Human Rights and Equal Opportunity Commission
Annual Report 2003 - 2004
Chapter 6: Aboriginal and Torres Strait Islander Social Justice
Dr William Jonas, AM
Aboriginal and Torres Strait Islander Social Justice Commissioner
Statement from the Commissioner
As we look back on events of the past year, it is clear that we have reached a critical moment in the relationship between Indigenous peoples and the Australian Government. Indigenous people face an unprecedented level of uncertainty as to the nature of this relationship.
As of 1 July 2004, processes are in place to dismantle the national elected representative Indigenous structure and to mainstream all programs and service delivery to Indigenous peoples. This has been accompanied by proposals for changing the nature of funding of some key areas of service delivery to Indigenous peoples from a preferred supplier model to a tendering/contract basis, as well as moving increasingly towards a whole-of-government approach to service delivery across departments and between levels of government.
The consequences of these developments will not be known for some time as we await decisions from the Parliament in relation to the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) as well as the bedding down of new administrative arrangements to implement the proposed directions of the government. The majority of the changes will occur by administrative action and will take place with very little public scrutiny or input from Indigenous peoples.
Developments over the coming year have the potential to challenge the fundamental principles that have underpinned the relationship of Indigenous peoples and governments in recent years. There is much at stake for Indigenous peoples.
A significant focus of the activities of my office over the past year have been directed to engaging with this mood for change in Indigenous affairs by firstly identifying an agenda for reform, and secondly by engaging in discussions about proposed changes in policy approaches to ensure that the human rights implications of these are understood.
A key feature of this work has been examining the inter-related issues of the nature of Indigenous peoples' participation in the decision-making processes of government that affect them, and the adequacy of processes and mechanisms for ensuring government accountability. I have considered these issues through: comments and submissions on the ATSIC Review process and responding to government announcements of new administrative arrangements for ATSIC; through my annual review of developments on social justice and native title; participation in forums on capacity development; and by commenting on proposed new service delivery arrangements for the delivery of legal services to Indigenous peoples. The details of the findings on these issues are explained throughout this chapter of the report.
As the Social Justice Report 2003 clearly demonstrates, the current service delivery model of government is not working. There has been only limited improvement in the livelihood of Indigenous peoples over the past five years, and policies and programs have reinforced Indigenous dependency on government services rather than promoted sustainable solutions. The Native Title Report 2003 also illustrates the lack of coordination and consistency in approach, with native title seated outside the broader framework of Indigenous policy making as if it has no contribution to make to the economic and social development of Indigenous communities. Both reports clearly state that this situation is unacceptable and has to change.
There needs to be reform at the governmental, organisational and community levels simultaneously if there is to be any transformation in the relationship of Indigenous peoples to government(s). The focus needs to be broader than improved efficiency of Indigenous organisations. No amount of change at one level of the system will result in sustainable improvements for Indigenous peoples if it is not accompanied by reform at the other levels.
A key challenge is reforming the role of Indigenous community and representative structures so that there is an appropriate cultural match between Indigenous organisational structures and their constituents - Indigenous peoples at the local level. National Indigenous organisations also need to be strengthened so that they are equipped to exercise a more pivotal role in policy making at all levels of government - particularly through strengthening their ability to monitor the performance of government.
The abolition of ATSIC does not, in my view, meet this need and may be contrary to Australia's human rights obligations. This is particularly so given that there is no intention to replace ATSIC with an elected, representative body, but instead with an appointed government council.
At the same time, there is a clear need for improved processes for government accountability. There have been significant achievements through the processes of the Council of Australian Governments over the past year - although we have not yet reached the stage where material improvements for Indigenous peoples have resulted. Despite these preliminary achievements, processes have not reached a sufficient level of accountability.
In launching the Social Justice Report 2003 I stated that:
Personally, I am sick of hearing from the government about how they spend record amounts of money on Indigenous affairs. I don't want to hear it anymore though. I want to hear about what they are achieving with that money. And I want to know when they envisage it will be that Indigenous people will have equal life chances to other Australians and when the time will come that there will be no need for such record expenditure.
I don't expect that the situation that Indigenous people face will be able to change in the short term, but I do expect governments to have an action plan for achieving equality of opportunity. Action plans should set out what is an acceptable rate of progress towards addressing Indigenous disadvantage within a short, medium and long-term context, and an evaluation of issues relating to the prioritisation, resourcing and re-engineering of programs and services that will need to take place to achieve this. And I also expect that governments will have in place processes for negotiating with Indigenous peoples about setting the key priorities as well as building the capacity of communities to be self-reliant.
