1) Native Title: Withdrawal of Basic Land Rights

In 1992, after over 200 years of denying the existence of Indigenous customary rights to land, the historic High Court Mabo decision established recognition in the Australian legal system of the existence of continuing Indigenous systems of land ownership or "native title". The downside for Indigenous people was that Mabo also suggested that native title had been extinguished over large areas of Australia by Crown grants of freehold and possibly other tenures.

Nevertheless, Mabo required that the Commonwealth address the question of native title rights, particularly where these may be found to coexist with certain non-indigenous land tenures. The Keating Labor Government entered into negotiations with indigenous leaders and other affected stakeholders to find a legislative solution. These negotiations resulted in the Native Title Act 1993.

In 1996, the High Court's Wik decision confirmed that native title rights could coexist with pastoral and other leasehold tenures. The Howard Coalition Government responded to Wik in alarmist terms, characterising it, not as a victory for coexistence and sharing the land, but as a "crisis in land management". Amendments to the Native Title Act were eventually passed in 1998, despite strong opposition from indigenous and many non-indigenous Australians.

The 1998 amendments have resulted in the further, unjustified extinguishment of native title and the winding back of significant Indigenous rights established through the negotiations over the original Native Title Act.

The 1998 amendments were referred to the United Nations Committee for the Elimination of Racial Discrimination (CERD) and found to be in breach of Australia's international human rights obligations. CERD has since twice reaffirmed its findings.

A discriminatory aspect of the Commonwealth's approach to native title which has received comparatively little consideration is the ongoing extinguishment of native title caused as a result of the deliberately inadequate resources provided to indigenous bodies charged with protecting native title.

Meanwhile, a number of important recent High Court and Federal Court decisions on native title claims continue to clarify the legal status of native title, particularly with respect to the issue of extinguishment.

2) Treaty: Negotiations towards a Treaty between indigenous and non-indigenous Australians are not taking place.

Australia is the only Commonwealth country that has never entered into a treaty with its indigenous peoples.

Indigenous people in Australia have repeatedly called for a negotiated and binding outcome or treaty between themselves and government to deal with the sovereignty issue, self-determination and other unaddressed aspects of the relationship. In 1988, the Labor Government agreed to negotiate a treaty or “makarrata” with indigenous people, but the initiative lapsed.

Indigenous leaders have once more called for treaty negotiations to entered into by the Federal Government. Two recent opinion polls suggest that public support for a treaty negotiations is growing. The polls followed a march across Sydney Harbour Bridge in support of reconciliation by an unprecedented 250,000 people. The Government, however, has flatly rejected the proposal for treaty talks.

3) The Stolen Generations: need for a national apology and a compensation/reparations tribunal

From the outset of non-Indigenous occupation of Australia, governments have carried out or sanctioned the removal of Aboriginal children from their families, particularly so-called 'half-cast' children. These 'stolen' children were raised in institutions or fostered out to white families. In most cases they were completely cut off from any contact with their families and culture, under policies of 'assimilation' intended to erase their Aboriginality. Many found themselves used as cheap labour or servants, or subject to abuse by the institutions charged with their care.

In May 1995 the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families was established. The Inquiry's final report, Bringing Them Home, concluded that in the period from 1910 to 1970, when the practice was at its peak, between 10 and 30 per cent of Indigenous children were forcibly removed from their families and communities. No family was unaffected. Yet the non-Indigenous community has been largely ignorant of this history and the trauma it caused. The needs of its victims and their families remained unaddressed.

The Inquiry undertook an extensive program of hearings throughout Australia and received 777 submissions from individuals and groups, including churches and governments.

A central recommendation of the Inquiry was the need for a national apology to those individuals and their families affected by past policies of removal. Members of the Stolen Generations have indicated that recognition by the Government that the policies were wrong would help in addressing the trauma and suffering that they have experienced. The need for a national apology is also regarded as an important component of the broader reconciliation process between indigenous and non-indigenous Australians.

Nevertheless, the current Prime Minister, John Howard, has refused outright to make such an apology, citing concern that such an action would unfairly imply the guilt and responsibility of present generations who were not involved in the carrying out of forcible removals.

However, the recommendation for a national apology specifically rejected such an imputation - a conclusion which has been widely endorsed by the many sectors of the Australian community which have embraced the opportunity to say "sorry". As Inquiry Commissioner and Bringing Them Home co-author, Mick Dodson observed:

Above all, the Government's refusal to apologise stands in sharp contrast to the plethora of formal apologies from Parliaments around Australia, churches, community groups, ethnic organisations, schools, local governments, unions, peak NGOs, and the thousands of individual Australians who have signed petitions, written letters and publicly declared their sorrow. Indeed these groups, and many individual Australians, have felt compelled to make it clear that they directly endorse the Commission's recommendation that there be a national apology.

