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HREOC Social Justice Report 2002: Summary

Social Justice Report 2002

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    • Executive
    Summary

    Overview

    The Social Justice
    Report 2002     discusses initiatives currently underway or in development
    at the federal, state and territory levels in relation to Aboriginal and
    Torres Strait Islander Affairs. The report commends the following positive
    developments in Indigenous policy:

    • The commitment
      of governments at all levels to partnerships with Indigenous peoples,
      including through statements of commitment to negotiate service delivery
      arrangements with Indigenous organisations and commitments to negotiation
      justice agreements;
    • The commitment
      of the federal government to principles for the equitable provision
      of services to Indigenous peoples as part of its response to the Commonwealth
      Grants Commission's report on Indigenous funding;
    • Recognition by
      governments of the central importance of capacity building of Indigenous
      communities and of supporting and developing Indigenous governance structures;
    • The commitment
      of the Council of Australian Governments to processes for addressing
      Indigenous disadvantage, including the establishment of a framework
      for reporting on Indigenous disadvantage, the formulation of action
      plans at the inter-governmental level in specific areas and a trial
      in ten communities of a whole-of-government approach to service delivery;
      and
    • Support of the
      federal government at the international level to the effective operation
      of the newly created UN Permanent Forum on Indigenous Issues.

    Overall, however,
    the Report evidences that the past year has been another difficult one
    for Indigenous peoples in this country.

    In trying to provide
    a snapshot of the status of Indigenous policy making and achievements
    by governments over the past year, it is difficult to see any consistent
    forward trend. There have been marginal improvements in some statistical
    indicators, but deterioration in others. The policy approaches of governments
    are ultimately full of inconsistencies, ad hoc developments, and commitments
    that not only remain unmet but which are not adequately supported by
    institutional developments.

    There have been two
    particularly worrying trends     that have been confirmed over the past
    year at the federal level. The first is a continuation of the antagonistic
    and adversarial approach to Indigenous policy by the federal Government.

    Substantial
    bi-partisan support for reconciliation and directions in Indigenous
    policy has been undermined by the limited focus of the Government    .
    Those areas on which there is common ground are relatively few - and
    basically relate to agreement on the need to overcome Indigenous disadvantage
    - and there is even less agreement on what are the best ways to address
    such issues.

    The second worrying
    trend is the relegation of Indigenous issues to a second tier issue for
    the Government.     While reconciliation was a priority for the second
    term of the Government, it does not even rate a mention in recent announcements
    of the Government's strategic long term vision for Australian society.

    Indigenous issues
    are not treated as a national priority, and there are no public commitments
    to timeframes for achieving results in areas on which there is substantial
    agreement - such as Indigenous disadvantage.

    At the state and
    territory levels, there is much goodwill being expressed with extensive
    commitments to partnerships with Indigenous peoples. These partnerships
    remain works in progress and it is unfortunate that they have not yet
    been accompanied by the necessary institutional support or action.

    The one true highlight
    of the past year, however, has been the demonstration through a range
    of processes that Indigenous peoples are not going to sit back and wait
    for governments' to solve the various problems faced in communities.

    Indigenous communities
    across the country are demonstrating that they are not passive victims
    but distinct peoples fighting hard for the survival and recognition
    of their cultural distinctiveness. Indigenous communities across the
    country know what they want and are working towards building their capacity
    and striking agreements with governments to implement it.

    There are two main
    issues that run through this report. First, the Report continually seeks
    to establish whether the Government's preference for certain words and
    symbols is merely rhetorical and is consistent with the principles that
    they symbolically reject, or whether it is in fact amounts to a substantive
    change of direction in Indigenous policy.

    The second feature
    of the report is that given the minimal framework for Indigenous policy
    being set by the federal government, it deliberately seeks to place Indigenous
    issues within a broader context. The report highlights the differences
    between self-determination and self-empowerment; practical reconciliation
    and progressive realization and a rights framework for addressing Indigenous
    disadvantage; and by considering international developments in the recognition
    of Indigenous rights. Each demonstrates the severely constrained approach
    that has been adopted by the federal Government and hints at the potential
    in a broader, rights-based approach.