These concerns, and the proposals made in the Social Justice Report and Native Title Report to address them, remain key challenges to be addressed by governments as we enter a period of uncertainty for Indigenous peoples.
A further feature of the work of my office in the past year has been on building the capacity of Indigenous peoples on human rights issues. My work on native title issues has focused on building human rights principles into negotiating frameworks for native title - through greater acceptance with mining and resource companies, and through building links to economic and social development of Indigenous communities.
More generally on social justice issues, I entered into a partnership with ATSIC to conduct community-based activities about awareness of human rights. A significant feature of this work has related to promoting discussion in Australia on the Draft Declaration on the Rights of Indigenous Peoples. The Australian Government plays a significant and not always productive role in international negotiations on this proposed instrument. It does not, however, engage with Indigenous communities in Australia about its approach. As consideration of this draft Declaration reaches a critical point over the coming year, my office has encouraged a more wide-ranging dialogue on this issue in Australia. There have been some encouraging signs about the willingness of government for such a dialogue - although it must be noted that this takes place against a backdrop in which the government has not addressed any concerns raised by Indigenous peoples about its position in international forums. Many challenges remain for Indigenous peoples in Australia in this regard.
In raising these challenges, I also note the broad support provided for the role and work of the Social Justice Commissioner through the consideration of legislative amendments to the Commission's structure and through the report of the Senate Inquiry into progress towards reconciliation. These clearly identify and support the ongoing need for this office as an independent monitoring agency on the human rights of Indigenous peoples.
Commissioner Jonas' term as Commissioner expired on 10 July 2004.
Monitoring and Reporting
Social Justice Report 2003
Under section 46C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Commissioner is required annually to submit a report to the Attorney-General on the exercise and enjoyment of human rights by Aboriginal persons and Torres Strait Islanders (the Social Justice Report).
The Social Justice Report 2003 is the fifth by Commissioner Jonas. It was transmitted to the Attorney-General on 30 January 2004, and tabled in Parliament on 10 March 2004.
The report outlines an agenda for change for Indigenous policy. It looks back over the past five years to see whether government policy and program delivery are improving the situation of Indigenous peoples' lives in a sustainable way, or whether in fact they are inhibiting such improvement. It then identifies ways forward to improve Indigenous policy making and delivery of services.
The report provides an overview of key developments in relation to Indigenous well-being and socio-economic status based on recent data. It examines recent progress in relation to accountability of governments; participation of Indigenous peoples; moving beyond welfare dependency; and reconciliation. It also examines government performance in relation to two deeply problematic issues - petrol sniffing and family violence in Indigenous communities.
The report identifies a number of recent positive developments in implementing the commitments to reconciliation made by the Council of Australian Governments (COAG), such as: through the finalisation and release of the first report of national indicators for overcoming Indigenous disadvantage; the conduct of the COAG whole-of-government community trials; as well as recent initiatives in all states and territories regarding family violence issues.
It finds that processes for moving towards such change are still in the preliminary stages and results are yet to be achieved. It argues that the way in which the government deals with issues such as: the reform of the Aboriginal and Torres Strait Islander Commission, support for capacity development in Indigenous communities, and corporate governance reform of Indigenous organisations, will be critical in turning talk into results for Indigenous peoples.
The report notes that these developments are also accompanied by some blunt realities about the rate of progress currently being achieved. It provides a detailed overview of the socio-economic status of Indigenous people in Australia, with an emphasis on change over the past five and 10 years, the inequality gap between Indigenous and non-Indigenous Australians, and comparisons to Indigenous peoples in other countries.
The report expresses deep concern that the situation Indigenous peoples face is likely to worsen substantially over the next decade. A consequence of the growth in the Indigenous population is that it will become increasingly difficult to prevent the current inequality from deteriorating even further.
It also considers progress by governments in addressing pressing, intransigent issues such as petrol sniffing and family violence, and finds that there is insufficient focus at the national level on issues related to petrol sniffing, with no long-term strategies. It expresses particular concern at the bureaucratic inertia in dealing with longstanding petrol sniffing issues on the Anangu Pitjantjatjara Lands (AP) of South Australia. Progress in addressing this issue, including through responding to the findings and recommendations of the South Australian Coroner, is unacceptably slow. Concerns are also expressed at the lack of access to justice for Indigenous women and the limited availability of legal services for them.
