Site navigation

Change font size: SmallerLargerReload

Aboriginal & Torres Strait Islander Social Justice navigation

Social Justice Report 2002

  • back to contents

    • Executive Summary

    Overview

    The Social Justice Report 2002 discusses initiatives currently underway or in development at the federal, state and territory levels in relation to Aboriginal and Torres Strait Islander Affairs. The report commends the following positive developments in Indigenous policy:

    Overall, however, the Report evidences that the past year has been another difficult one for Indigenous peoples in this country.

    In trying to provide a snapshot of the status of Indigenous policy making and achievements by governments over the past year, it is difficult to see any consistent forward trend. There have been marginal improvements in some statistical indicators, but deterioration in others. The policy approaches of governments are ultimately full of inconsistencies, ad hoc developments, and commitments that not only remain unmet but which are not adequately supported by institutional developments.

    There have been two particularly worrying trends that have been confirmed over the past year at the federal level. The first is a continuation of the antagonistic and adversarial approach to Indigenous policy by the federal Government.

    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.

    The second worrying trend is the relegation of Indigenous issues to a second tier issue for the Government. 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 not treated as a national priority, and there are no public commitments to timeframes for achieving results in areas on which there is substantial agreement - such as Indigenous disadvantage.

    At the state and territory levels, there is much goodwill being expressed with extensive commitments to partnerships with Indigenous peoples. These partnerships remain works in progress and it is unfortunate that they have not yet been accompanied by the necessary institutional support or action.

    The one true highlight of the past year, however, has been the demonstration through a range of processes that Indigenous peoples are not going to sit back and wait for governments' to solve the various problems faced in communities.

    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.

    There are two main issues that run through this report. First, the Report continually seeks to establish whether the Government's preference for certain words and symbols is merely rhetorical and is consistent with the principles that they symbolically reject, or whether it is in fact amounts to a substantive change of direction in Indigenous policy.

    The second feature of the report is that given the minimal framework for Indigenous policy being set by the federal government, it deliberately seeks to place Indigenous issues within a broader context. The report highlights the differences between self-determination and self-empowerment; practical reconciliation and progressive realization and a rights framework for addressing Indigenous disadvantage; and by considering international developments in the recognition of Indigenous rights. Each demonstrates the severely constrained approach that has been adopted by the federal Government and hints at the potential in a broader, rights-based approach.

    Contents of report

    Chapter 2 -'Self-determination: the freedom to live well' - examines the core principles which underpin the federal Government's approach to Indigenous affairs. Since 1998, the Government has openly rejected self-determination as the basis of policy formulation. This chapter provides an overview of international developments on Indigenous self-determination and compares this to the way the Government explains its policy approach in order to identify its limitations and considers options for reform.

    Chapter 3 - 'National progress towards reconciliation in 2002 - an equitable partnership?' - provides a progress report on reconciliation over the past year. It notes developments at the inter-governmental level, the federal government's responses to the documents of the Council for Aboriginal Reconciliation and the report of the Commonwealth Grants Commission, and the Government's agenda for reconciliation. Ultimately it questions the basis on which the Government seeks to engage with Indigenous peoples, and the lack of equality in the partnerships that it seeks to enter.

    Chapter 4 - 'Measuring Indigenous disadvantage' -provides a detailed analysis of current approaches to addressing Indigenous disadvantage. It draws on significant international developments in countering poverty and economic marginalisation, as well as international human rights standards. The chapter also considers in depth the framework for measuring Indigenous disadvantage that is currently being prepared for the Council of Australian Governments. There are some clear contrasts between the limiting framework of practical reconciliation and the more focused and accountable approach based on international guidance and standards.

    Chapter 5 - 'Indigenous women and the criminal justice system - A landscape of risk' - focuses on Indigenous women and their experiences of contact with criminal justice processes. This chapter paints a disturbing picture of the lack of support provided to Indigenous women in many areas of society and its consequent impact through criminalisation. The lack of attention to these issues by policy makers to date is a matter of great shame.

    Chapter 6 - 'International developments in the recognition of the rights of Indigenous peoples' - notes the extensive developments in the recognition of Indigenous rights at the international level. These are considered within two main contexts - the current review taking place within the United Nations of all the existing mechanisms at the UN dealing with Indigenous issues; and the International Decade for the World's Indigenous Peoples which is now in its final two years. This review illustrates how Australia has moved towards the most conservative end of the spectrum in addressing Indigenous rights.

    The report then concludes with an appendix which summarises partnerships and agreements that have been entered into between Indigenous peoples and state or territory governments in recent years.

    Chapter 2: Self-determination - the 'freedom to live well'

    In both the domestic and international arenas, Australia's opposition to recognition of a right to self-determination has been based on simplistic, and often legally incorrect, assumptions which present self-determination as purely symbolic, as a catchcry for all the failings of Indigenous policy in the past thirty years, or as 'a rigid choice between all or nothing - between the forming of an independent state or complete denial of a cultural and political identity'. The reality of Indigenous self-determination, however, lies between these extremes and is a process of negotiation, accommodation and participation.

    This chapter answers the question 'what is Indigenous self-determination?' by examining how this concept has developed in international law. It then examines the Government's position on self-determination in both the domestic and international arenas and provides an analysis of their approach.

    Self-determination and the 'politics of symbolism'

    Historically, the term self-determination was first applied to Indigenous policy by the Whitlam government in 1972. It replaced the by then largely discredited policy of assimilation and was a statement of the practical reality that assimilation simply didn't work. Since 1996, however, the Government has stated that it no longer supports self-determination as the basis of Indigenous policy formulation and announced that it would actively oppose recognition of Indigenous peoples' entitlement to such a right in international negotiations.

    In light of the broad acceptance of self-determination by Government for just under thirty years, the question that has to be asked is how have we now reached the situation where the current Government has rejected self-determination on the basis that it is purely a matter of 'symbolism' divorced from the day to day lives of Indigenous peoples? In my view, there are four main answers to this question.

    (Re-)Defining self-determination

    Debate on the application of self-determination to the situation of Indigenous peoples remains among the most difficult and controversial in any area of the United Nations. There are, however, a number of key features about the right of self-determination that are now established in international law which are of great assistance in evaluating the adequacy of the current approach by the Government in Australia.

    The right of self-determination is Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Australia is a party to both of these covenants and is bound to act in compliance with their terms.

    Article 1
     1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

    This formulation is repeated in Article 3 of the Draft Declaration on the Rights of Indigenous Peoples. There are two main areas of debate internationally about the provisions of the draft Declaration as well as about the application of the provisions of the international covenants. First, is whether Indigenous peoples are entitled to a right of self-determination? Second, if they are, what is the content of that right and what are the limitations on its exercise (or put simply, what is Indigenous self-determination)?

    a) Do Indigenous peoples have a right to self-determination?

    Indigenous peoples have been recognised as a separate, distinct category from minorities in international law. This is on the basis that Indigenous peoples possess a collective status whereas minorities in general do not. Some UN studies and the United Nations human rights committees have concluded that Indigenous peoples are in fact 'peoples' within the context of Article 1 of the international covenants and are therefore entitled to a right to self-determination.

