Site navigation

'Indigenous environmental health and health equality' 

Tom Calma

Aboriginal and Torres Strait Islander Social Justice Commissioner and A/Race Discrimination Commissioner,

Human Rights and Equal Opportunity Commission

Keynote speech at the 6th National Aboriginal and Torres Strait Islander Environmental Health Conference in Cairns, May 2007.

Senator Scullion, distinguished guests and participants, can I begin by paying my acknowledgement to the Irukandjii Peoples, the traditional owners of the land on which we are meeting and pay my respects to their elders.  I would also like to thank the National Indigenous Environmental Health Forum, the conference organising group and Queensland Health for organising this event and for inviting me to address you.  And thank you to Shane for his opening words and introduction.

For those who don’t know in July 2004, I took up my five year appointment as Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights and Equal Opportunity Commission.  This was role was created in 1992 to provide an ongoing monitoring agency for the human rights recognition of Indigenous Australians. Now I am conscious of the relatively short period of time I have here today, so of the various functions that I do I would like to highlight that I am required to report annually to the Federal Parliament on the status, enjoyment and exercise of human rights by Indigenous Australians, and this is called the Social Justice Report. I also produce a native title report which covers a lot of the issues to do with, or on Aboriginal land - both native title and other Indigenous land issues such as economic development and so forth.  And with that comes a lot of the EH issues.

I was pleased to be offered the chance to address this conference as it gives Indigenous EHWs and others at the coal face of Indigenous communities, a forum for your voices to be heard, and from which to influence policy and decision making that touches on the vital issues of EH.  Forums such as this one should not be taken for granted in the current post ATSIC Indigenous affairs era.  After four years of tracking these new arrangements through the Social Justice Report, to me there has been no more apparent flaw in the way things are organised now than in relation to the processes for engagement, or more accurately the absence of these processes, with Indigenous peoples at both the national and regional levels but increasingly at the community level.

Since ATSIC has been dismantled, government has consistently emphasised that engagement with Indigenous peoples is a central requirement for the sustainability of the new arrangements.  And yet there has been little progress to ensure that appropriate forums and mechanisms exist to facilitate this.  Policy is being developed in a vacuum at the national level, with no connection to Indigenous experiences at the local and regional levels, and where applying what I call “the reality test” that comes with Indigenous participation and local engagement.

So I acknowledge you, the participants of this forum, not only for the vital work that you do in communities, but also your commitment to keeping this channel for engagement open.  My acknowledgement also goes to the Federal and various State health departments and the enHealth Council for maintaining their commitment to the Forum over the many years that it has been going, and for publishing the excellent reports from these conferences, which are a valuable resource for anybody interested in, or working in, Indigenous EH or Indigenous health generally.

Indigenous health has been a major focus of my time as the Aboriginal and Torres Strait Islander Social Justice Commissioner.  Many of you may know in the 2005 Social Report I recommended to the Australian Government that they commit to a campaign to achieving equality of health status and life expectation between Aboriginal and Torres Strait Islander and non-Indigenous people within 25 years.And further, that this overall commitment be supported by all governments of Australia commit to achieving equality of access to primary health care and health infrastructure within 10 years for Aboriginal and Torres Strait Islander peoples, irrespective if we live in urban or remote areas.

And it is this health infrastructure aspect of my recommendation that I would like to focus on this today.  I am pleased to tell you there has been a tremendous positive response to recommendations of the report.  A coalition of over 40 Indigenous and non-Indigenous organisations (all the major peak health organisations) have begun working in partnership to progress a rights based approach to Indigenous health by Australian governments.  The health campaign is built around the right to health which is of direct relevance to the health inequality Indigenous people suffer in Australia today.  Hence the policy environment within which Indigenous EHWs operate in.  So I thought it may be useful to hear what the right to health is and how it may touch on your work and the recommendations that you feed from this conference, so that it may be taken into consideration as it feeds up the chain so to speak.

So what is the right to health?  Well it is found in Article 12 of the International Covenant on Economic, Social and Cultural Rights.  The Australian Government ratified, which means they signed onto, this treaty in 1966 and it applies to all Australians (not just Indigenous Australians). The right to health is not about abstract rights to be healthy.  No state can guarantee the health of its citizens in an absolute sense against the forces of old age, personal choice and so on.  What the right to health does say however is that the State, meaning Australia, and all the governments of Australia has an obligation to provide opportunities for all its citizens to be as healthy as possible.  What this means in practice is that the Australian Government provides or ensures two things.