The report makes clear that a continuation of the current approach to Indigenous policy will not result in sustainable, long-term improvements for Indigenous peoples. It identifies key issues in an agenda for change, including:
- addressing the lack of sufficient government accountability to Indigenous peoples for government policies through the introduction of rigorous performance monitoring and benchmarking processes;
- strengthening ATSIC at the national, state and regional level, so they provide a representative voice to Indigenous peoples in policy making processes;
- increasing the focus on whole-of-government approaches, with a particular emphasis on progress in the COAG whole-of-government community trials;
- providing a realistic assessment of the ongoing shortfall of funding for service delivery and infrastructure provision to Indigenous communities, and a targeted plan 'to address inequality within available resources and within people's lifetimes'; and
- integrating capacity development approaches for Indigenous communities into all government processes, including through COAG making a long-term commitment to appropriate funding and processes.
Accordingly, the report contains 12 recommendations directed to COAG and the federal Government relating to:
- data collection issues to support COAG's national report on overcoming Indigenous disadvantage (recommendation 1);
- the status of COAG's ministerial action plans for addressing Indigenous disadvantage (recommendations 2-5);
- the progress of the COAG whole-of-government community trials (recommendations 6-9); and
- Capacity building and governance reform (recommendations 10-12).
The report, an executive summary and media pack can be accessed from the Commission's website at: www.humanrights.gov.au/social_justice/sjreport03/index.html.
Native Title Report 2003
Under section 209 of the Native Title Act 1993 (Cth), the Commissioner is required annually to submit a report to the Attorney-General on the operation of the Native Title Act and the effect of the Act on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders.
The Native Title Report 2003 is the fifth by Commissioner Jonas, and was transmitted to the Attorney-General on 30 January 2004 and tabled in Parliament on 10 March 2004.
The report evaluates native title as a framework for economic and social development for traditional owner groups. The report recognises that while the legal framework for native title restricts its capacity to improve economic and social conditions for Indigenous people, native title agreement-making provides an invaluable opportunity for states and territories to take a broader policy approach. The approach advocated in the report is developed in four chapters which deal with the following topics:
- native title and international standards on development and sustainability;
- native title policies and practices of governments throughout Australia;
- evaluating native title policies as a framework for economic and social development; and
- comparative study of legal and policy frameworks in Canada and the United States of America.
Chapter one of the report provides a framework for sustainable economic and social development for Indigenous people based on the right to development defined in the Declaration on the Right to Development and the international discourse on sustainable development.
Applying these approaches to native title agreement-making, the chapter asks: 'What would a government and a native title claimant group discuss if the agreed aim of the native title process was the realisation of the group's right to sustainable development?' It also asks: 'How would native title negotiations and agreement-making be structured so as to achieve this agreed goal?' A central element of the response to these questions is directed to ways in which the capacity of the claimant group can be developed to take control of the development process. The purpose of this approach is to enable traditional owner groups who aspire to achieve sustainable development to determine the process for themselves. This requires that the group establish its own objectives and strategies for achieving them. The government's role in this process is to facilitate the group to achieve its development goals through a partnership approach.
Chapters two and three of the report examine native title policies at the state and federal levels, and the capacity of these policies to contribute to Indigenous peoples' sustainable development. A common theme of state native title policies as they currently exist is a willingness to negotiate rather than litigate. A preference for negotiation over litigation provides an invaluable opportunity for governments and traditional owner groups to ensure that native title determinations respond as far as possible to the development needs of the native title claimant group, rather than just the demands of the legal system.
However, unclear in most native title policies are the objectives of the negotiation process. This gap in states' native title policies means that native title negotiations have no consistent goals, but change depending on the circumstances of the case. It also means that there has been little policy development around defining the elements of a native title agreement that would best contribute to the sustainable development of the traditional owner group.
Little or no use is made of policy frameworks that have already been developed outside of the native title area to address economic development in Indigenous communities. The failure to co-ordinate the goals of native title negotiations with the states' strategies to address the economic and social development of Indigenous people generally not only isolates the native title process from broader policy objectives, it limits the capacity of those broader policies to achieve their objective of addressing the economic and social conditions of Indigenous peoples' lives. By disregarding native title, the policy fails to understand the importance of filtering development through the cultural values and structures of the group, which is the subject of this policy. In addition, the recognition of the distinct identity of Indigenous people and the cultural, economic and political values that characterise this identity are essential to the economic and social development agenda of Indigenous people.