    The contention by governments that Indigenous peoples constitute a 'peoples' and possess the necessary collective identity to be recognised as enjoying a right to self-determination can no longer be challenged with any legitimacy or credibility. Governments have not yet accepted this conclusion.

    b) What is Indigenous self-determination?

    Definition of self-determination: Self-determination is an ongoing process of choice for the achievement of human security and fulfilment of human needs with a broad scope of possible outcomes and expressions suited to different specific situations. These can include, but are not limited to, guarantees of cultural security, forms of self-governance and autonomy, economic self-reliance, effective participation at the international level, land rights and the ability to care for the natural environment, spiritual freedom and the various forms that ensure the free expression and protection of collective identity in dignity.

    The protection of self-determination unquestionably involves some kind of collective political identity for indigenous nations and peoples, i.e. it requires official recognition of their representatives, institutions and distinct cultural values.

    Respect for Indigenous peoples' relationship to land and resources is an integral component of self-determination, from an economic, social, political and cultural dimension. A lack of control of traditional lands and resources is often a significant institutional barrier to the realisation of Indigenous self-determination.

    Essential to the exercise of self-determination is choice, participation and control. The essential requirement for self-determination is that the outcome corresponds to the free and voluntary choice of the people concerned. Accordingly, self-determination does not have a prescribed or pre-determined outcome. It is a process that is ongoing. It is not a one off event or something that is defined as at a particular moment in history.

    A notion of popular participation is inherent to self-determination. In a democracy, Indigenous peoples right to self-determination is not necessarily safeguarded or respected by a reliance on majority rule. The nature of participation and representativeness required by self-determination necessitates going beyond sameness of treatment and to strive for institutional innovation.

    The maintenance of the territorial integrity of the State is linked to respect for self-determination. Numerous UN declarations limit the exercise of self-determination so that it does not threaten territorial integrity or unity of States. This is so long as those states conduct themselves in compliance with the principles of equal rights and self-determination of peoples and are representative. Continued government representivity and accountability is therefore a condition for continued application of the territorial integrity and national unity principles. The recognition of Indigenous self-determination in the draft Declaration on the Rights of Indigenous Peoples is also qualified in a way that guarantees the territorial integrity of States

    Secession is an extreme expression of self-determination and one that will only occur in the rarest of cases when all other processes have failed. The equation of self-determination with secession is made without reference to the existing state of international law and without an eye to history.

    Self-determination is not self-executing, unilateral or absolute in its application and is a process of engagement and negotiation. When balanced against principles such as the protection of territorial integrity, the international community is highly unlikely to recognise secessionist movements in States that are conducting themselves in good faith. There are no examples of aspirations for secession being expressed by Indigenous Australians.

    The fear by governments of secession is not soundly based in existing law or political reality. What is required for progress in recognition of Indigenous self-determination is for governments to stop acting in bad faith by automatically equating self-determination with secession.

    The Government's approach to self-determination

    The current Government has made clear that it does not support self-determination as the underlying principle for policy development in Australia. As the Government has gone about the task of locking into place its practical reconciliation approach it has simply disengaged on issues that it does not agree with. Accompanying this trend has been the tendency for the Government to co-opt language that has traditionally been used in relation to self-determination. An important question that must be addressed therefore is whether their opposition to self-determination is largely rhetorical and simply reflects a preference for a different word, or whether it is a genuine rejection of the legal concept of self-determination.

    Through domestic policy debates as well as international negotiations we can identify the following factors which are of relevance to the Government's position on self-determination.

    The government acknowledges that Indigenous peoples are the first people of Australia with a unique status and identities. The Government acknowledges that Indigenous peoples have not always been provided with equal opportunities in the past and that there is a need for special measures to overcome any consequent disadvantage that has resulted.

    The Government opposes recognising a right of Indigenous peoples to self-determination in domestic policy formulation as well as in international instruments. The government misrepresents self-determination as providing the right to unilaterally challenge national sovereignty and to imply the possibility of the establishment of a separate indigenous state or states within Australia. It is implied that self-determination or recognition of cultural group rights runs counter to the belief that all Australians should be equally subject to a common set of laws with no special treatment.

    While the Government does not support self-determination it does support Indigenous peoples having meaningful opportunities to exercise control over aspects of their own affairs and be engaged to the maximum extent possible as partners in the design and delivery of services. The opportunity to exercise control, however, is clearly confined within the context of citizenship entitlements and the 'same' benefits (or common rights) that all other Australians are entitled to.

    The extent of such control is never specified, although forms of self-government are rejected as a 'distraction'. The right of Indigenous people to exercise control over aspects of their lives is contrasted with the unacceptable contention that self-determination implies that a government must in some way relinquish responsibility for and control over those aspects of well-being over which it 'rightly has jurisdiction'. Agreement-making is seen as the 'new' way to achieving the acceptable goal of 'active partnership and consultation with government'. Capacity building of communities to be self-managing is also identified as an essential component to this 'new' partnership approach.

    However, this approach appears to not extend to recognition of Indigenous sovereignty and the transfer of institutional control to Indigenous communities. The Government's preferred concepts of self-empowerment and responsibility, defined as individuals being able to 'determine their own destiny', emphasise sameness, unity or 'one-ness'.

    While not accepting that there is a right to self-determination, the Government's position provides support in international negotiations to attempts by other countries to limit the recognition of self-determination to 'internal' as opposed to 'external' applications.

    Implementing Indigenous self-determination in Australia

    There are a range of significant differences between the Government's approach to self-determination and the understanding of it that has developed internationally. Ultimately, when we scratch beneath the surface of the Government's rhetoric their approach is exposed as a reductive, minimalist one that is not prepared to accommodate Indigenous aspirations or recognise any distinct status of Indigenous peoples in any meaningful way. The implications of this approach are significant and cannot be rejected simply as rhetorical or as representing a preference for a particular type of language.

    There are five main concerns that I have about the Government's approach, when compared to the fuller understanding of self-determination provided earlier.

    1) The Government's reliance upon inflammatory, provocative untruths to reject Indigenous self-determination;

    2) The failure, or perhaps refusal, of the Government to accept that any consequences flow from recognising the unique, distinct status of Indigenous peoples in this country. The Government seeks to limit the recognition of Indigenous peoples' status as if they were an undifferentiated minority group whose needs can be addressed under the umbrella of say multiculturalism and by guaranteeing sameness of treatment or opportunities for the same level of development. Native title, land rights and measures such as the Indigenous Land Corporation which are intended to address the consequences of Indigenous dispossession, are perfect illustrations of how Indigenous issues do not comfortably fit in this way. A more wide-ranging definition of equality, which focuses on outcomes (such as in terms of equality of protection of culture) rather than on inputs (such as by purely guaranteeing equality of opportunities, as if there were a level playing field) is needed.

    At present, the relationship between Indigenous people is defined according to little more than the beneficial intentions of Government to improve the life conditions of grossly disadvantaged Indigenous peoples. Such intentions are easily twisted into resentment and frustration at the amount of money spent when the desired improvements are not forthcoming. Defining a peoples' status and rights purely through their experiences of disadvantage is a dominating and disempowering approach. It is not a respectful basis for a relationship.

