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Launch of Social Justice Report 2005 and Native Title Report 2005

Museum of Sydney , 31 March 2006

Mr Tom Calma Aboriginal and Torres Strait Islander Social Justice Commissioner,

Human Rights and Equal Opportunity Commission (HREOC), www.humanrights.gov.au

 

I would like to begin by acknowledging the Gadigal peoples of the Eora nation, the traditional owners of the land where we meet.

Thank you to Charles Madden for your welcome to country.

Thank you for joining me here today to launch the Social Justice Report and Native Title Report for 2005. Both reports were tabled in the federal Parliament 6 weeks ago on 14 February 2006.

The Social Justice Report 2005 evaluates progress after twelve months of the new service delivery arrangements for Indigenous affairs at the federal level. It also sets out a campaign for achieving Aboriginal and Torres Strait Islander health equality within a generation.

The Native Title Report 2005 examines the Australian government’s proposal to encourage private ownership and leases of communal land under Indigenous title.

Since the reports were tabled in Parliament they have been widely distributed. About 40,000 copies of the community guide to the reports have been distributed through the two national indigenous newspapers and other sources. The community guide to the reports has also been launched at the Palmerston Indigenous village in Darwin.

Because of this distribution, I am not going to give you a blow by blow description of the contents of the reports. Instead, I am going to talk to what I see as the main challenges that the two reports raise for all of us – indigenous communities, service organisations, NGO’s and of course, government.

There is a central message that runs through both reports. It is a human rights message. But I would also contend that it is common sense and simply amounts to good policy.

That message is that as Indigenous peoples, we must be able to effectively participate in decision making that affects our lives.

This is not merely an aspiration or something that would be desirable – it is more than this. It is an essential element for successful Indigenous policy.

This requirement for effective participation is strongly supported in international human rights law. It relates variously to the rights to self-determination, non-discrimination and equality before the law, as well as to the right of cultural minorities to enjoy and practice their culture. It is also central for the effective enjoyment of economic, social and cultural rights – such as the right to the highest attainable standard of health and education.

The necessity to ensure the effective participation of Indigenous peoples also comes from practical experience. Much of the failure of service delivery to Indigenous people and communities, and the lack of sustainable outcomes, is a direct result of the failure to engage appropriately with Indigenous people and of the failure to support and build the capacity of indigenous communities. It is the result of a failure to develop priorities and programs in full participation with Indigenous communities.  

Put simply, governments risk failure if they develop and implement policies about indigenous issues without engaging with the intended recipients of those services. Bureaucrats and governments can have the best intentions in the world, but if their ideas have not been subject to the “reality test” of the life experience of the local Indigenous peoples who are intended to benefit from this, then government efforts will fail.

More importantly, if bureaucrats or governments believe that their ideas are more important or more relevant than those of local indigenous peoples, or that they can replicate policies that have worked in different contexts – such as functional or urbanised communities, or communities which have the necessary infrastructure and support mechanisms in place, then again, they will fail.

These are fairly basic points. But they are of such fundamental importance. And so often they are overlooked.

At the international level, principles relating to effective participation are gaining wide acceptance. United Nations agencies are guided by what is known as the Common Understanding of a Human-Rights Based Approach to Development Cooperation. This integrates policy and program development for human rights, development and poverty eradication. It proceeds on the basis that people are key actors in their own development, rather than simply being passive recipients of services. In other words, governments are there to serve communities, not the other way around.

Specifically in relation to Indigenous peoples, these requirements for participation have been expressed as the principle of free, prior and informed consent. My office has done some work with the Secretariat of the United Nations Permanent Forum on Indigenous Issues on this issue, when we co-hosted a workshop in Brisbane in August 2005 titled Engaging the marginalised.

The outcomes of this workshop will be presented to the Permanent Forum at its forthcoming 5 th session in May. They are also reflected in both the Social Justice and Native Title reports, and form a basis for the analysis of both the Shared Responsibility Agreement making process as well as the debate about leasing options on Aboriginal communal land.

You will find the full details about the free, prior and informed consent principles in the two reports. But in brief:

• Free requires no coercion, intimidation or manipulation;

• Prior requires that consent has been sought sufficiently in advance of any authorization 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; and

• 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.

The principle of free, prior and informed consent has recently received important international endorsement by the United Nations General Assembly. In adopting the Program of Action for the 2 nd International Decade of the World’s Indigenous People, five key objectives were agreed for the Decade. They include:

• Promoting the full and effective participation of indigenous peoples in decisions which directly or indirectly affect them, and to do so in accordance with the principle of free, prior and informed consent.

Relevant to the new arrangements, the objectives also include:

• Adopting targets (including concrete benchmarks) for improving the situation of indigenous peoples; and
• Developing strong monitoring mechanisms and enhanced accountability frameworks for the protection of indigenous peoples.

These are the challenges that exist for all governments in Australia.

