Social Justice and Native Title Report 2014 Launch
Aboriginal and Torres Strait Islander Social Justice
Social Justice and Native Title Report 2014 Launch
Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission
Friday 5 December 2014
The Australian Human Rights Commission
**Check against delivery**
Acknowledgements
Madam President, thank you for your kind introduction and thank you for hosting this event, the launch of the 2014 Social Justice and Native Title Report.
Aunty Norma, thank you for your warm acknowledgement of country this morning and can I too acknowledge the Gadigal People of the Eora Nation, the traditional owners of the place where we gather. Aunty Norma can I also acknowledge your people, the Wiradjuri and salute all Elders, both Indigenous and non-Indigenous, who are here today, those that have gone before us, and those who are yet to come.
I bring you salutations and greetings from my people in Central Queensland, the Gangulu of the Dawson Valley and in doing this can I also acknowledge my cousins, Immanuel and Sarah.
I acknowledge the members of the Gunditjmara and Ngarrindjeri peoples here with us today. They have been working with the Indigenous Nation Building Collaboration and I thank them for allowing us to include their stories in this year’s report.
I thank Dr Mark McMillian who will be speaking today on the importance of nation building. Mark and his team have done remarkable research in this developing field and I am grateful for their contribution to this year’s report.
I thank the Collard family and their lawyer, Jon Crabtree, for working with my team to allow us to share their story in the report. I am happy that Glenys Collard is able to be here with us today.
To my fellow Commissioners and Commission staff, thank you for your support, together we advocate for human rights for all Australians and I am proud to call you friends in these endeavours.
I am ever grateful to those who have paved the way before me in this role - Professor Mick Dodson, Ms Zita Antonios, Dr Bill Jonas and Dr Tom Calma – and I acknowledge their dedication, vision and commitment.
Finally, I would also like to acknowledge all of you who join us today for this occasion.
I stand here today approaching five years as Aboriginal and Torres Strait Islander Social Justice Commissioner. On occasions such as this, it is easy to be melancholy, given the wide variety of human rights challenges facing Aboriginal and Torres Strait Islander people I have witnessed up close in those five years.
But it is just as easy for me to be positive, because I also see some of the great achievements of our mob. Last week I was in Canberra at the Indigenous Allied Health Australia’s annual dinner, where I saw many of our young people studying or graduating to become dentists, physiotherapists, pharmacists and social workers.
It’s hard not to feel anything but pride for a young Kaurna woman who, upon completing her degree in physiotherapy, is now studying to become a doctor at the Australian National University. Similarly, how fantastic is it that over 200 Aboriginal and Torres Strait Islander people have now been awarded their PhDs, having reached the highest level of learning in the Western system.
I am also heartened with progress on national efforts to close the gap of life expectancy and health inequality between Aboriginal and Torres Strait Islander people and non-Indigenous Australians.
The positive developments in the Close the Gap campaign – in decreased smoking rates, improvements in maternal and child health, dropping child mortality rates and a narrowing literacy gap - are extremely promising and show that we are making headway, albeit on a long term path to change.[1]
At the other end of the spectrum we are seeing our kids unable to read and write because of things like foetal alcohol spectrum disorder, and our women, men and youth being incarcerated at epidemic proportions. The terrible conditions in our communities produce more dysfunction, more negative mental health outcomes that, as the latest Overcoming Indigenous Disadvantage report tells us, leads to more and more Aboriginal and Torres Strait Islander people seeing self-harm and checking out altogether as their only available options.[2]
This is the fundamental dichotomy we wrestle with in this world of Aboriginal and Torres Strait Islander affairs.
How do we as a society ensure those who are the most vulnerable are the focus of our attention and efforts, whilst still continuing to support those already on the pathway out of poverty?
Are we allowed to celebrate our successes but at the same time agitate for those, by circumstances into which they are born, continue to struggle?
While we have a long way to go, we have also come far on this journey to healing our nation and achieving social justice for our peoples.
I believe we can rejoice in the long history of advocacy and agitation for our peoples and for their rights to be recognised by Australian Governments and the Australian population.
I am encouraged by the work being done by our communities, our leaders, our non-profit sector, our businesses and our governments.