    3) The lack of recognition of Indigenous peoples' unique status has meant that there is no underlying basis, no guiding principles, for relations between governments and Indigenous peoples. Indigenous peoples have on several occasions identified principles that should underpin negotiations between themselves and Government, so that sufficient attention is paid to their distinct cultural characteristics and unique status in this country. The current approach, which has no such underpinning, leaves Indigenous policy formulation to develop without a consistent focus as to its purpose and without appropriate recognition of the status of Indigenous peoples.

    4) The Government's current framework is oppositional in its approach and sets up Indigenous peoples as competitors of government. There is a fear in the Government's approach that Indigenous peoples are going to usurp control and power over matters which they believe more appropriately belong as responsibilities of government. It is a strange, indeed almost paranoid, view of partnership. It is also, in my view, an unrealistic one that does not accurately reflect Indigenous aspirations nor reflect historical reality.

    Underlying the Government's concern about Indigenous control is a notion of loss of accountability. Central to the principle of self-determination is a notion of responsibility. Indigenous communities must be accountable for their decision making and expenditure. Issues of accountability, however, run two ways - accountability to the funding agency and government, and accountability to the community who are intended to benefit from the programme or policy intervention that is made. At present, there is a real imbalance with limited accountability back to Indigenous communities (and to the community as a whole).

    Ultimately, however, concern about ensuring adequate lines of accountability is not a reason for not engaging in a substantial process of involving Indigenous people in decision making and programme design and management. It is a reason to do so on an agreed basis, with a clear understanding as to accountability and monitoring requirements.

    5) There is no general acceptance by the Government of the legitimacy of Indigenous peoples being the primary decision makers on matters that affect their daily lives, and for efforts to build the capacity of Indigenous communities being directed at this aim.

    Conclusion - Reclaiming self-determination

    The Government's opposition to self-determination is not merely rhetorical. It has consequences and places limitations on the breadth of enjoyment of rights by Indigenous peoples and on their ability to participate meaningfully in processes that affect their lives.

    Overall, the concerns identified here point to major differences between a rights based approach to reconciliation and Indigenous policy formulation, and the approach currently favoured by the Government. There are two broad consequences that flow from this.

    First, a number of the concerns and contentions that are raised by the Government about self-determination in both the domestic and international arenas are unjustified. Some are not supported by developments in international law; others simply lack reality. In my view, these limitations and gaps in the Government's approach militate against effective policy and programme design in Australia. Second, the current approach of the Government to Indigenous policy formulation is introverted and myopic. It is unwilling to build on international developments or to accept that at core we are dealing with problems in relation to Indigenous peoples that are being faced globally. The current Australian approach is at the most conservative end of the spectrum internationally.

    Despite the Government's current approach, I remain heartened due the fact that Indigenous peoples have not sat by while this framework has been implemented or been passive in their response to it. Communities all over the country continue to work away at the realisation of their aspirations and goals with the often limited tools that they have at their disposal. The fact that the government does not support self-determination or put into place processes for its realisation is not the end of the matter. By focusing on the capacity of the community to resolve and own these problems, they place the community in a more powerful and central role to take control of their destinies. A central factor to the success of these processes, however, is the level of Government engagement and support for them. When we look to some current initiatives within a framework of self-determination, we can see the inconsistencies and ad hoc nature of the Government's intervention.

    True self-determination requires communities to marginalise the role of government in the functioning of their communities. It is a perversion that governments continue to exercise almost total control over many Indigenous communities. It is not a normal functioning of those communities or of government. We must continue to challenge the narrowness of the approach of the government. Communities must also not be discouraged from seeking their own resolutions to the problems that they face as communities. They must continue to reclaim self-determination from the government.

    Chapter 3: National progress towards reconciliation in 2002 - an equitable partnership?

    Implementing 'practical reconciliation'

    1) 'Changing Direction', the 5-point plan

    The 5-point plan outlined by Minister for Aboriginal and Torres Strait Islander Affairs at the ATSIC National Policy Conference in March 2002 reinforces the government's minimalist policy agenda on practical reconciliation. It includes:

    The rights agenda presented by the Minister's speech effectively strips away the right of Indigenous Australians to define their own destiny, governance and culture as autonomous peoples and promotes their absorption within rather than their co-existence with the Government's neo-rationalist conception of society as an 'aggregation of individuals'.

    2) 'Agreement making and sharing common ground'

    The Minister's speech at the ATSIC National Treaty Conference in August 2002 refutes claims that the Government's approach to Indigenous policy is assimilationist. The Minster emphasises citizenship rights and the ideal of an inclusive society but does elaborate what recognition the special place that Indigenous people occupy as the 'first Australians' or recognition of Indigenous culture might entail.

    The offer of inclusiveness to Indigenous Australians without consideration of the rights and values inherent within Indigenous cultures sounds all too much like invitation to conform to mainstream Australian society without extending a reciprocal invitation to non-Indigenous Australia to examine its relationship to the Indigenous population. Inclusiveness as defined in the Minister's speech is potentially a form of neo-assimilation.

    3) Expenditure on Indigenous-specific programmes

    A major component of the Government's approach to reconciliation is its reference to the record high levels of expenditure on Indigenous affairs. In the 2002-03 Budget this record expenditure reached $2.5 billion on Indigenous-specific programmes. Most of the increase on previous years was a flow-on from the $327 million of initiatives over 4 years announced in the 2001-02 Budget.

    This injection of additional funding still falls a long way short of the necessary funds projected to meet outstanding deficits across a range of key areas. Significantly the Budget also did not provide any increase in the government's existing allocation of $11 million funding for Indigenous-specific family violence projects over a four-year period, despite the intense media attention given to this subject over the past year and the government's use of this issue to reinforce its call for a practical reconciliation

    4) The Council of Australian Government's reconciliation framework

    The COAG Reconciliation Framework: Report on Progress in 2001 (Progress Report) was released subsequent to the COAG communiqué of 5 April 2002. While there is evidence of much good will in the Report, there is yet to be substantial progress made in addressing Indigenous disadvantage. Much of the Progress Report is devoted to detailing initiatives that are already in train and which consequently, have not necessarily been driven by COAG's priorities or commitments.

    Of particular concern are the developments (or lack of them) in regard to reporting Indigenous data and the establishment of action plans by each of the Ministerial Councils under COAG. The next progress report is to be submitted by the end of 2003.

    At the April 2002 meeting of COAG it was agreed to commission the Steering Committee for the Review of Commonwealth/State Service Provision (SCRCSSP) to develop a framework for reporting on key indicators of Indigenous disadvantage.

    The Steering Committee will publish a Framework for reporting on Indigenous disadvantage in August/September 2003, which will be included in the COAG report on reconciliation in December 2003. It is anticipated that the reporting under the framework will facilitate debate about the adequacy and appropriateness of policies and programs in functional areas (see chapter 4).

    While the framework is an important development it is of great concern that it is not accompanied by other processes which ensure sufficient and appropriate Indigenous participation in setting priorities and qualitative monitoring processes. As a result, the framework as a stand alone mechanism has the potential to reinforce practical reconciliation and marginalize further other issues of significance to Indigenous peoples.

