Launch of the 2010 Social Justice and Native Title Reports

Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

Turner Hall, Sydney

Friday 11 February 2011

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With respect and gratitude I acknowledge that we sit on the lands of the Gadigal peoples of the Eora nation. Thank you to Michael West for your generous welcome to country for all of us.

My people are the Gangulu from the Dawson Valley in Central Queensland. Michael, on behalf of my Elders can I also salute your Elders, both past and present, for their continued struggle for their country and their culture here in Sydney.

I would also like to acknowledge my Aboriginal and Torres Strait Islander brothers, sisters, aunties and uncles who are here today; and thank you for your support; and I also acknowledge and thank my non-Indigenous friends for your ongoing support.

As most of you here today know, one of my statutory functions is to provide two reports each year to the Australian Parliament. The Social Justice Report reports to Parliament about the ability of Aboriginal and Torres Strait Islander peoples to access, exercise and enjoy their human rights. The Native Title Report discusses issues relevant to our lands, territories, resources and waters. Both Reports provide recommendations and advice to the Government to assist in improving the quality of life for the most vulnerable people in Australia, Aboriginal and Torres Strait Islander peoples.

But before I talk about what I have considered in this year’s Reports, let me first reflect on my experience up until now.

It is now just over a year since I have taken up this position. Over the past 12 months I have travelled extensively around Australia. I have met with Aboriginal and Torres Strait Islander communities in remote, regional and urban settings. I have heard many stories and witnessed many things that are heartbreaking and disturbing – particularly given that we live in one of the richest, successful democracies in the world. It is simply unacceptable that Australia’s first peoples are the most vulnerable of our healthy, prosperous nation. And I don’t need to take up people’s time reminding you of the statistics that we are all only too well aware.

But...I was also humbled by the many stories of resilience and hope. I witnessed our communities working hard to raise the bar and not accept the status quo. I also met with many non-Indigenous people and organisations who are behind us all the way – people who want to walk and work with us to improve the life chances for Aboriginal and Torres Strait Islander peoples across Australia.

The feeling that I carry around with me every day in this job, and I hope it comes through in my reports, is resolve.

Resolve to address the disadvantage still faced by Aboriginal and Torres Strait Islander peoples. Resolve to work to achieve a truly reconciled Australia.

However, as Social Justice Commissioner I only have a total of six staff. This means I need to channel my resolve strategically.

In November last year, I outlined my overarching priorities that I wanted to pursue during my time as Commissioner.

Firstly, I want to see the full implementation of the spirit and intent of the United Nations Declaration on the Rights of Indigenous People in all laws, policies and programs in Australia. And through this, the spirit and intent of the Declaration can be realised.

The Declaration reaffirms that Indigenous peoples are entitled to all human rights recognised in international law without discrimination. But it also acknowledges that without recognising the collective rights of Indigenous peoples and ensuring protection of our cultures, Indigenous peoples can never be truly free and equal.

The Declaration is also about creating new relationships between Indigenous peoples and government based on partnership, mutual respect and honesty.

In my view, in Australia, we can use the Declaration as a road map towards a reconciled nation.

So, while the Declaration guides our journey toward reconciliation it is the relationships we form along the way that actually get us to our destination.

This is why the other overarching priority I chose to pursue is to promote stronger and deeper relationships:

• Firstly, between Aboriginal and Torres Strait Islander peoples and the broader community.
• Secondly, between Aboriginal and Torres Strait Islander peoples and governments.
• And thirdly, within Aboriginal and Torres Strait Islander communities.

These priorities were informed in part by the many conversations I have had on my travels; and in part by my own experience over many years of involvement in the Indigenous policy environment. During this time, I have come to the conclusion that without positive relationships and rules of engagement about how those relationships are maintained and nurtured, the status quo will not change significantly.

So I am very pleased to be here today to launch my first Social Justice and Native Title Reports, that were tabled in the Australian Parliament by the Attorney-General, Robert McClelland yesterday. The Annual Social Justice and Native Title Reports are one of the instruments that I have available to me to progress the priorities I have set out for my term.

The Declaration on the Rights of Indigenous Peoples and the need to form positive, healthy relationships feature prominently and form key themes in both reports.