    Contents
    of report

    Chapter
    2     -'Self-determination: the freedom to live well' - examines the core
    principles which underpin the federal Government's approach to Indigenous
    affairs.     Since 1998, the Government has openly rejected self-determination
    as the basis of policy formulation. This chapter provides an overview
    of international developments on Indigenous self-determination and compares
    this to the way the Government explains its policy approach in order to
    identify its limitations and considers options for reform.

    Chapter
    3     - 'National progress towards reconciliation in 2002 - an equitable
    partnership?' - provides a progress report on reconciliation over the
    past year.     It notes developments at the inter-governmental level,
    the federal government's responses to the documents of the Council for
    Aboriginal Reconciliation and the report of the Commonwealth Grants Commission,
    and the Government's agenda for reconciliation. Ultimately it questions
    the basis on which the Government seeks to engage with Indigenous peoples,
    and the lack of equality in the partnerships that it seeks to enter.

    Chapter
    4     - 'Measuring Indigenous disadvantage' -provides a detailed
    analysis of current approaches to addressing Indigenous disadvantage.
    It draws on significant international developments in countering poverty
    and economic marginalisation, as well as international human rights standards.
    The chapter also considers in depth the framework for measuring Indigenous
    disadvantage that is currently being prepared for the Council of Australian
    Governments. There are some clear contrasts between the limiting framework
    of practical reconciliation and the more focused and accountable approach
    based on international guidance and standards.

    Chapter
    5     - 'Indigenous women and the criminal justice system - A landscape
    of risk' - focuses on Indigenous women and their experiences of contact
    with criminal justice processes.     This chapter paints a disturbing
    picture of the lack of support provided to Indigenous women in many areas
    of society and its consequent impact through criminalisation. The lack
    of attention to these issues by policy makers to date is a matter of great
    shame.

    Chapter
    6     - 'International developments in the recognition of the rights of
    Indigenous peoples' - notes the extensive developments in the recognition
    of Indigenous rights at the international level.     These are considered
    within two main contexts - the current review taking place within the
    United Nations of all the existing mechanisms at the UN dealing with Indigenous
    issues; and the International Decade for the World's Indigenous Peoples
    which is now in its final two years. This review illustrates how Australia
    has moved towards the most conservative end of the spectrum in addressing
    Indigenous rights.

    The report then concludes
    with an appendix which summarises
    partnerships and agreements that have been entered into between Indigenous
    peoples and state or territory governments     in recent years.

    Chapter
    2: Self-determination - the 'freedom to live well'

    In both the domestic
    and international arenas, Australia's opposition to recognition of a
    right to self-determination has been based on simplistic, and often
    legally incorrect, assumptions which present self-determination as purely
    symbolic, as a catchcry for all the failings of Indigenous policy in
    the past thirty years, or as 'a rigid choice between all or nothing
    - between the forming of an independent state or complete denial of
    a cultural and political identity'. The reality of Indigenous self-determination,
    however, lies between these extremes and is a process of negotiation,
    accommodation and participation.

    This chapter answers
    the question 'what is Indigenous self-determination?' by examining how
    this concept has developed in international law. It then examines the
    Government's position on self-determination in both the domestic and international
    arenas and provides an analysis of their approach.

    Self-determination and the
    'politics of symbolism'

    Historically, the
    term self-determination was first applied to Indigenous policy by the
    Whitlam government in 1972. It replaced the by then largely discredited
    policy of assimilation and was a statement of the practical reality that
    assimilation simply didn't work. Since 1996, however, the Government has
    stated that it no longer supports self-determination as the basis of Indigenous
    policy formulation and announced that it would actively oppose recognition
    of Indigenous peoples' entitlement to such a right in international negotiations.

    In light of the broad
    acceptance of self-determination by Government for just under thirty years,
    the question that has to be asked is how have we now reached the situation
    where the current Government has rejected self-determination on the basis
    that it is purely a matter of 'symbolism' divorced from the day to day
    lives of Indigenous peoples? In my view, there are four main answers to
    this question.