    The framework also needs to negotiate the continuing problems with data availability and statistical collection, differentiation between population groups, and linkage with other reporting processes. (this framework is analysed in detail in chapter 4 of this report).

    A third initiative announced by COAG during the year was a trial of a 'whole-of-government' approach to service delivery in ten Indigenous communities. This initiative involves cooperation across government agencies under the leadership of a taskforce directed by a group of Commonwealth departmental secretaries, and includes ATSIC representation. Trials have commenced in the Cape York region (Queensland) and the Wadeye community (Northern Territory).

    This is a significant and commendable initiative. However, the impact of duplication and poor coordination services at an interagency level on service delivery to Indigenous communities have been observed for some time in regard to increasing levels of Indigenous disadvantage.

    In fact a range of approaches, including partnerships, agreements and governance arrangements, have been proposed with the aim of improving the service delivery environment for Indigenous Australians, most recently the Community Participation Agreements (CPA) being trialled by ATSIC as part of the Budget 2001 welfare reform package. This is no small part due to inflexibility and unwillingness to change current service delivery in approaches at the federal level.

    In order to avoid replication of past problems it is crucial that the fundamental issues concerning Indigenous service delivery be addressed and factored into the trial's processes and evaluation framework. The rights and autonomy of Indigenous partners be respected to ensure effective participation, and for Indigenous ownership of processes and structures be involved in modelling. Equal emphasis needs to be given to the responsibility of governments and government departments and agencies in improving their performance in regard to Indigenous communities.

    5) The Government's Response to the Commonwealth Grants Commission's Report on Indigenous Funding

    The Government responded to the CGC's report in June 2002, observing that the Report provided a valuable basis for development of evidence-based policy in Indigenous affairs. It contains a number of important undertakings and commitments, which are made in the context of 'Principles for equitable provision of services to Indigenous people' an agenda that provides an accountability framework for Government. The issue, as has been the case in the past, will be whether the rhetoric will be matched by action and by the level of priority accorded to these matters.

    A concern about the Government Response to the CGC is that it is confined to issues that fall within the 'practical reconciliation' agenda. The Government response states at the outset that 'the CGC report includes findings and makes observations that go beyond the terms of reference for the inquiry. [The Government's] response… is limited to those matters that are within the terms of reference'.

    The Government Response to the CGC acknowledges the difficulty in constructing regional indexes of relative needs because of the absence of adequate data. However, the continued narrowing of the government's focus on Indigenous funding to consideration solely of relative need means that some important issues highlighted by the CGC Report are largely disregarded, such as:

    The principles for equitable provision of services to Indigenous people put forward by the Government Response to the CGC could also be aligned more strongly with a human rights framework that sets benchmarks for progressive realisation of rights in addressing poverty and disadvantage. Such a framework could, for example, assist in clarifying the outcomes to be achieved by a policy approach for addressing Indigenous disadvantage and provide benchmarks for measuring progress in addressing inequality within a long-term perspective. As the principles currently stand it is difficult to see how they can ultimately be effective in addressing Indigenous disadvantage.

    Despite the difficulties surrounding the relationship between need and resource allocation it is important that the Government not repeat the mistakes of past policymakers and that in seeking to make mainstream services genuinely more responsive to Indigenous people, it builds a partnership that is grounded in standards of equity, effective participation and self-determination.

    6) The Government's Response to the Council for Aboriginal Reconciliation's Final Report Reconciliation: Australia's Challenge

    Government's Response to CAR's Final Report is certainly not representative of the content of CAR's recommendations: it responds to only one of the Council's six final recommendations, and it outright rejects one of its four, integrated national strategies.

    The following 'practical reconciliation' themes are commonly reiterated in the Government's Response to the CAR documents:

    A minimalist response to symbolic issues

    The recommendations concerning 'symbolic' issues, including those often publicly identified with a rights agenda such as the enactment of legislation for a treaty process or constitutional recognition of Indigenous Australian's rights, receive scant treatment in the Government's response to CAR's final report.

    While the Government's support for processes to acknowledge the special place of Indigenous peoples in the life and history of Australia in Commonwealth ceremonies and for a referendum to repeal section 25 of the Constitution are welcome initiatives, the Government Response to CAR lacks commitment and direction to making reconciliation a reality into the future.

    These elements are evident in the government's refusal to pursue legislation that would enshrine the principles in the CAR documents (Recommendation 2); to affirm the Australian Declaration Towards Reconciliation (Recommendation 4); and to enact legislation to support a treaty or agreement process to address the unresolved issues of reconciliation (Recommendation 6).

    While the Government has challenged Indigenous requests for a treaty by arguing that it does not enjoy widespread community support, public opinion is not the sole determining factor in the liberal democratic process:

    There are periods in Australian history prior to the 1967 referendum when basic citizenship rights for Indigenous people may not have received widespread community support but this does mean that some of the dehumanising treatment experienced by Indigenous people or the failure of past governments to protect their basic rights was in any way supportable. The recognition of Indigenous inherent rights deserves national leadership within the reconciliation process including legal protection where appropriate.

    The perceived divisiveness of self-determination

    Related to the Government's continuing refusal to countenance recognition and protection of Indigenous people's inherent rights is its commitment to perpetuating the misconception that Indigenous self-determination will necessarily be divisive as it 'carries the implication of a separate Indigenous state or states.' As explained in chapter 2, self-determination does not constitute such a threat to national unity as it does not amount to a right of secession.

    An emphasis on perceived areas of agreement

    While the Government's response to CAR is quick to suggest that there is significant conflict between the Indigenous and non-Indigenous communities, it does not annotate or provide any comprehensive analysis of the polls it claims substantiate these areas of disagreement. By contrast, a poll conducted by Issues Deliberation Australia (IDA) - 'Australia Deliberates on Reconciliation' on 16-18 February 2001 found significant changes in perceptions and increases in knowledge among non-Indigenous Australian participants as a result of this debate.

    The government's emphasis on finding ground also supports a tendency to prioritise its own agendas at the expense of those of Indigenous people. While overcoming Indigenous disadvantage is the only major point of agreement between the government and Indigenous leaders in regard to reconciliation, it does not follow that there is common assent to a practical reconciliation approach.

    This is a continuation of a pattern in the government's 'take it or leave it approach' to reconciliation which implies that Indigenous people are dependent on the benevolence of government rather than the establishment of an equal partnership in developing the terms of debate in regard to reconciliation and Indigenous policy.

    Misrepresenting progress towards practical reconciliation

    The Government's response to the CAR documents also list significant achievements of practical reconciliation across a range of socio-economic indicators. This list of 'progress' does not admit to the continuing gravity of Indigenous disadvantage as indicated by recent Census data and a range of other reports. Close examination of the gains from reconciliation for Indigenous people listed in Government's response to CAR against these latest findings suggest that the government is not providing a very clear delineation of outcomes for Indigenous people but a somewhat limited and even misleading view.