It is my strong view that in order to reset and strengthen relationships between Aboriginal and Torres Strait Islander peoples and the broader Australian community and Governments, there is work to be done in breaking down racism and the negative stereotypes and preconceptions that we have of each other. This needs to happen at an individual and community level but it is also about the big conversations we need to have as a nation.

In my Social Justice Report, I begin to explore a number of these big conversations, that I hope will commence a positive dialogue that will contribute to achieving a reconciled nation. These big conversations include:

• addressing racism faced by Aboriginal and Torres Strait Islander peoples at the individual and at the systemic level
• and advancing reconciliation between Aboriginal and Torres Strait Islander peoples and the broader Australian community through reforming our nations Constitution to formally include and recognise Australia’s first peoples.

I recently took part in a discussion panel on racism in sport at the United Nations in Geneva with representatives from the AFL - or as most of us know it - Aussie Rules.

In response to the very public expressions of racism on and off the playing field, the AFL has developed a ‘zero tolerance’ approach to racism across their sport and are national leaders in eradicating racism right across Australia.

The zero tolerance approach to racism has had a significantly positive result in that it has produced an over-representation of Aboriginal and Torres Strait Islander players in Aussie Rules. Eleven percent of all AFL players are Aboriginal or Torres Strait Islanders, from a national population of about three percent. This is an overrepresentation of which we should be rightfully proud.

You can trace the trajectory of this increase almost to the days when Michael Long and Nicky Winmar took their stand against the racism they suffered from their fellow team-mates, opposition players and spectators.

I often wonder if, say, we removed racism from the education system would our kids similarly achieve; that if we removed racism from the health system would all Aboriginal and Torres Strait Islander people similarly thrive.

And I wonder if such an approach can produce real change in behaviour and culture around Australia would Aboriginal and Torres Strait Islander peoples finally be respected for what we are; the first peoples of the Australian nation.

Again, that is why it is so important that we all get involved in the dialogue about Constitutional recognition as an opportunity to reconcile and grow as a nation.

In the Social Justice Report I discuss the need for Constitutional reform as part of our journey as a nation. I put forward some of the options for reform as well as a process of real consultation and ownership by the entire Australian community leading up to a referendum.

We will have a panel discussion on Constitution recognition a bit later this morning so I will keep my comments brief.

But what I do want to say is that Constitutional reform is not just about Aboriginal and Torres Strait Islander people. It is about the entire nation and a great opportunity to reframe and reset our relationships.

It’s been said to me that Australians are not ready for such an initiative – to change our Constitution to recognise Aboriginal and Torres Strait Islander peoples.

Maybe that’s true, and maybe I have more faith in the spirit and mateship of Australians than I should.

Certainly, we can’t underestimate the immensity of such a challenge. Only eight out of 44 referendums have been passed in Australia’s history.

 

But to those who doubt the importance of this journey on which we are all about to embark, I say this.

This process will give this generation of Australians the opportunity to say ‘yes’ to an issue that is relevant to each and every one of us - an opportunity to demonstrate goodwill and innate decency, just like 90% of Australians did in 1967 in recognising the need to include Aboriginal and Torres Strait Islander peoples in our nation’s population count for the first time.

 

This referendum will be an opportunity to further that historic outcome in 1967 to finally recognise that our country is made up of old and new Australians. And to recognise with pride the ancient histories and cultures of our unique nation that dates over 40 000 years prior to the arrival of the First Fleet.

Despite the overwhelming support for Aboriginal and Torres Strait Islander peoples in the 1967 Referendum, Noel Pearson argues that ‘what is still needed is a positive citizenship for indigenous Australians: a positive recognition of our status as the country's [first] peoples and yet sharing a common citizenship with all other Australians’.^[1]

By formally affirming our place in our nation, we all grow in stature.

Finally in the Social Justice Report, I present with pride and excitement, the story of a community who are defeating the odds, overcoming extreme dysfunction and disadvantage and determining their own futures. I look at the courageous steps that the communities in the Fitzroy Valley have taken to address the challenges that are common to many remote communities arising from alcohol abuse. Again I won’t talk for too long as you will hear from those involved directly about the experience in Fitzroy, but I think this is a clear example of what can be achieved from the agenda of hope I outline in my Reports. They are a testimony that anything is possible.