The Bringing Them Home report also recommended the creation of a national compensation/reparations tribunal for those affected by the policies of forced separation, so that costly and traumatic court actions could be avoided. Recent high profile test cases, costing over $10 million, have failed in the courts on technical grounds. However, the Government has continued to refuse to consider setting up a tribunal.

4) Australia retreats from its international human rights obligations

Australia is a signatory to a number of international human rights instruments, including the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

These instruments set out international human rights standards to which signatories agree to be bound, and in relation to which they agree to undergo periodic scrutiny by a system of independent United Nations Committees.

Australia has recently found itself the subject of a series of adverse findings by a number of these committees, most notably the UN Human Rights Committee (UNHCR) and the Committee on the Elimination of Racial Discrimination (CERD) and the Committee on Economic, Social and Cultural Rights. The findings of these committees have included significant concern about Indigenous affairs policies and systemic discriminatory practices against Indigenous people.

International instruments such as CERD, ICCPR and ICESCR identify a number of fundamental standards in relation to Indigenous peoples, namely, the right to self-determination, the right to informed consent with respect to policies which affect indigenous peoples, and the right to a standard of substantive equality (ie, equal outcomes and not simply equal opportunities) with other citizens.

The recent adverse findings against Australia by UN Committees have identified substantial breaches in respect of all three of these standards.

In March 2000, the UN Committee on the Elimination of Racial Discrimination, which monitors the conduct of signatory countries, expressed its concern that, in the Commonwealth Government’s amendments to the Native Title Act, Australia was not acting in accordance with Convention’s Articles 2 and 5. The Committee gave emphasis to the need for substantive, and not merely formal, equality in the Commonwealth Government’s dealings with indigenous peoples.1)

The UN Committee cited many other issues of concern regarding Australia’s treatment of indigenous peoples and their rights. It began by pointing to the absence from Australian law of any entrenched guarantee against racial discrimination. Censure was directed at measures taken by the Howard Government since 1996: the discriminatory native title amendments, dramatic curtailment of the operations of ATSIC, the loss of confidence in the Reconciliation process, the absence of a formal national apology and compensation for the Stolen Generations, the rate of incarceration of indigenous people, the lack of indigenous interpreter services, mandatory sentencing and the dramatic disparities between indigenous and non-indigenous access to economic, social and cultural rights.

The Australian Government has reacted by rejecting the criticism outright as 'insulting', 'unbalanced' and as interfering with Australia's sovereign affairs. It further signaled a retreat from its international human rights obligations by calling a review of Australia's involvement in the UN treaty system and announcing a scaling back of its involvement and cooperation with UN Committees.

It has also defended its Indigenous affairs agenda, articulating a policy framework of what the Prime Minister terms "practical reconciliation" - measures focused on health, housing and education.

In the lead-up to Australia’s Centenary of Federation, the Australian Government's actions are ominously reminiscent of those of South Africa during the apartheid era. The Australian Government needs to acknowledge that international standards, including those of substantive equality, informed consent and self-determination, apply equally to Australia's Indigenous affairs policies as to those of other countries, such as Indonesia, Burma or Malaysia, which have attracted international criticism for more serious abuses of human rights.

Most importantly, international standards require the Commonwealth to commit to a genuine process of direct negotiations with Indigenous people to resolve the matters that continue to sour relations between indigenous and non-indigenous Australians.

ABOUT ANTaR

Australians for Native Title & Reconciliation (ANTaR) is a national network in support of the legitimate rights of the Aboriginal and Torres Strait Islander peoples of Australia. ANTaRs operate in every capital city in Australia and in more than 200 regional locations.

ANTaR is the largest non government organisation involved with Indigenous reconciliation and rights issues in Australia. ANTaR coordinates a major national community awareness and education campaign on native title and rights-based reconciliation.

There is a close working relationship between ANTaR and Indigenous representatives and communities.

In 1997, ANTaR created the Sea of Hands as the symbol of the Australian People’s Movement for Indigenous rights and reconciliation. There are currently almost 250,000 names on 120,000 beautiful coloured hands in the Sea of Hands. It is a tangible recognition of the failure of the Commonwealth Government to lead Australia in a genuine Reconciliation process. The Sea of Hands has been installed in every capital city and many regional locations.

Further information: www.antar.org.au

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Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1999, Report 1/2000 Human Rights and Equal Opportunity Commission, Sydney 1999, at page 27