    Again, the absence of a long term commitment to overcoming Indigenous disadvantage, with short, medium and long term targets, masks the distinct lack of progress in addressing Indigenous disadvantage within a practical reconciliation approach. There is a continual need for Indigenous organisations to unravel the statements of the Government so that it can be held accountable for the real lack of achievement.

    Conclusion

    There are two features to the government's practical reconciliation approach that are of particular concern:

    Chapter 4: Measuring Indigenous disadvantage

    A significant development in the past year has been the development of a Draft framework for reporting on Indigenous disadvantage to be implemented across all Australian governments by the Council of Australian Governments (COAG). The draft framework has been developed by the Steering Committee for the Review of Commonwealth/State Service Provision. This chapter considers the implications of the draft reporting framework and assesses the adequacy of this approach when compared to relevant international human rights and development standards.

    A human rights approach to addressing Indigenous disadvantage

    Aborigines and Torres Strait Islanders are significantly disadvantaged in contemporary Australian society. This disadvantage represents a failure to provide in full measure the human rights to which Australian Indigenous people are entitled.

    Australia has ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and is consequently bound to implement its provisions. A number of the provisions of ICESCR are directly relevant to the disadvantage suffered by Indigenous Australians, including rights to an adequate standard of living, including in housing and infrastructure; the right to the enjoyment of the highest attainable standards of physical and mental health; and an adequate standard of education.

    Article 2 (1) of ICESCR requires a State party to the Convention to undertake 'to take steps,…to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means…'

    While this obligation 'to take steps' means that the full realization of relevant rights may be achieved progressively, the taking of such steps cannot be delayed, and further, those steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant. An integral part of the obligations assumed by States in ratifying the Covenant is to develop strategies, identify indicators and determine benchmarks.

    The Social Justice Report 2000 identified five integrated requirements that need to be met to comply with these human rights obligations when seeking to redress Indigenous disadvantage and to provide sufficient government accountability. The five requirements are:

    Integrating human rights standards with development goals and poverty eradication

    In recent years the United Nations has begun to integrate human rights principles into the whole of the Organisation's work, including the overarching development goal of poverty eradication.

    The United Nations Development Program's Human Development Report 2000 emphasises the mutually reinforcing relationship between human rights and human development, and highlights the need for innovative thinking, strategic planning and cultivating new partnerships in integrating human rights considerations into program formulation and implementation.

    The Report examines the importance of statistical indicators as powerful tools in the struggle for human rights. While statistics alone cannot measure the full dimension of rights, they can allow human rights to be more concretely relied upon in designing and evaluating policy. The UNDP has provided a framework for what the statistics should measure so that they adequately assess progress in the realization of human rights. They suggest that statistics must address the following three perspectives, simultaneously:

    Benchmarking is a useful tool for measuring whether adequate progress is being made in realising rights. Targets may not all be achievable immediately - they may be subject to progressive realization. States should identify appropriate indicators, in relation to which they should set ambitious but achievable benchmarks (ie intermediate targets) corresponding to each ultimate target, so that the rate of progress can be monitored and, if progress is slow, corrective action taken. Thus, indicators measure progress towards both intermediate and ultimate targets.

    Setting benchmarks enables government and other parties to reach agreement about what rate of progress would be adequate. The stronger is the basis of national dialogue, the more national commitment there will be to the benchmark. The need for debate and widely available public information is clear. If benchmarks are to be a tool of accountability, not just the rhetoric of empty promises, they must be, according to UNDP:

    In 2002, this Report was supplemented by the release by the Office of the UN High Commissioner on Human Rights and the UNDP of Draft Guidelines on Poverty Alleviation. The objective of the guidelines is to provide practitioners involved in the design and implementation of poverty reduction strategies with operational guidelines for the adoption of a human rights based approach. The purpose is to focus on providing guidelines for the use of States that are integrating human rights into their poverty reduction strategies.

    The guidelines state that policies and institutions for poverty reduction should be based explicitly on the norms and values set out in the international law of human rights, and that the human rights approach to poverty reduction is essentially about empowerment. The most fundamental way in which empowerment occurs is through the introduction of the concept of rights itself. Poverty reduction then becomes more than charity, more than a moral obligation - it becomes a legal obligation.

    The guidelines in effect synthesise, develop and systematise the various approaches that have grown up in different agencies and in various reports and documents. The guidelines state that, in sum, a human rights approach has the potential to advance the goals of poverty alleviation in a variety of ways:

    a) By urging speedy adoption of a poverty reduction strategy, underpinned by human rights as a matter of legal obligation;

    b) By broadening the scope of poverty reduction strategies so as to address the structures of discrimination that generate and sustain poverty;

    c) By urging the expansion of civil and political rights, which can play a crucial instrumental role in advancing the cause of poverty reduction;

    d) By confirming that economic, social and cultural rights are binding international human rights, not just programmatic aspirations;

    e) By adding legitimacy to the demand for ensuring meaningful participation of the poor in decision-making processes;

    f) By cautioning against retrogression and non-fulfilment of minimum core obligations in the name of making trade-offs; and

    g) By creating and strengthening the institutions through which policy-makers can be held accountable for their actions.

    Relevant international norms, the views of the treaty monitoring committees, and developments in UN bodies in integrating human rights and poverty alleviation, are crucial elements in addressing Indigenous disadvantage in Australia.

    The Council of Australian Governments framework for addressing Indigenous disadvantage

    In April 2002, the Council of Australian Governments (COAG) decided to commission the Steering Committee for the Review of Commonwealth/State Service Provision (SCRCSSP) to produce a regular report against key indicators of Indigenous disadvantage. The key task of the report will be to identify indicators that are of relevance to all governments and Indigenous stakeholders and that can demonstrate the impact of program and policy interventions'.

    The Committee's draft framework has three logically related priority outcomes. They are:

    The framework then has a two tier set of indicators. These encompass 'headline indicators' of the higher order outcomes, and a second tier or 'strategic areas for policy' action. These emphasise the possible need for joint action within and across governments.

    Eight strategic areas for action have been identified. For each of these strategic areas, a few key indicators ('strategic change indicators') have been developed with their potential sensitivity to government policies and programs in mind. These strategic change indicators are not intended to be comprehensive - it is not possible to incorporate into the framework all of the factors that influence outcomes for Indigenous people. The strategic areas for action have been chosen on the evidence that action in these areas is likely to have a significant, lasting impact in reducing Indigenous disadvantage. The 8 areas, and the rationale for their choice, are briefly described below:

    1. Early child development and growth (prenatal to age 3)
     Early child development can have significant effects on physical and mental health in childhood and adulthood, growth, language development and later educational attainment.

    2. Early school engagement and performance
     Early school engagement is important for establishing a foundation for educational achievement, retention in secondary schooling, opportunities in employment and minimising contact with the justice system later in life.

    3. Positive adolescence and transition to adulthood
     Participation in school and vocational education; and community, cultural and recreational activities, encourages self-esteem and a more positive basis for employment. Such participation also assists in avoiding contact with the justice system.

    4. Breaking the substance abuse cycle
     Abuse of alcohol and other substances affects later physical and mental health, family and community relationships and contact with the justice system. Tobacco use is the greatest single contributor to poor health outcomes.