What the two reports being launched today show is that there are some good instances where governments are beginning to address these challenges. The commitments and the right words are there in policy. But there are also many instances where this challenge is not being met. We have a long way to go for the rhetoric of government to be matched by action.

Crucially this action must be principled. That is, it must be based on acceptance of the central importance of Indigenous participation. At this stage, I can not describe the new arrangements as being a partnership with Indigenous peoples which proceeds on this principled basis at a consistent level. This is not to say that good things are not happening – for they are. But it is important for government to walk with Indigenous people and not run ahead and expect that they will catch up.

This Social Justice Report and its predecessor have provided a thorough overview of the new federal service delivery arrangements and have identified the challenges to ensure that the process is participatory and inclusive of Indigenous peoples.

I have received a lot of feedback that the reports provide excellent documentation on what the new arrangements actually are, and that it is being used by a number of public servants as a ‘bible’. This is good. But it also reflects one of the most basic problems of the new arrangements – a lack of information delivered down to the local level for both bureaucrats who are supposed to be implementing the new approach and most crucially for communities.

There remains a basic information gap. Information that is culturally appropriate and in a language and delivery format that Indigenous people can relate to is critical if we are to achieve engagement of indigenous peoples and ultimately, sustainable outcomes. This is the informed component of free, prior and informed consent.

The Social Justice Report focuses on four sets of issues relating to the new arrangements. These are:

• how it enables Indigenous representation at all levels of decision making;
• how it supports Indigenous participation through agreement making processes – which includes when it is appropriate to negotiate service delivery on the basis of mutual obligation principles;
• ensuring clear processes for government engagement with Indigenous peoples; and
• that there exist clear mechanisms for accountability and transparency of the new processes.

My conclusions on these issues may surprise some people. In particular, I find that if properly done, Shared Responsibility Agreements can provide a useful tool for realising the human rights of Indigenous peoples. When I say ‘properly done’, I mean that the process through which agreements are struck is on the basis of free, prior and informed consent; and that it is supportive of Indigenous communities and builds their capacity to engage with government. For agreements to be ‘properly done’ they must also not make the delivery of basic human rights subject to conditions, nor impose conditions on Indigenous peoples that are not applied to other citizens.

The report challenges government to build human rights standards into their process for SRAs.

But there is also a challenge for Indigenous communities. SRAs are an opportunity for you to realise community goals that you may otherwise not be able to achieve. The relationship with government that they create is also an opportunity to simplify lines of accountability to government. I say this as the government has often stated that a goal of the new processes is to move to longer term funding cycles with single agreements rather than the multitude of funding agreements that currently exist in communities. Comprehensive SRAs provide a mechanism for achieving this.

The challenge is for Indigenous communities to seize the commitments of government and make them work for you. Turn it into your process. The government should be reactive to your priorities and not the other way around.

What I provide in the report as well, however, is information to ensure that you are not coerced into the process and so you can understand what your basic rights are in this process. And this is the challenge for service delivery organisations, the NGO sector and HREOC. We need to provide support to communities so that they can effectively advocate for their rights in this process.

I have indicated in the report that a major focus of my office for the next report will be to monitor these agreements and the process by which they are struck, so we can learn from those communities who are succeeding. And you would be surprised – while there appears to be a general ban in national newspapers on indigenous success stories, I can assure you that they exist. And some of them exist in SRAs.

There is one other issue that I want to raise in relation to the new arrangements. It is about Indigenous participation and representative structures.

The first part of the report documents the processes that exist for Indigenous participation in the new arrangements. We are now coming on close to 2 years down the track of the new arrangements and there exist limited mechanisms for representative engagement of Indigenous peoples. This is at the international, national, state and regional level.

This is a serious problem. The absence of a framework for Indigenous representation at all levels of decision-making undermines and contradicts the aims of the new arrangements.

The report recommends that the federal Government, in partnership with state and territory governments, prioritises the negotiation of regional representative arrangements with Indigenous peoples. Representative bodies should be finalised and operational by 30 June 2006 in all Indigenous Coordination Centre regions.

That is my challenge to governments on this issue.

But there is also a challenge to indigenous people and communities. Representative structures can only work if they are in fact representative of the community. They must be owned by the community. They cannot be developed by government.

The challenge for communities is to clearly elaborate what regional structures you want and how you think they will work. Many structures have been proposed already, but not in all regions of Australia.

In saying this I am not letting government off the hook. I believe that the federal government in particular has been passive on this issue – they have too easily sat back and thrust responsibility for getting regional bodies in place back to indigenous communities. There are capacity issues with this, and there are also trust issues – we should remember that the abolition of ATSIC is recent and remains hurtful to many Indigenous people.

To me, the problem of the absence of processes for thorough indigenous engagement and participation is shown by the debate about reforms to land tenure arrangements on Indigenous communal land. This is the focus of the Native Title Report.

We have seen a debate about an issue of critical importance to Indigenous people – creating wealth and sustainable economic development and the role of indigenous communal land in achieving this. But this debate has happened without an eye to history and without applying the reality test on indigenous communal land.

