Setting the scene: the Australian
framework for reparations
Mr Brian
Butler, Commissioner, Aboriginal and Torres Strait Islander Commission
Good morning and welcome.
Firstly, let me acknowledge the people of the Tharawal nation on whose land we are meeting today.
Let me also take the time to pay tribute to:
- All the elders
who have committed to be part of the conference process;
- All members
of the stolen generations for the strength and courage they continue
to display by once again having their unfortunate circumstances placed
under the public microscope; and
- All of you for engaging with them in their quest for just reparation for the injustices perpetrated against them throughout the course of history associated with this country.
Before proceeding with my speech can I just express my appreciation to:
- The Aboriginal
and Torres Strait Islander Social Justice Commissioner Mr Bill Jonas
of the Human Rights and Equal Opportunity Commission (HREOC);
- The Hon. Elizabeth Evatt AC Chairperson of Public Interest Advocacy Centre (PIAC); whose organisations have worked in partnership with ATSIC to facilitate this conference.
Finally, can I just express a special thankyou to
- Our international guests who have come to share their knowledge with us and my fellow Commissioner Marion Hansen.
For the purpose of the exercise I will assume that I am talking to the converted and on that basis I do not intend to recount in detail the history of this country that has brought us to this point.
Suffice to say that it is not a history without blemish because of its unfair and unjust treatment of Indigenous people.
The process of reconciliation which began in 1991 offered a glimmer of hope for the nation to come to terms with its past history and subsequently commit to a process that would provide the opportunity for adequate redress of past injustices.
Coinciding with the process of reconciliation in 1995 the Federal Attorney General established a national inquiry into the separation of Aborginal and Torres Strait Islander children from their families.
This process provided yet another glimmer of hope especially to the majority of the audience in front of me today.
Individual members of the stolen generations consistently demonstrated the courage of their conviction that their story needed to be told regardless of the hurt and trauma caused because it helped to clarify why there is a need for an apology, compensation and reparation.
The timing of the processes in the last decade of the twentieth century could have resulted in the positive projection of Australia as a nation into the twenty first century.
Essentially, it provided an opportunity for the nation, led by the government, to demonstrate in a big way to the rest of the world that we had finally matured as a nation by taking responsibility for past wrongs.
Demonstrated by:
(A) The way it had acknowledged its part in the unfair and unjust treatment of the Indigenous peoples as the first peoples of the country; and
(B) its willingness to commit to a process that Indigenous peoples would consider as an appropriate act of reconciliation, compensation and reparation relative to the unjust acts to which they were subjected to by the institutions of governments and their agents.
Each process provided an ideal opportunity for the rest of Australia led by government to engage in an act of true reconciliation with its Indigenous peoples as the first peoples of the country.
Unfortunately, for many of us that was not to be.
To the contrary, the government, because it has failed to move toward the resolution of a number of unresolved matters of reconciliation such as a framework agreement act or treaty, a national apology, compensation and reparation to the stolen generations, has contributed to the manifestation of the divide between black and white relations in this country.
Despite this there remains a level of goodwill on both sides of the divide to continue down the path toward achieving real justice and true reconciliation.
This conference is a case in point - whereby ATSIC, HREOC and PIAC who were all committed in their own way to securing resolution of some of the outstanding matters of both processes elected to enter into a partnership with each other so that we could move the debate beyond the rhetoric of the two reports and their respective recommendations into the realm of active resolution.
There is a good opportunity that we can collectively achieve this.
I am not saying that what we have done and how we have come to this point is ideal but Ido think that the activity to date will provide the necessary focus for the conference.
I would encourage people to overlook the shortcomings of the process (primarily due to a lack of resources) and stay engaged throughout the course of the conference so that we do end up with an outcome that reflects the majority view within this auditorium.
I guess a number of you are saying to yourselves here we are again - and so we keep going always in the believe that todays effort will reap the produce of change conducive to our peoples aspirations.
Whilst I can't guarantee that it will I offer you the following quote by John Wolfgang von Goethe as a message of inspiration to sustain all us on our mission to secure just compensation and reparation for past deeds against members of the stolen generations.
I quote "sometimes our fate resembles a fruit tree in winter - who would think that those branches would turn green again and blossom, but we hope it, we know it."