    5. Functional and resilient families and communities
     Functional and resilient families and communities influence the physical and mental health of adults and children and contact with the justice system. Problems in families and communities can lead to breaks in schooling and education, disrupted social relationships and social alienation.

    6. Building on the strength of Indigenous culture
     A strong Indigenous culture provides a foundation for strong families and communities, economic development, self-determination and community resilience, reduced youth alienation and reduced self-harm and suicide.

    7. Functioning environmental health systems
     Clean water, adequate sewerage, housing and other essential infrastructure are important to physical well being and health, nutrition and physical development of children.

    8. Economic participation
     Having a job or being involved in a business activity not only leads to improved incomes for families and communities (which has a positive influence on health, education of children, etc) it also enhances self-esteem and reduces social alienation.

    The lack of data, or inability to collect them, can explain why some otherwise desirable indicators are not included. However, where data are not currently (or only partly) available, but the indicator is important enough, an indicator may still be included as an incentive to improve data quality.

    Incorporating human rights into benchmarking reconciliation

    The previous section provides an outline of a significant range of measures that are relevant to benchmarking reconciliation in an international and domestic context. This material was the basis of discussion over two days at the workshop that I convened on 28-29 November 2002.

    The workshop proceeded with an overview of the issues discussed above, and particularly with an overview of the Draft framework for reporting on Indigenous disadvantage prepared by the Steering Committee for the Review of Commonwealth/State Service Provision (SCRCSSP). The participants then considered the following issues over the course of the workshop:

    The Workshop raised a number of serious concerns from a human rights perspective about the current development of indicators and benchmarks in respect of Indigenous disadvantage.

    First, the current draft framework for reporting on Indigenous disadvantage appears to have been developed with little reference to human rights standards, to Australia's international obligations, or to relevant international experience. Perhaps reflecting an emphasis on 'practical reconciliation', the Draft framework consequently fails to develop a series of indicators of Indigenous socio-economic disadvantage within a rights framework. Specific reference should particularly be made to the Draft Guidelines on Poverty Alleviation developed by the UNDP and the UN Office of the High Commissioner for Human Rights.

    Second, serious concerns were also expressed about the failure of the proposed indicators to adequately reflect Indigenous governance and capacity-building objectives. These matters require urgent attention before the Draft framework is approved by COAG. Given the apparent commitment to these issues by the federal Government, this is a test of the extent to which it is actually prepared to negotiate and enter into partnerships with Indigenous communities.

    Third, the present failure of the indicators to reflect traditional and subsistence economic activity and production is a major concern. It is likely to skew results against remote and outstation communities. Urgent attention needs to be given to the literature and research on these matters, and subsistence production and activity needs to be accommodated in the indicators.

    Fourth, the draft framework intends to provide a reporting tool on a national basis. However, it needs also to be able to be disaggregated to a sufficient level to provide meaningful and realistic results as a guide to policy review and formulation. The ability to disaggregate results on a regional basis would appear to be a high priority (perhaps by ATSIC region).

    Fifth, considerable concern was evident at the Workshop about the level and nature of consultation to date with Indigenous representatives, organizations and communities about the Draft framework, including the tight deadlines prevailing and whether the consultation has been wide and/or representative enough. There is the possibility that the Draft framework, rather than being perceived as a positive tool for partnership between governments and Indigenous peoples, will be met with suspicion and distrust, and seen as yet another government contrivance thrust upon Indigenous society.

    Conclusion

    Ultimately, the Steering Committee's framework must be acknowledged as a significant development. It is in fact the only positive form of monitoring and evaluation that the Government has provided for practical reconciliation. The overarching concern however is that if constructed and too narrowly focused on practical reconciliation, to the exclusion of other important factors it could be co-opted as a political tool for reinforcing and legitimizing what is ultimately a limited approach to Indigenous issues.

    Care must be taken, however, to ensure that the Steering Committee framework is not seen as a panacea or as intended to fulfill the monitoring role across the full range of issues. In my view, the greatest deficiency in this process is not the draft indicative framework per se but the fact that it currently exists in isolation from any other form of performance monitoring, particularly on identifying progress on important goals such as capacity building and governance reform, as well as identifying the unmet need and accordingly whether policy approaches are moving forward or in fact regressing.

    The Steering Committee's framework is a significant institutional development in measuring progress for Indigenous peoples. When assessed from the perspective of human rights standards and recent international developments integrating strategies for poverty eradication and development, it can be seen that it is a partial measure and needs to be built on with other processes and analysis.

    Chapter 5: Indigenous women and corrections - A Landscape of Risk

    This chapter provides a broad overview of issues that Indigenous women face in criminal justice processes. Due to the general dearth of research and statistics it is necessarily broad in its focus, and points to areas requiring follow up action and further investigation. Despite these limitations, 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 at all. Indigenous women indeed live in 'a landscape of risk' and suffer at the crossroads of race and gender.

    Indigenous women are currently incarcerated at a rate higher than any other group in Australia. While Indigenous men face unacceptably high rates of incarceration, the rate for Indigenous women is significantly higher and is rising at a faster rate. The rising rate of 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. Once imprisoned, recidivism statistics also indicate that Indigenous women are at greater risk of returning to gaol.

    A statistical overview of Indigenous women in corrections

    a) Rates of incarceration of Indigenous women: The number of Indigenous women incarcerated has increased from 104 in 1991 to 370 Indigenous women in 2001. This represents an increase of 255.8% over the decade. Similarly, rates of over-representation of Indigenous women are higher than for Indigenous men. 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.

    Other statistical reports also tell us the following about Indigenous women in corrections:

    b) Recidivism rates among Indigenous women: National statistical data indicates that nearly 3 in every 4 (76 percent) of all Indigenous prisoners had been previously imprisoned. In New South Wales, 'almost 85% of Aboriginal women in prison have previously been in custody compared with 71% of non-Aboriginal women.' Recidivism rates for Indigenous compared to non-Indigenous women are higher in all jurisdictions. For example, preliminary findings of a Victorian study on the prison population found a rate of re-offending of 71 percent among Indigenous women compared to a rate of 61 percent average in 2000 among the female population.

    c) Types of crime committed by Indigenous women: Statistics on crimes committed by Indigenous women indicate that there is a considerable degree of variation in criminal behaviour across jurisdictions and within regions. There is also a steady and significant increase in most categories of offences. Thus, there were 100% more Indigenous women in prison for homicide related offences in 2001 than 1994, 127% more for assault and related offences, 440% more for robbery, and so on. The increases were reasonably comparable across many offence categories, although of particular significance has been the increase in imprisonment for robbery offences, which outstripped all other changes.