However, it is not okay that in 2014, Aboriginal and Torres Strait Islander peoples, of all Australians, are the most vulnerable, the least healthy,[3] the most imprisoned,[4] the most likely to die in prison,[5] the most at risk of child abuse or neglect,[6] the most likely to be homeless,[7] the least likely to be educated[8] or employed,[9] or the most at risk of domestic violence.[10]
It is not okay that our communities’ views are ignored in decisions that affect their lives and their land. It is not okay that our communities are not equal partners in the decisions made to better improve their own lives.
It is not okay that our peoples are not the recognised custodians of, and remain separated from, our land.
And it is not okay that racism still defines many Aboriginal and Torres Strait Islander people’s daily lives.
The responsibility to grapple with these challenges must be owned by all of us. That is, by Aboriginal and Torres Strait Islander communities, by the Australian public, and by our businesses and governments.
With a clear vision, targets and accountability, this is not a fantasy or an unrealistic dream. Together, we can - and we must - achieve social justice and equality for Aboriginal and Torres Strait Islander peoples.
Friends, I proudly present to you the 2014 Social Justice and Native Title Report.
Five years ago I stood here launching my first reports and said that creating change in the area of social justice for us comes back to looking after and nurturing our relationships.
That is, stronger, deeper and meaningful relationships between:
- our peoples and non-Indigenous Australians
- our peoples and all levels of government, and
- amongst ourselves and our own communities as Aboriginal and Torres Strait Islander peoples.
At that time I said we must build relationships that are founded in mutually corresponding rights and responsibilities, on understanding, dialogue, tolerance, acceptance, respect and trust.
Through that lens, this year’s report looks at a vast range of issues and developments, including those at home in relation to the rights of Aboriginal and Torres Strait Islander peoples and native title, as well as certain international developments.
Time does not permit me to go into the minutiae of every aspect of the report, but I will highlight some particular points this morning.
Since the tabling of the report last Thursday, I have spoken extensively about what I am calling the ‘muddled narrative’ of the Australian Government’s approach.
About how we are now experiencing one of the largest ‘upheavals’ of Indigenous Affairs and how this upheaval is causing immense anxiety and stress amongst our communities.
About how over 150 programs and activities have been transferred to the Department of Prime Minister and Cabinet, involving over 1,400 organisation with nearly 3,040 grant and contracts. And about how these 150 programs will be collapsed down to five whilst dealing with a budget cut of over $400m across the next four years.[11]
I would argue that the more far reaching the change and the more drastic the budget cuts, the more engagement is needed with the community and its representative organisations.
However, respectful engagement with the Aboriginal and Torres Strait Islander community has been conspicuous by its absence before and after the announcement of these changes and if these changes are to generate positive outcomes, this lack of engagement should be rectified as a matter of urgency.
On a positive note, I am encouraged that parts of governments are getting it right.
For example, at this year’s World Conference on Indigenous Peoples, I am pleased to say that Australia took a leading role and was considered to be a ‘friendly’ nation, that is, one that generally supported the position of Indigenous peoples globally.[12]
But today I’d like to focus on a couple of important relationships, starting with the relationship between government and Aboriginal and Torres Strait Islander people.
An important aspect of building this relationship is renegotiating the power sharing arrangement over decisions made about our communities.
Nation building[13]
Aboriginal and Torres Strait Islander peoples are many unique and individual mobs, with our own identities, languages and cultures. Call them what you will: peoples, tribes, clans, language groups, nations, mobs. I like the term ‘Nations’ as a representative title for all of these groups.
This year, I am excited to share with some insights into work around building Aboriginal and Torres Strait Islander Nations. Dr Mark McMillan, a Wiradjuri man, will shortly speak about the topic of Indigenous Nation Building.
Importantly, Nation building sees governance traditions and processes working from a basis for respect for culture, and cultural authority, allowing communities to decide what structures are legitimate and representative for them.
Assembly of First Nations[14]
When more Nations are governing themselves in this way, it seems natural that they might come together to seek a national platform for joint advocacy and to resolve disputes amongst Nations.
Prompted by a proposal led by barrister Tony McAvoy at several Native Title Conferences, there is currently a commitment by many Nations to establish an Assembly of First Nations by 2016.
