptably high rates of incarceration, the rate for Indigenous women is significantly higher and is rising at a faster rate. For the June 2002 quarter, Indigenous women were over-represented at 19.6 times the non-Indigenous rate compared to Indigenous men at 15.2 times.
- The over-representation of Indigenous women occurs in the context of intolerably high levels of family violence, over-policing for selected offences, ill-health, unemployment and poverty.
- Studies of Indigenous women in prison reveal experiences of life in a society fraught with danger from violence.
- The consequences to the community of the removal of Indigenous women are significant and potentially expose children to risk of neglect, abuse, hunger and homelessness.
- Indigenous women also serve comparatively shorter sentences, suggesting a general failure to employ the principle of imprisonment as a last resort; and
- Once imprisoned, recidivism statistics also indicate that Indigenous women are at greater risk of returning to gaol.
There is an urgent need for the situation and needs of Indigenous women to be considered by governments across Australia (and there are statistics relating to each state contained in the press summary of the report). In particular, there is a need for pre and post release programs addressing Indigenous women's needs as a specifically targeted group and not simply as Indigenous people or as women. Some of the issues that require detailed attention include:
- Transitional housing arrangements upon release;
- Community based, Indigenous specific programs to help women deal with the effects of violence and to develop alternative strategies for coping with future violence;
- Support for women to maintain contact with their children while they are incarcerated or regular information about the well being of their children;
- Programs which are sensitive to the kinship obligations of Indigenous women and supportive of these roles;
- Support relating to financial issues, employment, education and training - it has been suggested for example that there could be a CDEP style scheme for Indigenous women in custody; and
- Improved access to health services, including drug abuse rehabilitation.
Again, the report highlights a number of initiatives currently underway and predominately being run and developed by Indigenous women for Indigenous women dealing with these issues. These include the Sisters Inside program in Queensland and the Yulawirri Nurai program in NSW - but they are of course not funded and supported as they should be.
The Native Title Report 2002 analyses the law of native title as crystallised in the decisions of the High Court in Croker Island, Miriuwung Gajerrong, Wilson v Anderson and Yorta Yorta. What has emerged from the High Court is a concept of recognition as not simply the law providing a vehicle for Indigenous people to enjoy their culture and property rights. Rather the law becomes a barrier to their enjoyment and protection.
In the Yorta Yorta decision the High Court interpreted the Native Title Act as requiring proof that the society under whose laws and customs native title rights arise has continued to exist from colonial rule until now. As such a claimant group must prove a continual observance and acknowledgement of traditional laws and customs since sovereignty. In addition Indigenous claimants must satisfy a court that the contemporary expressions of their culture and their religion, do not emanate from Indigenous laws or customs that were created after sovereignty but have their origins in pre-sovereign traditions and customs.
The difficulty of establishing native title contrasts markedly with the ease with which it can be extinguished.
In the Miriuwung Gajerrong case the High Court confirmed native title could be extinguished either on a piecemeal basis or completely whenever an inconsistency between non-Indigenous rights and native title rights occurred. Based on this test the creation of a nature reserve in Western Australia, an interest generally accepted as complementary to Indigenous interests, was found to extinguish native title completely. In Wilson and Anderson the driving logic of inconsistency resulted in extinguishment of native title over 42% of NSW, as a result of the creation of perpetual grazing leases under the Western Lands Act. Glaringly absent from this logic of either/or is the possibility of co-existence, and of a reconciliation of interests where rights are negotiated and mediated to enable a diversity of interests. The test of extinguishment ensures Indigenous interests are permanently destroyed.
These legal tests for the recognition and extinguishment of native title together ensure the economic, social and cultural outcomes that native title could have delivered to Indigenous People are held back by the present regime. While it is pleasing to see the Minister for Workplace Relations and Employment, Tony Abbott, include native title as a tool in the establishment of an economic base for Indigenous people, a genuine approach to this issue would include reforming the native title system to make native title available to a greater range of Indigenous people and to strengthen it against extinguishment. These fundamental reforms do not appear to be on the government's agenda.
The Court's finding that the Native Title Act rather than the common law directs the native title processes of extinguishment and recognition, confirms the primary role of the Commonwealth in strengthening native title as a tool for economic and social transformation.
The Native Title Report maps out various levels on which the reform of native title could proceed. At the statutory level the Native Title Act should be amended to apply the non extinguishment principle to a wide range of past activities. In this way non-Indigenous interests can still be fully enjoyed and the traditional relationship to land maintained.
You can also access:
- Media release announcing the tabling of the Social Justice and Native Title reports for 2002.
- Media
release on the Incarceration rates of Indigenous Women.
- The Social Justice Report 2002 is available at: http://www.humanrights.gov.au/social_justice/sjreport_02
- Click here to access the Executive Summary of the Social Justice Report 2002
- Click
here to access the Media Summary of the Social Justice Report 2002
- The Native Title Report 2002 is available at: http://www.humanrights.gov.au/social_justice/ntreport_02