We need to remember that the recommendations of the Bringing them home report were the message to governments of what needs to be done.
This conference provides the window of opportunity to indicate to governments how it can be done.
A reparations model is on the table, but Imust stress that this model is purely to focus the discussions so that we do not lose time through having to start from a blank sheet so to speak.
I think PIAC has assisted the process greatly by developing a model.
However, in the true spirit of self-determination ATSIC support for the model will be guided by the level of support that is forthcoming from Indigenous people themselves.
Particularly, those most affected by past practices - the individual members of the stolen generations.
Members of the audience may be aware the ATSIC is committed to a rights based agenda.
In the context of the reparations process this translates into the following endorsed policy positions of ATSIC
ATSIC endorses the Democrats minority report that stresses the need for urgency.
ATSIC believes the Australian parliament should formally apologise to Aboriginal and Torres Strait Islander people for the devastating effect of past laws and practices that led to the separation of Indigenous children from their families.
ATSIC believes that current laws and practices that affect Aboriginal and Torres Strait Islander children does not meet the requirements of the relevant United Nations conventions to which Australia is a signatory.
ATSIC believes that reparation and compensation should be made to those who were separated through a reparation tribunal to avoid the unnecessary trauma and expense of seeking redress through the courts.
ATSIC believes the Australian parliament should formally apologise.
ATSIC's view is that the forging of a common understanding of our history and the reconciliation of our people are goals which can be reached only by a collective and protracted effort of our whole nation.
ATSIC believes that any negotiations with members of the stolen generations on the best means of addressing their issues should be based on the principle of self-determination.
ATSIC is committed to its campaign for justice for the stolen generations.
ATSIC is committed to securing the recognition of the right of Aboriginal peoples and Torres Strait Islander peoples to enjoy their inherent and citizenship rights.
More importantly ATSIC has grounded its rights based agenda in the right to self-determination.
The right to self-determination is a fundamental principle of international human rights and is included as the first article of both the United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural rights (the ICCPR and ICESCR).
What this means in the context of the process linked to the recommendations of the Bringing them home report is that all Aboriginal peoples and Torres Strait Islander peoples have the right to be included in the design and delivery of programs and processes established to give effect to the recommendations of the Bringing them home report.
Because members of the stolen generation rights have been subjected to a process which resulted in an act of extreme violation of their fundamental human rights it is not only necessary but essential for them to be involved in any activity designed to redress the pain and suffering they have had to endure.
Requiring individual members of the stolen generations to seek redress through the courts is not an option that atsic subscribes to on the basis that:
- It causes further trauma;
- It is resource intensive and resources are very scarce; and
- It is subject to a degreee of bias because the court system within this country is based on a non-indigenous framework that has not demonstrated the capacity to consider the matter outside that framework.
The Commonwealth Government should be mindful of these and attempt to support an arrangement that is the least intrusive on the stolen generation members and as much as is possible is able to deal with the matter in a culturally appropriate framework and is grounded in a rights based approach.
The Commonwealth Government only has to look at the NT process to understand that forcing people down the path of litigation has almost a nil return for the massive human, financial and material resource input.
Its biggest return is its social, economic and political impact which more often than not negates the objective to resolve an outstanding grievance between opposing parties because the process is grounded in a system that has an adversarial basis.
Therefore, by the government requiring the members of the stolen generation to engage in a process of litigation to demonstrate the degree of detriment that they suffered as a member of the stolen generation is not only grossly unfair but is outrageous because of their lack of capacity to engage in a process of litigation because of restricted resources.
Is the government committed to setting up another infrastructure similar to that which was set up to deal with Aboriginal peoples and Torres Strait Islander peoples Native Title interests?
Surely not.
Surely the most efficient and cost effective approach is the establishment of a reparations tribunal that has been sanctioned by Aboriginal peoples and Torres Strait Islander peoples and the Commonwealth Government.
Moving toward a tribunal model is more conducive to dealing with this issue in that it is more conciliatary and therefore more humane in how individual members of the stolen generations may be treated as opposed to a court based adversarial approach.
ATSIC as the peak Indigenous organisation believes that the tribunal approach is the best model for dealing with the issues of the stolen generations and on that basis remains committed to assisting them to secure such an arrangement.
Thankyou