Let me paint you a picture. The Fitzroy Valley is in the stunningly beautiful, remote Kimberleys in Western Australia. It covers the traditional lands and waters of the Bunuba and the Gooniyandi peoples of the rivers and the ranges; the Walmajarri and the Wangkatjungka people who are the people of the great desert. These different language groups all live together in harmony in the Fitzroy Valley.

In 2007, a number of community leaders - among them, June Oscar, and Maureen Carter, who are here with us today, decided that something needed to be done about the increasing violence and dysfunction in their communities.

Alcohol abuse was rife, causing violence, depression and intergenerational harm. In 2007, there were 13 suicides over a 12 month period. If this rate of suicide was applied to a population the size of Perth, that would equate to 500 suicides a month.

The determination and leadership of a few key people within the Valley and the willingness of the community to change their destiny has resulted in a process over the last three years aimed at moving from a community in crisis to a community in control.

Firstly, they put in place community-led alcohol restrictions. This became a circuit breaker in addressing the damage caused by alcohol abuse.

Of course, a circuit breaker is not a silver bullet. But alcohol restrictions have given the community the time and space to create an innovative local governance structure aimed at overcoming the local challenges faced in the Fitzroy Valley, the Fitzroy Futures Forum.

The Forum allows Aboriginal people to identify their priorities for action and to be actively involved in the policy design process. This has led to better coordination of services and innovative, community owned research on the incidence of Foetal Alcohol Spectrum Disorders in the community.

The vision and determination of the Fitzroy Valley community has turned the place around. June and Maureen Emily will share some of their stories with you.

But what struck me when I was looking at the Fitzroy Futures Forum for the Social Justice Report is that it really reads as a ‘how-to manual’ for community led social change.

I am excited to see such positive results and possibilities. Rather than a coercive, top down approach to change and development, Fitzroy Futures is true community engagement and self-determination in practice.

The story of the Fitzroy Valley shows how strong local leadership, supported, rather than being dictated to by Government, can result in communities dealing with the most sensitive and intractable issues on their own terms.

The story of Fitzroy also demonstrates the importance of relationships between Aboriginal and Torres Strait Islander peoples and Governments. It is truly a story of hope.

Since the beginning of my term as Social Justice Commissioner I have been told time and again that the relationships between Aboriginal and Torres Strait Islander peoples and government in this country are not good. I believe that the relationship is currently characterised by a lack of trust on both sides. A lot of this mistrust has come out of the Northern Territory Intervention and the suspension of the RDA.

To rebuild this relationship we need to get serious about meaningful and effective engagement.

Governments have a duty to consult ‘whenever a [Government] decision may affect indigenous peoples in ways not felt by others in society’^[2]. This duty requires governments to consult effectively with us before adopting or implementing measures that may affect our rights.

However I am concerned that governments do not fully understand what this engagement looks like. That’s why in my Native Title Report I’ve spelt out in detail what meaningful and effective engagement can be. This is essential in the creation of stronger relationships between governments and Aboriginal and Torres Strait Islander peoples.

Governments need to listen to us and involve us if they are really serious about living up to any of their commitments to close the gap or implement the Declaration. Anything less is disingenuous and ultimately does not reflect our aspirations as a fair, just nation.

As such, the Declaration will also guide my priorities in the context of our rights to our lands, territories and resources. This year’s Native Title Report outlines the four broad themes in native title that I will focus on as Social Justice Commissioner. They are:

• Building an understanding of, and respect for, our rights to our lands, territories and resources throughout Australia.
• Creating a just and fair native system through law and policy reform.
• Promoting effective engagement between governments and Aboriginal and Torres Strait Islander peoples.
• Enhancing our capacity to realise our social, cultural and economic development aspirations.

In this, my first Native Title Report, I have paid particular attention to promoting effective engagement between Governments and Aboriginal and Torres Strait Islander peoples as a starting point.

In analysing the Governments attempts to consult and engage with Aboriginal and Torres Strait Islander communities, my aim is not to create a rigid consultation ‘checklist’. This would not be conducive to relationship-building or to effective consultation. Rather, I consider that the elements I set out in the Report can be used to guide the development of appropriate consultation processes on a case-by-case basis.