Despite native title providing an ideal opportunity to foster sustainable development for Indigenous people, native title negotiations are constrained by the legal tests on which the recognition of native title depends. Within the legal framework, the scope and content of native title agreements are directed to addressing the legal issues that define the claim, rather than contributing to the development goals of the group.
Chapter four of the report raises the question of how native title, land rights, and agreement-making with Indigenous peoples are being handled at a juridical and policy level in other comparable common law countries. The basis for drawing a comparison between Australian, American and Canadian approaches is their respective capacity to address the economic and social development of Indigenous people.
Native title in Australia provides an important frame of reference by which economic and social development can transform the conditions of Indigenous peoples' lives. Yet its capacity to contribute to this process has been hampered, first by the legal system that operates to restrict rather than maximise these outcomes, and second by the failure of government to build a relationship with traditional owner groups in which economic and social development is the shared goal.
The full report, an executive summary and a media pack can be accessed from the Commission's website at: www.humanrights.gov.au/social_justice/ntreport_03/index.html.
Promoting awareness and discussion of human rights issues
The Commissioner is required under section 46C(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to promote discussion and awareness of human rights in relation to Aboriginal persons and Torres Strait Islanders.
Proposed tendering of Aboriginal and Torres Strait Islander Legal Services
In March 2004, the federal Government proposed reforms to 'mainstream' the delivery of legal services to Indigenous people. The reforms were set out in the Exposure Draft Purchasing Arrangements, Legal Services Contract 2005 - 2007 for Legal Aid Services for Indigenous Australians (Exposure Draft), including the revised Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (Policy Directions). The reforms were developed by the Aboriginal and Torres Strait Islander Services (ATSIS) and were intended to enable generalist legal services to tender for funding previously provided to Aboriginal and Torres Strait Islander Legal Services.
The Commissioner made a submission to ATSIS on 7 May 2004 expressing concern at a number of proposals contained within the Exposure Draft and Policy Directions. The concerns related broadly to two issues:
First, that certain provisions of the Exposure Draft and Policy Directions may breach the prohibition of racial discrimination in the Racial Discrimination Act. The Policy Directions provide that, inter alia, people who are charged with minor offences, such as traffic offences or public drunkenness, may be refused legal assistance by providers funded under the new tendering arrangements. In addition, under the Policy Directions people who have previously been charged (though not necessarily convicted) with violent offences may also be refused legal assistance by the funded service provider.
If the criteria discussed above are imposed by the Commonwealth on both Indigenous and non-Indigenous people this may still give rise to a breach of the indirect discrimination provisions contained in section 9(1A) of the Racial Discrimination Act.
Many Indigenous people may not be able to practically and effectively comply with such a requirement, and the imposition of this requirement may interfere with the rights of Indigenous people to a fair trial and access to legal advice and assistance.
The second concern expressed by the Commissioner was that the tendering process does not address longstanding difficulties in the provision of legal services to Indigenous peoples, and that aspects of the tendering process may in fact further disadvantage Indigenous peoples in the provision of legal services. In particular, the Commissioner expressed concern that the tender documents do not sufficiently prioritise addressing the crisis of contact of Indigenous peoples with criminal justice systems. Legal services for Indigenous peoples are under-funded, and the tender documents place restrictions on service delivery that mitigate against effective and proactive service delivery. The lack of focus and funding for prevention and education within the tender process is of particular concern.
The Commissioner's comments on the tender process are available online at: www.humanrights.gov.au/social_justice/submissions.html.
Joint Public Accounts Committee Inquiry into Indigenous Law and Justice
The Commissioner made a submission to the Joint Public Accounts Committee of the federal Parliament to their Inquiry into Indigenous law and Justice in May 2004. The Commission appeared at a public hearing of the Committee on 8 June 2004.
The submission addressed concerns about the proposed tendering out of Aboriginal and Torres Strait Islander Legal Services, as well as the provision of legal services to Indigenous women. It also provided information about the National Indigenous Legal Advocacy Courses.
For information on the National Indigenous Legal Advocacy Courses see the Commission's website at: www.humanrights.gov.au/social_justice/nilac/index.html
Aboriginal and Torres Strait Islander Commission
The Commissioner has made numerous comments and submissions about the future of the Aboriginal and Torres Strait Islander Commission (ATSIC) during the reporting year.