The first is directly relevant to your work and what is called health infrastructure that lays the foundations for good health.  Safe drinking water, hygienic conditions with sewerage and garbage safely disposed of, healthy housing and the supply of healthy food.  The right to health requires that these things are both established and effectively maintained at a standard that supports good health.  The second are health goods and services, and in particular primary health care services.  Now I won’t be speaking on this part of the right to health today, apart from noting that it obviously covers a vital part of any overall approach to Indigenous health, and you can read more about this if you have a look at my Social Justice Report, and in fact I will soon be releasing a publication which extracts Chapter 2 of the 2005 Report, which will become a good reference guide for everybody working in the health industry.

Further the right to health obliges the State to ensure that everybody regardless of sex, race, age, sexuality and so on, has an equal opportunity to be healthy.  For health infrastructure this means that communities across Australia whether Indigenous or non-Indigenous should enjoy a similar healthy standard of drinking water, can access fresh vegetables, fruits and meat, and have their sewerage and garbage removed.  It also means that they enjoy from a health perspective the same standard of housing that is in good repair with functioning sanitation and not overcrowded.

Now we all know that despite some areas where real improvements have occurred, particularly the water supplies in many communities, Indigenous peoples do not enjoy the same equality. And I am not going to list off the well known statistics that highlight the glaring inequalities particularly in relation to housing stock in terms of its condition, and that it is often far too overcrowded and the impacts that it has on sanitation and so on.  They are covered in my 2006 Social Justice Report.  Now I am sure this is something that everybody here would have had some direct experience in either observing or working in with.

A key component of the right to health is planning and the right to health requires that if gross inequalities exist there should be a plan to reach equality as soon as possible.  And this is the first point I want to make about the poor standard of health infrastructure in communities.  There is no overall plan for specifically addressing this. Programs such as the Indigenous component of the National Environmental Health Strategy, the Dog Strategy that Senator Scullion will be launching today, the Eat Well Australia Strategy as well as the Building a Better Future Strategy and programs such as Community Housing and Infrastructure Program (CHIP), which is soon to be replaced by the new Australian Remote Indigenous Accommodation Program are to be welcome. But there can be more.

Let me also clarify that I am not supporting the government for closing the housing associations but I am supporting the CHIP program.  But there is still a need for a comprehensive intersectoral and intergovernmental approach that aims to coordinate all these strategies into an overall plan, which is clearly stated, time limited, with goals for securing Indigenous communities in relation to their health infrastructure.  As noted in my Social Justice Report I have recommended that this goal be set within a time limit of ten years.

I note that there is a National Indigenous EH House Strategy under development by the EH Forum following a recommendation made at the Fifth National Conference.  I congratulate the conference for making this recommendation.  I am pleased to hear that the National Indigenous EH House Strategy aims to be as holistically as possible in relation to Indigenous EH, and that it looks to integrating as many of these strategies into something approaching what I am suggesting here.  However what I am talking about here is in a sense beyond the Forum to initiate.  It is ultimately dependent on an agreement at the level of Australian Health Ministers Conference and the Health Ministers need to take this responsibility on board.

So why do I link such plans to time limits?  It is because according to the right to health, governments have an obligation to take steps to progressively achieve the full realisation of rights like the right to health, and to do so without delay.  Steps must be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognised in the covenant.  Such an approach also uses benchmarks that should be specific, time bound, and verifiable.  Set with a participation of people whose rights are affected, to agree on an adequate rate of progress and prevent the targets from being too slow and reassessed independently at their target date with accountability for performance.  And this links to my second point, that a National Health Infrastructure strategy aside, there is a failure to set targets and benchmarks even within existing sub-strategies.  Housing, sanitation, food supplies and so.  Certainly beyond broad brush goals of equality and EH justice, there are no clear targets in the National EH Strategy, Eat Well Australia or Building a Better Future.