    Nationally, Indigenous women comprise nearly 80% of all cases where women are detained in police custody for public drunkenness. Similarly, by comparison to non-Indigenous women, Indigenous women are more likely to be incarcerated for violence. There has been a past general trend of low numbers of Indigenous people imprisoned for drug offences. However, survey data from New South Wales and Victoria indicate wide use of drugs including narcotics. A further significant factor in the incarceration of Indigenous women is fine defaulting.

    d) Over-policing: A further concern about Indigenous women's contact with criminal justice processes relates to the potential over-policing of Indigenous women. For example, in New South Wales, the Select Committee into the Increase in Prison Population found in 2001 that the most significant contributing factor to increases in the rates of incarceration of Indigenous women was the increase in the remand population. There was no evidence to suggest that an in increase in actual crime accounted for the prison increase, although increases in police activity and changes in judicial attitudes to sentencing were also important.

    e) Sentencing patterns for Indigenous women: Indigenous women tend to receive shorter sentences than non-Indigenous women. General rates of over-representation tend to indicate that Indigenous women are not being provided with non-custodial sentencing options. Shorter sentences also appear to be linked to high rates of incarceration for public order offences.

    f) Characteristics of Indigenous women who are imprisoned: In general Indigenous women in gaol are slightly younger than non-Indigenous women. There are no national figures for Indigenous women prisoners with children, but a majority of incarcerated women are mothers.

    Indigenous women also often enter custody with poor physical or mental health. Research in Victoria has revealed that many women self harm soon after release from prison. This includes drug overdose & other types of self harm. In NSW in comparison to a non-Indigenous woman, an Aboriginal woman is:

    Accompanying these factors is a strong argument that Aboriginal women receive poor responses from police to complaints about violence and other disturbances. One reason suggested for under-policing in relation to alleged assaults is a perception that family violence is part of Aboriginal culture or a 'tribal norm.' Another connected reason is the view that Aboriginal women are undeserving of police protection. Recognition of the causes of violence is crucial to developing solutions.

    While there are limits on the statistics that are available on Indigenous women in corrections, there is sufficient data to indicate serious problems underlying Indigenous women's contact with corrections. The reasons derive in part from a combination of the ongoing impact of colonisation on the culture, laws and traditions of Indigenous communities, poverty and other forms of socio-economic disadvantage. This manifests in many ways including alcohol and drug use, homelessness and violence. Research has identified a strong correlation between imprisonment of Indigenous women and the experience of sexual assault and separation from family. The impact of alcohol related crime, and increasingly in some jurisdictions, drug related crime requires further investigation.

    Poverty and disadvantage are widely recognised indicators for offending behaviour. There is a correlation between the highest rates of imprisonment of Indigenous people in the most disadvantaged areas of New South Wales, although further research is needed to confirm the links.

    Experiences of Indigenous women in corrections

    Addressing the needs of Indigenous women in corrections

    Election driven law and order campaigns primed to drive up incarceration, a lack of government action to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody and lack of judicial activism to implement the recommendations of the Royal Commission on non custodial sentences are some obvious and ongoing causes of over representation.

    Criminal conduct by Indigenous women must be viewed as a symptom and offenders as the casualties of colonisation. Links must be drawn and holistic models developed and supported which address the connections between culture, drug use, alcohol use, separation from family, violence, poverty, spiritual needs, housing, health, boredom, race discrimination and gender discrimination.

    Indigenous people are constructing, reconstructing and participating in programs and models for dealing with criminal justice issues. These include community policing, night patrols, Community Justice Panels and Groups, circle sentencing, and participation in courts such as the Nunga court (SA), Murri court (Qld) and Koori court (Vic).

    Programs have now been developed and evaluated, particularly around family violence for women, men and children, and Indigenous participation in drug court trials. These indicate that it 'is very important to give responsibility back to the community, through the case management, future planning and post release programs and services. The community must also be properly supported in these initiatives'.

    Indigenous people have looked to new models and in so doing, look to the past for answers. One example is the development of restorative justice models to deal with violent behaviour within communities. Restorative justice models engage community, victim and offender. The victim's rights to safety and security are paramount, and the participation of Indigenous Elders is essential. This approach has been considered by the Indigenous Services Unit of New South Wales Corrective Services with the view of developing a similar initiative for Aboriginal women in New South Wales.

    Indigenous women are disadvantaged by the lack of services designed for them. This is an example of intersectional discrimination. It is a consequence of a rights and policy structure which identifies groups of needs and rights holders such as women and Indigenous people, but fails to provide for the needs of people who dwell at the intersection of these groups.

    There should also be recognition that community extends into gaols. Elders recognised this long ago and have been visiting the large numbers of incarcerated Indigenous people for many years. The many successful programs (such as CDEP) now running in communities could be adapted for Indigenous women in gaol. For many women, gaol is a time of reflection and a time where culturally appropriate programs would be extremely beneficial.

    By contrast, there is an increasing understanding of the vulnerability of Indigenous women to the impact of a lack of post-release resources. Evidence indicates that women are at serious risk of self-harm and harm from others in the period immediately after incarceration. It is important that rehabilitation be undertaken in prison and continued on release. Rehabilitation is important of itself, but it is also crucial in preventing recidivism.

    Issues that pre- and post-release programs should address include:

    Chapter 6: International developments in the recognition of the rights of Indigenous peoples

    This chapter examines the current status of the recognition of the human rights of Indigenous peoples at the international level and in the processes of the United Nations.

    Indigenous peoples in international law - A history of exclusion

    There are two main aspects to Indigenous peoples' struggle for recognition at the international level. The first concerns the participation of Indigenous peoples or put differently, the struggle for recognition of our legitimate place at the negotiating table. The second is the struggle for the recognition and protection of Indigenous peoples' distinct rights in international law.

    The two are inter-related and cannot be separated. Indeed they have operated in tandem for the past thirty years, with gains in participation at the international level influencing the development of standards relating to Indigenous peoples. The struggle for participation at the international level and the recognition of Indigenous rights has at its core the same purpose. 'The goal of Indigenous Peoples is to act and be treated as subjects - and not as objects - in international law.'

    Historically, Indigenous peoples have been denied such involvement and protection in international law. By the nineteenth and early twentieth century, international law upheld a system dominated by predominately western, colonizing nations that protected the integrity of the territorial gains made through colonization. This approach has been reinforced through the structures and processes of the League of Nations and its successor, the United Nations.

    For Indigenous peoples, the fact that international law is primarily determined by those who have colonized their lands and subjugated them has operated as the primary obstacle to the consideration of Indigenous issues at the international level until into the 1970's and of any recognition of Indigenous peoples as subjects at international law until into the 1980's. It clearly remains the primary obstacle to the full realization of Indigenous human rights at the international level today.

    The basic United Nations texts and treaties, for example, contain no specific or explicit reference to Indigenous populations. Article 30 of the Convention on the Rights of the Child today remains the sole human rights treaty provision that specifically refers to Indigenous peoples. Up until the 1970's, Indigenous issues were generally considered as part of a broader focus on human rights problems such as forced labour, slavery or through a focus on the human rights situation in a particular country or region. The one international agency that had devoted specific attention to Indigenous peoples up to the 1970s was the International Labour Organisation (ILO).

    The 1970's can generally be seen as the turning point at which the international community began to pay more intensive and sustained attention to the situation of Indigenous peoples. In 1971, a study on racial discrimination submitted to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (the Sub-Commission) included a recommendation that a specific study be conducted on the situation of the problem of discrimination against Indigenous populations. Such a study was authorised by the Economic and Social Council (ECOSOC) of the United Nations in 1971 and was commenced by Jose R. Martinez Cobo in 1972. The Cobo report, as it is commonly known, was prepared over the next decade and was submitted to the Sub-Commission in 24 instalments between 1981 and 1984 with its conclusions and final recommendations compiled in a consolidated volume in 1987.