In August 2003, the Commissioner made a submission to the ATSIC Review Team in response to their discussion paper. The submission emphasised the need to strengthen ATSIC at national, state and regional levels, and recommended mechanisms for improving the performance monitoring and evaluation role of ATSIC. The submission is available online at: www.humanrights.gov.au/social_justice/submissions.html#atsic
The Social Justice Report 2003 then contained analysis of the ATSIC Review's Final Report and outlined proposals for ATSIC reform based on this. The Commissioner made further comments following the announcement by the federal Government of the abolition of ATSIC. These comments are available online at: www.humanrights.gov.au/media_releases/2004/28_04.htm
The recognition of Aboriginal Customary Law
For the second year in a row, the Commissioner co-hosted a workshop with the International Law Association (Australian Branch). The workshop, which took place on 20 November 2003, discussed international law issues relating to the recognition of Aboriginal Customary Law. The Commissioner and HREOC President spoke, along with Megan Davis of the University of NSW and Margaret Brewster of the International Law Association. The workshop was attended by approximately 85 people.
The papers of the workshop are available on the Commission's website at: www.humanrights.gov.au/speeches/social_justice/recognition_customary_law.html.
Inquiry into Capacity Building in Indigenous Communities
The Commissioner's office attended a roundtable meeting on 13 February 2004, organised by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs for their Inquiry into Capacity Building and Indigenous Communities. The Commissioner had earlier made a submission to the Inquiry and appeared before the Committee at a public hearing earlier in 2003. The Commissioner's submission is available online at: www.aph.gov.au/house/committee/atsia/indigenouscommunities/subslist.htm
Inquiry into the Capacity of Native Title Representative Bodies
On 29 June 2004, the Commissioner made a submission to the Parliamentary Joint Commission on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Capacity of Native Title Representative Bodies.
The Commissioner submitted that the degree to which Indigenous people participate in and derive benefits from, the native title process is, to a significant extent, determined by the capacity of native title representative bodies (NTRBs or representative bodies) to represent their clients' interests in the native title process. The allocation of funds by the federal Government to NTRBs has a direct impact on whether NTRBs can effectively carry out this task. The inadequate funding of representative bodies has had the cumulative effect of undermining NTRBs capacity to protect Indigenous interests in the native title process. Accordingly, it has diminished the extent to which Indigenous people can enjoy their land and culture, and the social, economic and political structures built upon them, diminishing Indigenous people's enjoyment of their human rights.
The Commissioner's submission is available online at: www.aph.gov.au/senate/committee/ntlf_ctte/rep_bodies/submissions/sub15.pdf.
Technical workshop on the Draft Declaration on the Rights of Indigenous Peoples
The Commission and Aboriginal and Torres Strait Islander Services (ATSIS) co-hosted a technical workshop on the Draft Declaration on the Rights of Indigenous Peoples (DDRIP) from 29-31 March 2004.
The purpose of the technical workshop was to consider the international law implications of the proposals currently before the working group, as well as possible ways forward in negotiations on the DDRIP. The workshop was convened over three days to consider the following issues:
- recent developments and proposed changes to text of the Draft Declaration;
- consideration of the debate in the 2003 session on the Norwegian proposal for articles of the Draft Declaration relating to self-determination; and
- the Australian and Canadian joint text proposed in the 2003 meeting, and other alternative language, relating to the land, territories and resource provisions of the DDRIP.
Participants in the workshop expressed concern at the lack of progress in the negotiations on the DDRIP, and at the realisation that the DDRIP would not be finalised within the timeframe of the International Decade of the World's Indigenous People (which ends in December 2004).
The workshop report noted a range of concerns relating to the position of the Australian Government in the negotiations of the Draft Declaration, including:
- that a major impediment to the adoption by the UN of a Declaration on the Rights of Indigenous Peoples is a tendency of a small group of States, including Australia, to propose text which restricts the Declaration to conform with existing domestic laws and policies;
- that the Australian Government is seeking to impose its domestic policy on other States in denying the application to Indigenous peoples of the right of all peoples to self-determination, in a manner which is inconsistent with existing international law;
- that proposals submitted at the 2003 session of the Draft Declaration working group by Australia and Canada on the lands, territories and natural resources provisions of the Declaration seek to elevate to the status of international standards inadequate domestic laws and policies. Such laws and policies have been found by UN human rights treaty bodies to be contrary to Australia's existing international human rights obligations;
- in Australia, consultation by the federal Government with Indigenous peoples and organisations in relation to the Declaration has been manifestly inadequate; and
- there has been little, if any, attempt by the Australian Government to listen or respond to the reasoned arguments put forward by Indigenous Australians in defence of critical provisions of the Declaration. There has been no apparent shift in any position articulated by Australia in the course of the sessions of the Inter-Sessional Working Group.