I welcome discussion on the creation of the Assembly, which has the potential to further the self-determination of our peoples. In contrast to the other consultative and representative bodies in the Indigenous Affairs space, the Assembly of First Nations has the potential to be the first national body to truly represent Nations and for the first time we can have a decision making body built on cultural authority.
A relationship in need of urgent reform is the one between Aboriginal and Torres Strait Islander communities and the justice system.
Justice reinvestment and targets[15]
It is shameful that we ‘do better at keeping Aboriginal people in prison than in school or university’.[16]
The way to change this is by investing in and creating safer communities.
Instead of investing in imprisonment, governments and local communities, such as those in Bourke and Cowra, are looking to invest in the underlying causes of crime, such early childhood education, disengagement from school, housing support and creating employment.
This grass roots level of justice reinvestment has exciting possibilities that could inform developments across the nation.
I raise again the need to add ‘justice targets’ to the existing ‘Closing the Gap’ targets. Targets have made the gap between Aboriginal and Torres Strait Islander Australians and non-Indigenous Australians visible, which needs to happen to address the overrepresentation of our peoples in the criminal justice system as both victims and offenders.
These targets would directly address the underlying causes of this overrepresentation, look at the transition to adulthood, substance abuse and building the resilience of families and communities.
I am also throwing my support behind the newly formed National Justice Coalition, with the hope for strong leadership in this area.
Native title represents one of our most important relationships – to land, waters and resources. Native title creates a process by which our peoples, the traditional owners, can continue connection with and take care of Country. It is also a way for our mob to renegotiate the power relationship between ourselves, governments and businesses. For the first time, many of our peoples have got that seat at the table, rather than being shunned as mere observers in the development going on in their country.
Native title[17]
Each year the report looks at the developments in native title over the last year.
This year, I discuss the landmark judgment of the Federal Court in the De Rose Hill compensation case.[18] The court ordered the payment of compensation to the Nguraritja claim group. This decision is significant: it is the first time after 21 years of operation compensation has been awarded for the extinguishment of native title rights and interests under the Native Title Act 1993 (Cth).
While the De Rose Hill case is a realisation of native title rights, it is also a reminder of how difficult it is to be successful under the native title framework and the uncertainty around how to calculate compensation in these circumstances.
On the topic of justice, a major barrier to reconciliation is the failure of governments to remedy or recognise formally instances of historical injustice.
Collards’ Stolen Generation Test Case[19]
The Collards had nine of their children taken from them between 1958 and 1961.
This year I report on this family’s test case for remedies from the Western Australian Government, which was determined by the Supreme Court of Western Australia in December last year.[20]
The court found that the Collard children were not ‘stolen’, but taken under Child Welfare legislation for the children’s own protection. This finding denies that a policy of assimilation was in effect at the time.
I reiterate my call for the Australian Government to address the issue of reparations for Stolen Generations and their families, which must be broader than merely monetary compensation.
If healing is to occur, it is necessary for government to address the physical and psychological experiences of the Stolen Generations in a way that recognises and validates trauma.
Effective reparations for the Stolen Generations and their families should be prioritised, before it is too late to do so.
The topic of healing is very relevant to the last issue that I will discuss today. Formal recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of this land is critical to healing the relationship between our peoples and non-Indigenous Australians.
Constitutional recognition[21]
Our country’s story did not begin at the time of colonisation, but our founding document makes no mention of the 60,000 years of Aboriginal and Torres Strait Islander history that came before those settlers.
By recognising Aboriginal and Torres Strait Islander peoples and removing the racially discriminatory sections of our Constitution, we are sending a powerful message to the world about the way we wish to see ourselves as Australians in the 21st century. We are not seeking massive change, but the rectifying of a hundred year-old omission that will complete the jigsaw of our nationhood and our national identity.
By supporting these changes, we are honouring the many thousands of people before us who have fought for change and equal treatment.
There is broad political support for recognition of our peoples as the First Peoples of this land.
There has been much consultation and debate on the issue, including expert panels, committees and reviews, and a national awareness campaign around Australia run by Recognise.
Various polling has shown strong public support across the Australian community for this constitutional recognition.
Yet we are no closer to a referendum than we were when I was appointed to the Expert Panel in 2010.
I am concerned that both support and awareness levels will have waned if the referendum to formalise the recognition does not happen until 2017.