Without such benchmarks Australian governments are simply not accountable for progress or lack of progress because there is nothing to measure their commitment against.  And as I have advocated such benchmarks and targets should be based on the indicators set out in the Overcoming Indigenous Disadvantaged framework and the Aboriginal and Torres Strait Islander Health Performance Framework.  Targets and benchmarks also help ensure that resources needed are devoted to the task.  And there is no excuse for the shortfalls we have seen year after year in state and federal budgets.  And there have been enormous surpluses. And the recent one that the Federal Government announced was a surplus of over $10 billion dollars, yet the Australian government has not chosen to use this surplus to end the health crises faced by 3% of its citizens.

And finally this takes me back to my earlier comments.  It is vital Indigenous people participate in and are engaged in the planning and delivery of services that affect them, particularly in planning including the setting of targets and benchmarks.  Now this requirement is more than just a nicety.  It is the backbone of human international rights law.   It relates to the rights of self determination, non-discrimination and equality before the law as well as to the right of cultural minorities to enjoy and practice their culture.  But necessity also comes from practical experience.  Bureaucrats and governments can have the best intentions of the world but if their ideas have not been subjected to the reality test of the life experience of local Indigenous peoples who are intended to benefit from those programs, then government efforts will fail.

Specifically in relation to Indigenous peoples, these requirements for participation have been expressed as the principles of free, prior and informed consent.  In brief, free requires no coercion, intimidation or manipulation.  Prior requires that consent has been sought sufficiently in advance of any authorisation or commencement of activities, and respects time requirements of Indigenous consultation and consensus building processes.  Informed requires that information is provided that addresses the purpose, scope, obligations and impact of any proposed activity. Consent requires that consultations be undertaken in good faith; on a basis of mutual respect; and with full and equitable participation. It also requires that Indigenous peoples can participate through their own freely chosen representatives and customary or other institutions, and ultimately it must allow the option for Indigenous people to withhold their consent.

In relation to this point it seems what we are seeing at best with the winding back the potential for Indigenous participation.  For example the Federal government’s decision to abolish CHIP and replace it with the Australian Remote Indigenous Accommodation Program looks like an attempt to lock Indigenous people out of planning and the management of their own lives and communities by cutting out communal ownership and getting control of Aboriginal housing.

The recent agreement with the Tiwi People is also of concern.  Now you may have heard that the Tiwi people have bowed to Federal government’s wishes and signed an MOU to give away their right to control their coastal township of Nguiu by granting the government a 99 years head lease over Nguiu.  In other words they will only have a limited say of what can occur on their land. In return they will get $5M cash, $1M worth of health services, over $13M towards a new school, and repairs to an existing school and some repairs to recreation areas.  Now I respect the rights of the Tiwi peoples to enter such agreements if they are conducted according to the principles of free, prior and informed consent.  However I visited the island in January this year and asked the community meeting of over 150 people whether they understood the 99 years lease proposal.  Only one person said that they did.  And yet the Federal Government has rushed this plan through in only three months.

However there is another thing from a human rights perspective that is wrong with this agreement.  The provision of health services, schools and so on are rights - no one should have to trade their land for these rights.  Both these concerns are relevant to the making of Shared Responsibility Agreements (SRAs).  Now I am sure that many of you are aware or may have even been involved with the making of such agreements.  SRAs provide a significant opportunity to advance infrastructure provisions and management within communities, and many have proven of benefit to the communities.  Such as the no pool no school.  SRAs for example are entirely appropriate. 

My first point is that SRAs must be negotiated according to the free, prior and informed consent principles.  And second there are limits to when they should be used.  As I noted in last year’s Social Justice Report, SRAs or indeed any other bargaining process, should not be used to negotiate the delivery of basic rights. And this includes health infrastructure including essential infrastructure provisions such as water supply, sanitation and sewerage. It is of concern if such services are provided on the basis of mutual obligation.  Governments remain under an obligation to ensure equal enjoyment of rights and to take steps to ensure such equal enjoyment at all times.  Accordingly programs and services cannot be withdrawn or not offered in the future to a community if a SRA or any other form of agreement does not achieve its stated goals. Governments must also ensure that they provide the core minimum of entitlement of rights at all times.  The following are examples of core minimum obligations that would not be appropriate for inclusion with SRAs or any other such agreements: 

• Access to the essential minimum amounts of water.  That is efficient and safe for personal and domestic use to prevent disease. 
• Physical access to water facilities and services that provide sufficient safe and regular water. 
• Measures to treat and prevent diseases linked to water, in particular ensuring access to adequate sanitation. 
• The minimum essential food which is nutritional, adequate and safe to ensure freedom from hunger for everyone, and 
• Basic shelter, housing and sanitation, and essential medications and medicinal drugs.