We need to exercise great caution to ensure that options for individual leasing do not result in the very opposite of what the policy debate seeks to achieve. It is possible that leasing could lead to entrenching poverty traps for Indigenous people by creating unsustainable debt levels, with the outcome that communal title is compromised or lost. This is the experience overseas in the USA, Canada and New Zealand, and was a policy failure of the World Bank in the 1970s.

The Native Title Report sets out challenges for governments in progressing the individual leasing proposal, and in promoting economic development for Indigenous peoples.

The first, and most basic, is ensuring that Indigenous peoples are able to provide their free, prior and informed consent to any leasing proposal. This includes full information of the likely impacts – including the obligations of being a homeowner, maintenance issues, financial issues and so on. Leasing may work for some individuals and communities – but it is a high risk strategy and this needs to be acknowledged and addressed.

Other challenges include that:

• We build on existing success using examples of Indigenous business development and use these as models for other business development projects;
• Governments commit to develop infrastructure to support business enterprise and service provision on Indigenous land; and
• We focus on issues of financial literacy among indigenous communities, particularly in remote locations.

To conclude, I want to return to the Social Justice Report. When I talk of challenges, there is another major challenge that I have laid out in this report. It is a challenge to all Australian governments to commit to achieving Aboriginal and Torres Strait Islander health equality within a generation.

You will hear more of this proposal during the next twelve months. I have met with numerous organisations in the indigenous health, general health and NGO sectors about this commitment. It has received enthusiastic and unanimous support from bodies as diverse as the Australian Medical Association, Australian Divisions of General Practice and Royal College of Physicians, through to the National Aboriginal Community Controlled Health Organisation and all of the Aboriginal Medical Services who are members therein, as well as ANTAR, OXFAM, The Ian Thorpe Fountain for Youth, Fred Hollows Foundation, and numerous other organisations, including the Australian Indigenous Doctor’s Association whom Romlie represents.

Ultimately, achieving equality for Indigenous peoples in life expectancy rates within 25 years is an achievable goal. If we are a nation that believes in fairness and dignity for all, then we will not hesitate to commit to this goal and do so in a specific, targeted way.

That is what has been missing – there are many great successes in indigenous health, and some of the world’s best frameworks and reporting indicators for measuring it. But we have not committed in a holistic and targeted way to make it happen.

Indigenous health equality will not happen without deliberate targeted steps. We know this – the last 20 years of action proves this. The report sets out sub-targets of ensuring equal access to primary health care and health infrastructure within ten years. It also challenges governments to incorporate health perspectives into the new whole of government approaches that they are adopting.

In my view, we have in place the building blocks to achieve health equality. We have a unique opportunity to achieve this. We must grab it.

There was an interesting forum held earlier this year called THE Australian Future Direction Forum. About 100 people aged up to 40 were chosen on the basis of their likely leadership role in Australia in the next twenty years and they were asked to set out a blueprint for Australia’s future. I want to read to you the statement that they endorsed about Indigenous health and disadvantage generally. It is very striking and inspiring. It reads:

We declare that the ending of Aboriginal and Torres Strait Islander peoples (Indigenous) disadvantage is the number 1 priority of the 2006 Australian Future Directions Forum. We stand diminished as a nation unless we act immediately and decisively to address the marginalization of Indigenous people across all areas of life. This is not only desirable, it is achievable. It would be outrageous for this level of alienation and disparity to continue into the next decade. As future leaders we are determined to take all efforts to address this legacy.

We will do this because it is right. The manifest disadvantage of Indigenous people is intolerable. By doing nothing we stand to witness the irreversible loss of the most ancient cultures in the world…

There has been considerable detailed work done on the solutions to Indigenous disadvantage and for the recognition of Indigenous culture so we can be confident, that with refinement, the elements for success exist. The focus then must be on commitment, priority and action.

This is a challenge to all Australians. It is not simply up to governments.

Let me give you an example. In a recent meeting with the Australian Division of General Practice, their CEO asked me the following question. She said, when the tsunami wreaked its terrible damage across Asia there were over 4000 health professionals who pledged their support and volunteered their time. Yet there are perhaps 4 people who have volunteered their time to work with Indigenous communities who are experiencing conditions which are equally severe.

Why?

Governments need to be accountable for the achievement of health outcomes to Indigenous people. At present, they are not sufficiently so.

But there is also a role for NGOs, for the medical profession, for the sport sector, for business, philanthropists and the general community.

Throughout the year I will be calling on all sectors of Australian society to express their support for commitments to achieving Indigenous health equality within a generation. The challenge is set out in the Social Justice Report and I commend that to you.

So to conclude. My intention today is to challenge you and to inspire you.

We are all working for the same thing – equality, dignity and for Indigenous people to enjoy everything that the rest of Australian society takes for granted.

We can achieve this. And I will continue to challenge all of you, and particularly governments, as we move down that road.

Thank you