We need a strong commitment to a solid timetable for the referendum and I call for leadership from Prime Minister Abbott to make this happen.
So, here we are. As a nation, we are at a crossroads.
We stand at the brink of recognising Australia’s first peoples rightfully in our Constitution.
We are starting to close the gap of inequality in health and welfare between Aboriginal and Torres Strait Islander people and non-Indigenous Australians.
We are seeing promising grass roots work in communities on justice reinvestment and we have momentum on getting justice targets on the table.
I am now attending meetings in New South Wales, Queensland and Victoria where I don’t hear Koori or Murri. But I am hearing Wiradjuri, Kamileroi, Bunjalang, Yuen, Kaanju, Koombumeri, Quandamooka and Waayni.
This reclamation of Nations names is a powerful precursor to taking control of their own destinies. Nations are making important decisions about self-governance, resource management and service delivery. We are coming together on a national level for an exciting new era of Indigenous representation, this time with cultural authority.
We can achieve social justice for our peoples. It is within reach.
There is much cause for optimism, but also much urgent work to be done.
We need our political leaders to cut through the ‘muddled narrative’ and lack of clarity by engaging with Aboriginal and Torres Strait Islander peoples in the matters that so affect us, and we all need to act now.
Finally, these Reports don’t just appear one day. They represent the sum total of efforts from many people, over countless hours, endless frustration and finally pride in the final product. This year has been particularly tough with the drafting of this report coming in the middle of a complete staffing restructure.
Susan Nicolson, Kirsten Gray, Emilie Priday, Roxanne Moore, Tristan Tipps-Webster, Andy Gargett, Darren Dick, Loki Ball, Jennifer Ross, Kathy Marks, the Legal Team and of course Ally Campbell. I am indebted to you for your painstaking work and professionalism. Thank you for that work and for your commitment to ensuring issues confronting Aboriginal and Torres Strait Islander Australians are put to our Federal Parliament in such a succinct and clearly understood way.
Tim Kanoa, Gunditjmara man, artist, activist, thank you for your craft so clearly before us in the cover photo of this year’s report. I have already received many comments about both its beauty and its meaning.
Today, along with the Commission’s Monitoring and Reporting Team, I launch the Social Justice and Native Title Report 2014.
I thank you all for being here today, and for your continued support of the work we do.
[1] See M Gooda, Social Justice and Native Title Report 2014 (2014), pp 40 - 43. At https://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2014 (viewed 1 December 2014).
[2] Productivity Commission, Overcoming Indigenous Disadvantage (2014), pp 8.41 – 8.45. At http://www.pc.gov.au/research/recurring/overcoming-indigenous-disadvantage/key-indicators-2014#undefined (viewed 1 December 2014).
[3] Productivity Commission, above, ch 8.
[4] Productivity Commission, above, p 4.103.
[5] Australian Institute of Criminology, Overview of all deaths in custody, http://www.aic.gov.au/publications/current%20series/mr/1-20/20/07_overview.html (viewed 1 December 2014).
[6] Productivity Commission, note 2, pp 4.80, 4.83.
[7] Productivity Commission, above, pp 4.97, 4.98; Australian Institute of Health and Welfare, Homelessness, http://www.aihw.gov.au/indigenous-observatory-homelessness/ (viewed 1 December 2014).
[8] Productivity Commission, above, p 4.34.
[9] Productivity Commission, above, p 4.42.
[10] Productivity Commission, above, p 4.94.
[11] See M Gooda, note i, pp 18 – 22. At https://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2014 (viewed 1 December 2014).
[12] M Gooda, above, p 47.
[13] See M Gooda, above, pp 130 – 147.
[14] See M Gooda, above, pp 149 – 154.
[15] See M Gooda, above, ch 4.
[16] C Cunneen, ‘Time to arrest rising Aboriginal prison rates’ (2013) 8 Insight 22, p 24. At http://justicereinvestment.unsw.edu.au/node/34 (viewed 1 December 2014).
[17] See M Gooda, note i, ch 3.
[18] De Rose v State of South Australia [2013] FCA 988.
[19] See M Gooda, note i, pp 44 – 45.
[20] See Collard v State of Western Australia [No 4] [2013] WASC 455.
[21] See M Gooda, note i, pp 33 – 36.