Now that doesn’t mean that SRAs have no place in some aspects of these things but you have to look at the detail to work out if the SRA is acceptable from a human rights perspective.  A SRA or another form of an agreement would be appropriate where it promotes education and understanding about the provision of infrastructure services.  So for example it would be appropriate to enter into agreements to ensure that there is appropriate education concerning the hygienic use of water, protection of water sources, and methods to minimise water wastage.  Or taking positive measures to enable and assist individuals and communities to enjoy the right to health, including disseminating appropriate information relating to health, healthy lifestyles and nutrition, and supporting people in making informed choices about their health.

Guidelines for making SRAs according to the human rights based framework and principles are set out in the Social Justice Report for 2005.  And I would recommend that you look at these, particularly if the communities that you are working in are considering entering into an SRA, to address some of the EH or health infrastructure issues.  Because I believe they can be better used and we should all be looking at using the maximum of programs and benefits available to communities. 

Now with the time available to me I have tried to cover some of the key considerations of a rights based approach as it applies to EH health for Indigenous peoples.  In short we need to plan.  Closing the life expectancy gap of 17 years between Indigenous and non-Indigenous peoples in Australia will not happen without a significant focus on the provision of health infrastructure that supports good health.  This is not enjoyed equally by all Indigenous peoples at present and there is no plan for when this lack of equality of opportunity will be provided.  It will take time to reach a situation of such equality.  But it will only happen with determined action and commitments from across society and from all governments working together. And it requires Indigenous leadership and participation to make sure that decisions and resources are appropriate and targeted to the areas of greatest need.

Governments cannot do it alone.  They should not dictate how services are to be delivered.  If they do the successes will be short lived and not sustainable.  The Government’s role should be to assist us through listening, funding, and guidance to develop our capacity to enable to us to take control of our lives and our futures. 

This is the least that we can expect in the 40th anniversary year when the Australian population voted overwhelming for Indigenous people to be treated equitably.  So again, thank you for the invitation to address the conference.  I wish you well in your discussions in identifying some of the pathways forward and I look forward to any questions you might have, but more importantly to see what recommendations come out of this conference.  Thank you.”

Questions:

Q1. Tom of Wujal Wujal “As the Human Rights Commissioner can I ask your opinion on the push for the disbanding of Aboriginal Community Councils and their amalgamation of shire councils?”

A1. Mr Calma “There are two aspects to that question.  One is the approach taken by all the mainstream councils and their constituents, and their concerns about the amalgamation.  I think governments need to listen to people in relation to that.  I think there are some specific issues that relate to us and our communities, the DOGIT communities that recently became shires.  The whole process for me is just ridiculously short – the conversion from DOGIT communities to shire communities hasn’t’ even settled.  Most communities are just trying to come to grips with that and now we have a new set of arrangements that will have potentially a very detrimental impact on Indigenous communities and Indigenous peoples.  It may also have some good impacts in relation to the utilisation of resources and so forth.  But what we will have to think about is on some of those communities, what will happen when a major shire takes control of them, what sort of representation does the existing Indigenous Council have on the larger shire (that’s one key issues), and the other one is what is to guarantee services will be provided to community?  There will be a fairly significant cost impost I imagine, because if some of our remote communities have to pay the rates that exist in the larger shires, how has that been discussed?  How is that going to impact on low income Indigenous peoples?  That financial aspect of it hasn’t been considered.  And the other is what safeguards are in place to ensure Indigenous land lots are not taken over and controlled or sold by larger shires, which have under their current arrangements the capacity to subdivide and sell land, and they can do that.  Which is fine if they do that in their shires but should that happen to Indigenous communities?

