Native Title Report 2008 - Appendix 3

Native Title Report 2008

Appendix 3 Social Justice Package – recommendations made in 1995

1. Recognition, Rights and Reform: A report to government on native title social justice measures.
2 Chapter 4, Social Justice Report 1995

1. Recognition, Rights and Reform: A report to government on native title
social justice measures.^[1]

The recommendations put forward in this report cover an
extraordinarily wide spectrum. Many will require considerable detailed
development and negotiation before they can be put into place.

There will have to be ongoing processes of consultation with the Aboriginal
and Torres Strait Islander communities to ensure that what is done will indeed
meet indigenous needs and aspirations. And there must be adequate mechanisms for
managing the implementation processes and ensuring that the impetus for reform
is sustained.

The proposals fall into six major themes:

The rights of Aboriginal and Torres Strait Islander peoples as citizens;
Recognition of their special status and rights as indigenous Australians and
the achievement of greater self determination for Aboriginal and Torres Strait
Islander peoples;
Ensuring that indigenous Australians are able to exercise their rights and
share equitably in the provision of Government programs and services;
The protection of the cultural integrity and heritage of indigenous
Australians;
Measures to increase Aboriginal and Torres Strait Islander participation in
Australia's economic life.

As a starting point the report
recommends that Governments agree to and legislate a broad set of Principles
for Indigenous Social Justice and the Development of Relations between the
Commonwealth Government and Aboriginal and Torres Strait Islander peoples.

Adoption of this charter would underpin the further development and
implementation of the specific proposals put forward in this report, guide all
future relationships between the Commonwealth and indigenous peoples, and be
capable of applying to the roles and responsibilities of other spheres of
government as well.

Other proposals encompass:

major institutional and structural change, including Constitutional reform
and recognition, regional self-government and regional agreements, and the
negotiation of a Treaty or comparable document;
overcoming inequities and inefficiencies in service delivery, including the
achievement of genuine access and equity in Commonwealth mainstream programs and
revised Commonwealth-State funding arrangements;
protection of rights through such means as recognition of customary laws,
protection of intellectual and cultural property, and recognition of indigenous
rights; and
practical measures to enhance opportunities for economic development and to
achieve other desirable objectives such as improved public awareness of
indigenous cultures and indigenous issues.

Particular
recommendations are made in respect of the following identified areas:

Rights

the reinforcement of access and equity provisions through legislation to
ensure indigenous people can better access their citizenship entitlements;
an increased commitment to supporting international instruments which
reinforce indigenous rights; and
support for measures to define, recognise and extend indigenous rights
including new initiatives in areas such as communal title and assertion of
coextensive rights.

Recognition and Empowerment

promotion and advancement of the constitutional reform agenda;
indigenous representation in Parliament with interim arrangements for
speaking rights by the ATSIC Chairperson;
processes to start work on compensation issues;
promotion of regional agreements as a means of settling social justice
issues on a regional basis commencing with pilot studies;
recognition of a self government option for indigenous people within the
framework of self determination;
support for initial work to develop a framework for a treaty and negotiation
arrangements;
legislative recognition of the Aboriginal and Torres Strait Islander flags;
and
increased support for Public Awareness initiatives.

Citizenship Entitlements

reforms in Commonwealth State funding arrangements to make the States more
accountable for general revenue assistance and to provide for an increased
emphasis on Specific Purpose Payments;
implementation of recommendations relating to major reviews of the
Aboriginal Education Policy (AEP), the National Aboriginal Health Strategy
(NAHS), the Aboriginal Economic Development Policy (AEDP) and the Royal
Commission into Aboriginal Deaths in Custody (RCIADIC);
a proposal for a national Aboriginal and Torres Strait Islander Housing and
Infrastructure program.

Cultural Integrity and Heritage
Protection

legislative reforms to strengthen heritage protection legislation and
protect indigenous rights to cultural property;
providing for greater involvement in environmental decision making;
implementing the report of the Law Reform Commission on Aboriginal customary
law; and
support for extension of language programs and broadcasting initiatives.

Economic Development

fostering closer links with industry;
accessing Community Development Employment Projects (CDEP) Scheme as an
entitlement and removing anomalies;
implementation of business training proposals of AEDP;
fostering regional economic development through inclusive involvement of
Regional Councils; and
further development of strategic business opportunities and resources for a
stake in industry.

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2 Chapter 4, Social Justice Report
1995^[2]

Constitutional change

That recognition of the unique place of Indigenous peoples in contemporary
Australia be a fundamental principle in any national constitutional review and
revision, and that this include recognising the right of Indigenous peoples to
represent ourselves in negotiation of constitutional change with
governments.
That the Commonwealth Government, in consultation with the Council for
Aboriginal Reconciliation, ATSIC, the Constitutional Centenary Foundation and
the Aboriginal and Torres Strait Islander Social Justice Commissioner establish
structures and processes of constitutional reform and national renewal which are
building towards the new millennium and the centenary of the Constitution in
2001.
That Indigenous constitutional structures and processes provide for access
by all sections of the Indigenous community through consultations and public
forums to the development of positions of negotiations with governments. This
will require sufficient resources for the preparation of information and
consultation materials, as well as the equitable funding of forums or groups for
the expression of diverse views.
That structures and processes for Indigenous constitutional recognition and
reform be directed not only to achieving specific rights but to continuing
processes for the renewal of relations between Indigenous and non-Indigenous
Australians.