    • First, the concept
      of self-determination has never transcended its historical roots in
      Australia. Self-determination has in many ways been defined by what
      it is not, i.e. assimilation. For many it has become a political slogan
      and a rhetorical device.
    • Second, a bureaucratic
      version of self-determination has been imposed on communities, often
      fitting them into a different straight-jacket for service delivery and
      decision making to the one that previously existed. This has seen communities
      'handed' control and resources through this new organisational sector
      with limited efforts to develop their institutional capacity to effectively
      manage and control the process.
    • Third, Indigenous
      communities have been tied to the control of government. Control mechanisms
      have been retained by governments and institutional reform has been
      limited to the creation of new layers of bureaucracy.
    • Fourth, for all
      the commitments to self-determination, such as through COAG's 1992 National
      Commitment and the responses to the Royal Commission into Aboriginal
      Deaths in Custody, these were in reality never implemented. Self-determination
      as the centre-piece of Indigenous policy has to a large extent been
      a statement of intention rather than of action. Real self-determination
      has never been tried. There remains a need to address the deficiencies
      in the implementation of self-determination over the past thirty years.

    (Re-)Defining self-determination

    Debate on the application
    of self-determination to the situation of Indigenous peoples remains among
    the most difficult and controversial in any area of the United Nations.
    There are, however, a number of key features about the right of self-determination
    that are now established in international law which are of great assistance
    in evaluating the adequacy of the current approach by the Government in
    Australia.

    The right of self-determination
    is Article 1 of the International Covenant on Civil and Political Rights
    (ICCPR) and the International Covenant on Economic, Social and Cultural
    Rights (ICESCR). Australia is a party to both of these covenants and is
    bound to act in compliance with their terms.

    Article 1

     1. All peoples have the right of self-determination. By virtue
    of that right they freely determine their political status and freely
    pursue their economic, social and cultural development.

    This formulation
    is repeated in Article 3 of the Draft Declaration on the Rights of Indigenous
    Peoples. There are two main areas of debate internationally about the
    provisions of the draft Declaration as well as about the application of
    the provisions of the international covenants. First, is whether Indigenous
    peoples are entitled to a right of self-determination? Second, if they
    are, what is the content of that right and what are the limitations on
    its exercise (or put simply, what is Indigenous self-determination)?

    a) Do Indigenous
    peoples have a right to self-determination?

    Indigenous peoples
    have been recognised as a separate, distinct category from minorities
    in international law. This is on the basis that Indigenous peoples possess
    a collective status whereas minorities in general do not. Some UN studies
    and the United Nations human rights committees have concluded that Indigenous
    peoples are in fact 'peoples' within the context of Article 1 of the international
    covenants and are therefore entitled to a right to self-determination.

    The contention by
    governments that Indigenous peoples constitute a 'peoples' and possess
    the necessary collective identity to be recognised as enjoying a right
    to self-determination can no longer be challenged with any legitimacy
    or credibility. Governments have not yet accepted this conclusion.

    b) What is Indigenous
    self-determination?

    Definition of
    self-determination    : Self-determination is an ongoing process of
    choice for the achievement of human security and fulfilment of human
    needs with a broad scope of possible outcomes and expressions suited
    to different specific situations. These can include, but are not limited
    to, guarantees of cultural security, forms of self-governance and autonomy,
    economic self-reliance, effective participation at the international
    level, land rights and the ability to care for the natural environment,
    spiritual freedom and the various forms that ensure the free expression
    and protection of collective identity in dignity.

    The protection of
    self-determination unquestionably involves some kind of collective political
    identity for indigenous nations and peoples, i.e. it requires official
    recognition of their representatives, institutions and distinct cultural
    values.

    Respect for Indigenous
    peoples' relationship to land and resources is an integral component of
    self-determination, from an economic, social, political and cultural dimension.
    A lack of control of traditional lands and resources is often a significant
    institutional barrier to the realisation of Indigenous self-determination.

    Essential to the
    exercise of self-determination is choice, participation and control. The
    essential requirement for self-determination is that the outcome corresponds
    to the free and voluntary choice of the people concerned. Accordingly,
    self-determination does not have a prescribed or pre-determined outcome.
    It is a process that is ongoing. It is not a one off event or something
    that is defined as at a particular moment in history.

    A notion of popular
    participation is inherent to self-determination. In a democracy, Indigenous
    peoples right to self-determination is not necessarily safeguarded or
    respected by a reliance on majority rule. The nature of participation
    and representativeness required by self-determination necessitates going
    beyond sameness of treatment and to strive for institutional innovation.