In the Report I have also analysed the Australian Government’s consultation processes in relation to the Native Title Amendment Bill 2009 and amendments to the Northern Territory National Emergency Response Act 2007. Unfortunately, neither of these processes lived up to true, meaningful engagement built on free, prior, informed consent.

If it is serious about developing relationships based on partnership and mutual respect, the Government must engage with us in a meaningful way before adopting or implementing matters that would affect our rights to our lands, territories and resources.

‘Meaningful and effective engagement’ and ‘free, prior and informed consent’ aren’t lofty principles – they translate into real, on the ground actions and attitudes that allow our peoples’ voices to be heard. They facilitate community ownership of the decisions made and the development of solutions. Importantly, they result in a negotiation rather than an imposed direction.

These principles become even more relevant and important, as agreement making is considered by Government to be a key approach to achieving outcomes from the native title system. This means that we have to get agreement making in the native title system right.

Done properly, agreement-making can be an expression of free, prior and informed consent and the beginning of strong relationships with governments and other parties. But unfortunately, as I document in my Native Title Report, Aboriginal and Torres Strait Islander peoples still face significant barriers to reaching just and equitable agreements. This includes inadequate financial resources and barriers embedded within native title law and policy, such as the onerous burden of proof.

To facilitate positive outcomes from agreement-making, governments need to take action to ensure the playing field is level.

In the Native Title Report I consider a number of initiatives advanced by the Australian Government which are designed to promote broader land settlements and improve the ability of Aboriginal and Torres Strait Islander peoples to enter into beneficial agreements. These include financial support to negotiate settlements at a state and territory level and proposed amendments to the Native Title Act to enable historical extinguishment to be disregarded in certain circumstances.

While it is arguable that these initiatives do not go far enough, in general I welcome the Australian Government’s attempts to reform the adversarial culture of the native title system.

However I have serious concerns that some Australian government initiatives will detract from agreement making. In the Native Title Report I look at an example of these concerns – what was at the time, the Australian Government’s proposed future act process which aims to facilitate the construction of public housing and infrastructure on Indigenous-held land. In the final stages of preparing my Report, the Government passed these reforms.

In the spirit of engagement I urge the government to listen to us and ensure that any future reforms to the system foster a level playing field for all parties and include us as major stakeholders in the decision-making process so that outcomes do make a real difference. And not just to the profits of companies and State Revenue, but to the lives of Aboriginal and Torres Strait Islander peoples whose lands and resources are being exploited.

Let me stress though, that the process for effective engagement that I have outlined in the Native Title Report doesn’t just apply to the native title system. It is the essential ingredient in any attempt to build positive relationships and result in policies, programs and legislation that improves the quality of life for us our families and our communities.

At the community level, the successes of Fitzroy Crossing highlighted in the Social Justice Report are testament to the power of effective engagement.

At the national level, I have been very clear in the Social Justice Report about just how important engagement will be in building support for Constitutional reform.

I’ve spoken about how humility, excitement and resolve motivate my work as Social Justice Commissioner. But there is an even stronger driving force behind my agenda and that is hope.

I see the resilience in our communities, the support in the broader community and the possibilities if governments truly engage with us. I can’t help but feel hope for what we can achieve together as a truly reconciled nation.

Finally as all of here know, these reports don’t just appear out of thin air. They are the product of the work of a dedicated committed team of people and the Social Justice Team in the Australian Human Rights Commission. To Katie Kiss and her team from the bottom of my heart I thank you all for the support and the efforts you have all put in to produce the two Reports.

So it is with great pleasure that I launch the Social Justice and Native Title Reports for 2010 and look forward to working together with you all to achieve the agenda of hope outlined within them.

Thank you.

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^[1] The Australian, Noel Pearson tells Julia Gillard: give us first vote, 26 January 2011, available at: http://www.theaustralian.com.au/national-affairs/pearson-tells-pm-give-us-first-vote/story-fn59niix-1225994541984 (viewed 27 January 2011).
^[2] J Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Report to the Human Rights Council, 12^th session, UN Doc A/HRC/12/34 (2009), paras 43–44.