Regional agreements

That the Australian Government endorses the option of regional agreements,
where initiated by Australian Indigenous peoples, as a process for their greater
recognition and empowerment through recognising land ownership and citizenship
rights. Indigenous management, rights to lands, resources, seas and wildlife
should be institutionally recognised in regional agreements—even where
‘ownership’ is not established.
That extinguishment of native title should not be a pre-requisite for
government negotiation and approval of a regional agreement. Regional agreements
should be negotiated under section 21 of the Native Title Act or
independently of that Act, at the option of the Indigenous regional
negotiators.
That the Australian Government funds trial projects in at least four
regions—in northern and southern Australia—where communities resolve
to pursue negotiated settlements on a regional basis.
That the Australian Government funds a ‘Research and Resource Centre
for Negotiating Indigenous Claims’ which monitors the trial projects and
provides resource and research assistance to Australian Indigenous communities
and organisations. This should include facilitation and training in negotiation
and conflict resolution, encompassing conflict resolution with regions and
organisations, cross-cultural conflicts and inter-governmental conflict.
That the Australian Government report on political, financial and legal
measures which can be used to facilitate State, Territory and local government
involvement in regional agreements.
That Commonwealth legislation be amended or enacted to allow and promote
regional Indigenous corporations with the following functions:
- represent regional organisations and communities in negotiating
  regional agreements;
- raise finances and hold government grants;
- hold communal title to land, assets and resources;
- hold non-communal title to land, assets and resources;
- engage in enterprises;
- participate in planning, environmental and resource management
  processes and land claims;
- participate in sustainable development strategies;
- provide regional services; and,
- engage in negotiating and providing self-government
  functions.
That regional agreements must proceed on the basis that negotiations do not
violate relevant international standards such as those articulated in the Draft Declaration on the Rights of Indigenous Peoples, International Labour Organisation Convention 169 and the Biodiversity
Convention and other human rights conventions. The Commonwealth Government
should implement ‘bottom line’ conditions for negotiation based on
such international standards.
That, following trial projects, Indigenous organisations be funded for the
negotiation of Agreements-in-Principle, and provided with interest free loans
for the finalisation of agreements.
That the Commonwealth Government and Aboriginal organisations investigate
the expedited regional agreement processes being developed in British Columbia,
Canada.
That regional agreements be recognised through Commonwealth legislation.
Constitutional reform proposals should provide constitutional recognition
subject to clearly defined amendment processes.
That the Commonwealth—and any involved State and Territory
Governments—enter into implementation contracts, timetables and resource
allocation to implement regional agreements.

Reform of the
funding of citizenship services for Indigenous peoples

That the Commonwealth Government affirm its commitment to establishing a
direct fiscal relationship with Indigenous communities and organisations.
That the Commonwealth Government initiate:
- A comprehensive study by the Commonwealth Grants Commission of the
  potential application of the fiscal equalisation principle among Indigenous
  communities in Australia. Such a study to be undertaken in a manner which allows
  for the outcomes to be broken down into both States/Territories and regions;
  and
- A specific reference to the Commonwealth Grants Commission to
  explore solutions to the enormous and inequitable capital infrastructure needs
  of Indigenous communities.

International
connections

The Parliament should establish a Human Rights Committee of members with
relevant expertise and such a committee should conduct a public inquiry into the
benefits to Aboriginal and Torres Strait Islander peoples and the wider
Australian community of international Indigenous awareness and co-operation; and
how to involve Australia and its citizens, especially Aboriginal and Torres
Strait Islander peoples, in this burgeoning field of international relations.
Subject to the establishment of a Human Rights Committee, the Joint Standing
Committee on Foreign Affairs, Defence and Trade should conduct such an
inquiry.
That the Commonwealth Government provide the mandate and resources for an
independent Aboriginal international Indigenous watch organisation. This could
either take place through an expansion of the Office of the Aboriginal and
Torres Strait Islander Social Justice Commissioner, or could be established as
an independent specialist Non-Government Organisation.
A workshop on Indigenous marine policy issues and needs bringing Torres
Strait Islander and Aboriginal representatives together with Coastal Sami,
Inuit, Indian First Nations of Canada’s Pacific coast, and South Pacific
peoples, should be held. The workshop would also consider the usefulness and
feasibility of an ongoing international Indigenous marine network of peoples and
organisations.
The Aboriginal and Torres Strait Islander Commission, the Council for
Aboriginal Reconciliation, and the Aboriginal and Torres Strait Islander Social
Justice Commissioner should consult with Indigenous organisations to develop a
priority list of urgently required international comparative studies on issues
identified in this report and elsewhere including macro- and
micro-constitutional reform; regional agreements; inter-governmental relations
internal to nation-states in respect of Indigenous policy and programs;
self-government; land and sea rights; and Indigenous management of territory and
resources.
In respect of [the] recommendation above, a fund should be established under
the joint management of ATSIC, the Council for Aboriginal Reconciliation, and
the Aboriginal and Torres Strait Islander Social Justice Commissioner to carry
out international comparative research on these and other urgent Indigenous
policy issues.

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^[1] Aboriginal and Torres Strait
Islander Commission, Recognition, Rights and Reform: A Report to Government
on Native Title Social Justice Measures (1995). Reproduced in [1996] Australian Indigenous Law Reporter 27. At: http://www.austlii.edu.au/au/journals/AILR/1996/27.html.

^[2] M Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2005, Australian Human Rights Commission (1995), pp
96-135.

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Native Title Report 2008 - Appendix 3