    The 1970's also saw the international mobilization of Indigenous peoples with the support of non-government organisations (NGO's). In response to these calls and the preliminary findings by Cobo, the Working Group on Indigenous Populations (WGIP) was established at the United Nations in 1982 as a forum to specifically address the issues of Indigenous peoples.

    The Working Group on Indigenous Populations - from exclusion to participation at the international level

    The Working Group on Indigenous Populations was established by the Economic and Social Council (ECOSOC) of the United Nations in 1982. The Working Group comprises five independent experts who are to implement the Working Group's twofold mandate.

    First, they are required to 'review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of Indigenous populations' and accordingly to submit conclusions and recommendations to its parent body, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (recently renamed the Sub-Commission on the Promotion and Protection of Human Rights). Second, they are required to 'give special attention to the evolution of standards concerning the rights of Indigenous populations, taking into account both the similarities and the differences in the situations and aspirations of Indigenous populations throughout the world'.

    The Working Group was created at the lowest possible level of the United Nations. Its influence over the first twenty years of activity, however, has far outstripped its operational level within the United Nations.

    The contribution of the Working Group in shaping the consideration of Indigenous issues at the United Nations has been most felt in three ways. First, its historic - and ongoing - significance remains the opening up of international processes to the participation of Indigenous peoples. The flexible processes for participation of Indigenous organizations in the Working Group's deliberations set a precedent which has been followed by some UN agencies and international organizations.

    Second, the Working Group has been highly successful in influencing the agendas and advising the various agencies of the UN on their approaches to Indigenous peoples. Nearly every activity of the UN relating to Indigenous peoples since 1982 can be traced back to the Working Group's deliberations and recommendations in some way. This achievement is not purely an historic one. It has an ongoing dimension with the Working Group continuing to make an important contribution to international developments and the evolution of standards.

    Third, the Working Group has fulfilled an enormously valuable standard setting role under the second element of its mandate. At its eleventh session in July 1993 the Working Group agreed on a final text for the Declaration on the Rights of Indigenous Peoples. While the draft Declaration has floundered in negotiations in the Government controlled Working Group on the draft Declaration, it has already been of great normative value. The consistent elaboration of Indigenous peoples' claims, particularly in relation to cultural identity, self-determination, informed consent and self-identification, has influenced the policy approaches of international agencies such as the World Bank, UNESCO, UNDP and World Health Organisation.

    It was also a major influence in the International Labour Organisation's decision to revise ILO Convention 107 and develop ILO Convention 169, titled Convention concerning Indigenous and tribal peoples in independent countries, in 1989. United Nations Human rights treaty committees have also responded to the advocacy of Indigenous peoples' rights through the processes of the Working Group. Despite the completion of the draft Declaration, the Working Group has yet to exhaust its standard setting function.

    Commitments to developing partnerships with Indigenous peoples - From Rio and Vienna to the International Decade of the World's Indigenous people

    By the early 1990s, governments and the United Nations began to commit to developing partnerships with Indigenous peoples at the international level. On 18 December 1990 the General Assembly of the United Nations proclaimed 1993 as the International Year of the World's Indigenous People.

    Around the same time, the role of Indigenous peoples in addressing environmental and sustainable development issues became increasingly recognized in a variety of international processes. Indigenous issues and the importance of the participation of Indigenous peoples were given prominent attention at the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992. Since the Rio Summit a number of legal instruments on the environment have been developed which are relevant to Indigenous peoples. These include the United Nations Framework Convention on Climate Change, the Convention to Combat Desertification, and the establishment of the United Nations Forum on Forests. Perhaps most notably, the Convention on Biological Diversity was adopted in Nairobi in 1992.

    Indigenous peoples' rights also received significant attention at the second World Conference on Human Rights, which was held in Vienna in June 1993. In December 1993 the General Assembly acted upon the recommendation of the Vienna Conference and proclaimed the International Decade of the World's Indigenous People. The Decade is to run from 10 December 1994 to 9 December 2004 and the theme of the Decade is 'Indigenous people: partnership in action'. The General Assembly set the following five, inter-related objectives for the International Decade, which are:

    The International Decade provides a framework for the strengthening of activities relating to Indigenous issues across the UN. It is a strong indication of the priority which the international community states it attaches to addressing Indigenous peoples' issues through international cooperation and to strengthening the participation of Indigenous peoples at the international level in issues that affect them.

    Action at the international level has, however, been slow in implementing these commitments and in addressing the objectives of the Decade. The High Commissioner for Human Rights noted in 1999 that there has been 'an evolution over the last five years in the development of policy guidelines, programme activities, consultation mechanisms, specific funding and staff resources being dedicated to Indigenous peoples issues' in many United Nations agencies and that accordingly, the objectives of the Decade were beginning to be met by a growing number of UN agencies.

    But there have also been ongoing problems for implementation of the Decade flowing from 'the limited human resources available and the lack of funding for the activities themselves' and limited commitment from governments.

    'You have a home at the United Nations' - The creation of the Permanent Forum on Indigenous Issues

    A major focus of the Decade has been on the proposal to establish a permanent forum within the United Nations to address the 'striking absence of a mechanism to ensure regular exchange of information' and the participation of Indigenous peoples. A number of high level reviews relating to the Decade have supported the establishment of a permanent forum as a matter of priority and as a main way of meeting the objectives of the International Decade.

    The Permanent Forum on Indigenous Issues was established by the Economic and Social Council on 28 July 2000. Significantly, it was established as a subsidiary organ of the Council. In practical terms, this places the Permanent Forum at the highest level of the United Nations possible without amendment to the UN Charter.

    As an advisory body to the Economic and Social Council, the Permanent Forum has a wide-ranging role to discuss Indigenous issues that fall within the mandate of the Council. This includes issues relating to economic and social development, culture, the environment, education, health and human rights. Its function is to:

    a) Provide expert advice and recommendations on Indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council;

    b) Raise awareness and promote the integration and coordination of activities relating to Indigenous issues within the United Nations system; and

    c) Prepare and disseminate information on Indigenous issues.

    The Permanent Forum is to report annually to the Council on its activities, at which time it can make any recommendations on Indigenous issues. The Permanent Forum met for its inaugural session in New York from 13-24 May 2002. At this early stage there are four main factors about the Permanent Forum that warrant comment in relation to the objectives of the International Decade.

    First is to note the sheer scope of the role of the Permanent Forum and its potential to transform consideration of Indigenous issues at the international level. The potential of the Permanent Forum is that it will be able to mobilise the entire United Nations system to addressing the circumstances and issues of Indigenous peoples the world over. It is ultimately a powerful monitoring mechanism to hold these agencies accountable for their performance on Indigenous issues.

    The second feature of the Permanent Forum is that it offers unprecedented scope for Indigenous peoples to participate in the programming and policy directions of the agencies of the United Nations.

    The third feat