Q2. Paul Endres (Cairns):

Just a comment Tom.  You have thrown out a few challenges in your address this morning and we hope to take up in our planning efforts.  I am not sure you have the opportunity to have the time to see any of the presentations today as I know you are a busy man, but I think you will be pleasantly surprised of some of the reports you will hear today and of the work that’s being done in this country and in this area.  Certainly in our role of planning with the National Environmental Health Strategy we will certainly incorporate your comments, and we already have, using your previous report.  So it’s a pleasure to hear what you have to say today.

A2. Tom Calma:

I fully acknowledge that and the key issue for me is how we ensure other activities in the community are coordinated and synergised so that we do see a way forward.  For me that seems to be the biggest shortfall in communities at the moment; is that lack of planning and that long term strategic planning from town planners’ right through to all the various service infrastructure.  To suggest that will all happen over night if somebody owns their home is only part of the solution.  There’s a lot more to it than that.  We all need to work collectively and cooperatively and that is the whole issue.  If we go back to what existed prior to the abolition of ATSIC, for good or bad, and I think the opinion differs, but ATSIC Regional Councils were working towards establishing regional plans in a very collaborative process in the communities.  That has generally been thrown out and now we are starting afresh again and from what I hear from a lot of Indigenous peoples is why do we go telling another lot of people what we want when noone every listens?  So that’s the key message in planning and engagement.

Q3. John Wayne, West Australian Local Government Association:

Tom, I was interested to hear your comments regarding local government.  West Australia as you know has huge expanses of land between Indigenous communities and local governments, especially the more remote Indigenous communities.  Ngaanyatjarraku is our only Indigenous Shire Council and hopefully with some more to follow.  In regards to local govt how do you see a way forward to get more financial assistance for local govt regarding provision of services to remote Indigenous communities especially where they are particularly remote and I think of communities like Jigalong which is some 850 km distance away from their local government in the Pilbara shire.  How do you see a forward with this?

A3. Tom Calma:

That’s a very important question for a number of reasons.  One is firstly the Feds have got a responsibility and in fact they have made some announcements that they are putting more money into shires and into local government areas around Australia from infrastructure to major infrastructure by the way of roads and that level of investment.  It is a key question and I think this is a question the government is grappling with in relation to homelands or outstations, which is how do you fund those and how do you fund the bigger communities?  And that’s the problem I see.  At the moment there are a whole range of bureaucrats and maybe Ministers all thinking they know the solutions or different approaches forward, but no one is engaging with the Indigenous residents? 

What we have to do is consider the impact of all of these, and the key way forward. As you know local governments get their funding in part through rates they are able to generate rather than only through federal or state funding to get their money,.  A lot of us don’t know what questions to ask.  So you rely on people to inform you.  And once we start to look at things like home ownership, the cost of rates, the cost maintenance, all things people weren’t having to pay when renting; the cost of insurance, just mortgage insurance will be very significant because everyone says an Indigenous home lasts 10-15 years so what company would insure it for a low premium?  You can bet your bottom dollar the premium for mortgage protection and insurance is going to be high when it happens.  The thing that irks me most in relation to Tiwi is the suggestion that after 10-15 years all rates that are earned from land, with the exception of operational costs of the entity, will go to the traditional owners. Well firstly we haven’t defined how much of those rates will the on-costs be, and secondly if all the traditional owners getting all the money through rates, what is the shire council going to survive off?  How are the roads going to be built so that becomes again the responsibility of maybe the State or Federal government?  Who knows?  Otherwise we see degradation of those communities.

So there are a lot of issues that I believe that, and I have talked to Nigel and others about these, that we really need to consider to ensure people are able to make a really informed decision.  And I am not against homeownership, I am not against economic development, but it needs to happen within a person’s own frame of reference.  ,As a home myself, and all of you who are home owners, know the costs, and it is not cheap .  And they will be in addition to current outlays.  And we know on communities the issues that you face all the time; people can’t get access to good food because it is too expensive. So if your home costs are going to increase what money are you going to have to really on to buy the good food and to address these health issues, so we need to look at this holistically and we have to look at it from the many different agencies approaches to it.

For further information

Tom Calma

Aboriginal & Torres Strait Islander Social Justice Commissioner and A/Race Discrimination Commissioner, Human Rights and Equal Opportunity Commission

Ph:02 9284 9603

Email: tomcalma@humanrights.gov.au

Homepage: www.humanrights.gov.au/ social_justice/index.html