The workshop report has been disseminated among governments, Indigenous organisations (in Australia and internationally) and has been submitted to the United Nations as a background paper for the forthcoming session of the Working Group on the Draft Declaration in September 2004.
The Commissioner has received responses from several state and territory governments to the report of the workshop which have supported the need for consultations with Indigenous peoples about the Australian Government's proposals for the Draft Declaration.
The workshop report is available online at: www.humanrights.gov.au/social_justice/technical/workshop.html.
Visit to Australia of Professor Erica-Irene Daes
Professor Dr Erica-Irene Daes visited Australia from 21 May - 6 June 2004 as a guest of the Commissioner and ATSIS. Professor Daes was the Chair of the Working Group on Indigenous Populations for 20 years from 1982, the principal drafter of the United Nations Draft Declaration on the Rights of Indigenous Peoples, and a Special Rapporteur and expert member of the Sub-Commission on the Protection and Promotion of Human Rights.
During her visit, Professor Daes met with Indigenous organisations, government departments, and other organisations in Sydney, Canberra, Melbourne, Adelaide and Cairns. She delivered three public lectures in Australia: Sydney, on intellectual property and globalisation issues; Melbourne (co-hosted with the Castan Centre for Human Rights at Monash University), on Indigenous participation in the United Nations; and Adelaide (at the National Native Title Conference), on the issue of permanent sovereignty over natural resources.
Professor Daes also conducted a seminar with ATSIS in Canberra and met with post-graduate students studying indigenous international legal issues at Monash University.
Information about Professor Daes and her visit, including speeches, are available on the Commission's website.
International activities
Section 46C(3) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) states that in the performance of the Commissioner's functions, the Social Justice Commissioner may consult with international organisations and agencies, particularly international Indigenous organisations.
In accordance with these provisions, the Commissioner attended the Commission on Human Rights Working Group on the Draft Declaration on the Rights of Indigenous Peoples in Geneva from 15-26 September 2003. In Geneva, the Commissioner also attended the Committee on the Rights of the Child's General Day of Discussion on Indigenous Children and made three submissions to the Committee, and also made interventions in working groups convened by the Committee. The submissions are available at: www.humanrights.gov.au/social_justice/internat_develop.html.
The Committee has recently issued its recommendations from the day, which will inform the consideration of periodic reports by State Parties under the Convention as they relate to Indigenous children.
The Commissioner also attended a workshop in Madrid, Spain, from 12-14 November 2003, on Indigenous peoples and the administration of justice. The workshop was convened by the Office of the United Nations High Commissioner for Human Rights to support the work of the UN Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous People. 25 experts were convened in Madrid to discuss issues facing Indigenous people in the administration of justice, including best practice solutions and modes of recognition of Indigenous customary law systems.
The Commissioner provided three submissions in advance of the workshop and made a formal presentation on Indigenous women in corrections. The submissions are available at: www.humanrights.gov.au/social_justice/internat_develop.html.
Research and educational programs
Under section 46C(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Commissioner is required to undertake research and educational programs for the purposes of promoting respect for, and enjoyment and exercise of, human rights by Aboriginal persons and Torres Strait Islanders.
Principles to promote economic and social development through native title
On 2 June 2004, the Commissioner released a discussion paper entitled 'Promoting Economic and Social Development through Native Title'. The paper considers how the native title system might operate more effectively to assist traditional owner groups realise their goals for economic and social development. It relies on human rights principles to build a framework for economic and social development. Applying this framework to native title negotiations and agreement-making, the paper proposes five principles to redirect the focus of the parties towards the economic and social development goals of the traditional owner group. It is proposed that native title agreements aimed at economic and social development should:
- respond to the group's goals for economic and social development;
- provide for the development of the group's capacity to set, implement and achieve their development goals;
- utilize the existing assets and capacities of the group to the fullest extent possible;
- build relationships between stakeholders; and
- integrate activities at various levels to achieve the development goals of the group.
The Commissioner is seeking feedback on these principles and is consulting widely in order to further develop the draft principles.
Mining Certification Evaluation Project
The Commissioner is a member of a multi-stakeholder working group convened by the World Wildlife Fund Australia and CSIRO to research the feasibility of developing criteria for the independent auditing of mining sites based on sustainable development principles.
The working group, also comprising representatives of mining companies, consumer organisations, the Mineral Council, environmental and shareholder interests, finalized a draft of the evaluation criteria in December 2003. The criteria address the three pillars of sustainable development - economic responsibility, environmental responsibility and social responsibility.
The working group has retained an auditor to conduct a series of pilot projects on particular mine sites to test whether the criteria can be applied in the field. The draft criteria can be found at: www.minerals.csiro.au/sd/SD_MCEP.htm
National Indigenous Legal Advocacy Courses
On 30 June 2003, the Queensland Training Accreditation Council accredited the National Indigenous Legal Advocacy Courses until 29 June 2008. The courses are now available to be offered by registered training organisations in the vocational education sector (primarily TAFE and Aboriginal independent educators).
Registered training organisations need to obtain a licence from the Commission to offer the courses. A licensing process has been established to ensure that trainers meet the standards required in the course syllabus documents, and will require trainers to provide information to the Commission in order to undertake required evaluation and monitoring of the courses' operation.
Three training organisations have been licensed to deliver the courses to date, namely: the Tropical North Queensland Institute of TAFE; Tranby Aboriginal College; and the Institute for Aboriginal Development.
Information about the courses, including course overviews, licensing processes for intending training providers and a list of registered trainers is available online at: www.humanrights.gov.au/social_justice/nilac/.
Memorandum of Understanding with Aboriginal and Torres Strait Islander Services
The Commission entered into a Memorandum of Understanding with Aboriginal and Torres Strait Islander Services (ATSIS) for two collaborative projects to take place between March and June 2004, namely:
- a community workshop to be conducted in each state and territory on international developments in Indigenous rights; and
- a three-day technical workshop to evaluate progress on the Draft Declaration on the Rights of Indigenous Peoples (as discussed above).
The community workshops were intended to provide Indigenous communities, interested NGOs and academics, an overview of current developments in the international arena relating to Indigenous rights. The core of these workshops would be the role of and recent developments relating to:
- The United Nations Permanent Forum on Indigenous Issues;
- The UN Working Group on Indigenous Populations;
- The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people;
- The Commission on Human Rights Ad Hoc Open-Ended Working Group on the Draft Declaration on the Rights of Indigenous Peoples; and
- The International Decade of the World's Indigenous Peoples.
Workshops were held in Hobart (16 March), Melbourne (19 March), Brisbane (22 March), Adelaide (24 March), Darwin (21 April), Perth (19 April), Canberra (27 April), Sydney (29 April) and Thursday Island (16 June).
Speeches
Attached is a selection of speeches, seminars and presentations made by, or on behalf of, the Commissioner during 2003-04. Selected papers are available on the Commission's website at: www.humanrights.gov.au/speeches/social_justice/.
Beyond Apologies: What Now for the Stolen Generations speech at Our Future Generations, National Indigenous Child Welfare and Development Seminar, Melbourne, 24 July 2003.
Launch of the 3rd edition of the casebook Indigenous Legal Issues - Commentary and Materials, by Heather McRae, Garth Nettheim, Laura Beacroft and Luke McNamara, Avillion Hotel, Sydney, 21 August 2003.
Progress in the 12 years since the Royal Commission into Aboriginal Deaths in Custody speech at the National Indigenous People in Custody Conference, Adelaide Riviera Motel, Adelaide, 17 October 2003.
Recognising Aboriginal and Torres Strait Islander Customary Law: International and Domestic Implications speech at the Human Rights and Equal Opportunity Commission and the International Law Association (Australian Branch) seminar, Sydney, 20 November 2003.
Launch of the 2003 Social Justice and Native Title Reports, Museum of Sydney, 12 March 2004.
Future Challenges for Reconciliation, speech at the Mosman Reconciliation Group, 15 March 2004.
An agenda for change, speech delivered by Darren Dick on behalf of Dr Jonas, Tandanya, Adelaide, 25 March 2004.
Commissioner Jonas and the Indigenous Law Centre co-hosted a presentation by Professor John Borrows from Canada on Practical Recolonisation: Aboriginal/Native Title in Australia and Canada, Sydney, 1 May 2004.
19 November 2004