    The maintenance of
    the territorial integrity of the State is linked to respect for self-determination.
    Numerous UN declarations limit the exercise of self-determination so that
    it does not threaten territorial integrity or unity of States. This is
    so long as those states conduct themselves in compliance with the principles
    of equal rights and self-determination of peoples and are representative.
    Continued government representivity and accountability is therefore a
    condition for continued application of the territorial integrity and national
    unity principles. The recognition of Indigenous self-determination in
    the draft Declaration on the Rights of Indigenous Peoples is also qualified
    in a way that guarantees the territorial integrity of States

    Secession is an extreme
    expression of self-determination and one that will only occur in the rarest
    of cases when all other processes have failed. The equation of self-determination
    with secession is made without reference to the existing state of international
    law and without an eye to history.

    Self-determination
    is not self-executing, unilateral or absolute in its application and is
    a process of engagement and negotiation. When balanced against principles
    such as the protection of territorial integrity, the international community
    is highly unlikely to recognise secessionist movements in States that
    are conducting themselves in good faith. There are no examples of aspirations
    for secession being expressed by Indigenous Australians.

    The fear by governments
    of secession is not soundly based in existing law or political reality.
    What is required for progress in recognition of Indigenous self-determination
    is for governments to stop acting in bad faith by automatically equating
    self-determination with secession.

    The Government's approach
    to self-determination

    The current Government
    has made clear that it does not support self-determination as the underlying
    principle for policy development in Australia. As the Government has gone
    about the task of locking into place its practical reconciliation approach
    it has simply disengaged on issues that it does not agree with. Accompanying
    this trend has been the tendency for the Government to co-opt language
    that has traditionally been used in relation to self-determination. An
    important question that must be addressed therefore is whether their opposition
    to self-determination is largely rhetorical and simply reflects a preference
    for a different word, or whether it is a genuine rejection of the legal
    concept of self-determination.

    Through domestic
    policy debates as well as international negotiations we can identify the
    following factors which are of relevance to the Government's position
    on self-determination.

    The government acknowledges
    that Indigenous peoples are the first people of Australia with a unique
    status and identities. The Government acknowledges that Indigenous peoples
    have not always been provided with equal opportunities in the past and
    that there is a need for special measures to overcome any consequent disadvantage
    that has resulted.

    The Government opposes
    recognising a right of Indigenous peoples to self-determination in domestic
    policy formulation as well as in international instruments. The government
    misrepresents self-determination as providing the right to unilaterally
    challenge national sovereignty and to imply the possibility of the establishment
    of a separate indigenous state or states within Australia. It is implied
    that self-determination or recognition of cultural group rights runs counter
    to the belief that all Australians should be equally subject to a common
    set of laws with no special treatment.

    While the Government
    does not support self-determination it does support Indigenous peoples
    having meaningful opportunities to exercise control over aspects of their
    own affairs and be engaged to the maximum extent possible as partners
    in the design and delivery of services. The opportunity to exercise control,
    however, is clearly confined within the context of citizenship entitlements
    and the 'same' benefits (or common rights) that all other Australians
    are entitled to.

    The extent of such
    control is never specified, although forms of self-government are rejected
    as a 'distraction'. The right of Indigenous people to exercise control
    over aspects of their lives is contrasted with the unacceptable
    contention that self-determination implies that a government must in some
    way relinquish responsibility for and control over those aspects of well-being
    over which it 'rightly has jurisdiction'. Agreement-making is seen as
    the 'new' way to achieving the acceptable goal of 'active partnership
    and consultation with government'. Capacity building of communities to
    be self-managing is also identified as an essential component to this
    'new' partnership approach.

    However, this approach
    appears to not extend to recognition of Indigenous sovereignty and the
    transfer of institutional control to Indigenous communities. The Government's
    preferred concepts of self-empowerment and responsibility, defined as
    individuals being able to 'determine their own destiny', emphasise sameness,
    unity or 'one-ness'.

    While not accepting
    that there is a right to self-determination, the Government's position
    provides support in international negotiations to attempts by other countries
    to limit the recognition of self-determination to 'internal' as opposed
    to 'external' applications.

    Implementing Indigenous self-determination
    in Australia

    There are a range
    of significant differences between the Government's approach to self-determination
    and the understanding of it that has developed internationally. Ultimately,
    when we scratch beneath the surface of the Government's rhetoric their
    approach is exposed as a reductive, minimalist one that is not prepared
    to accommodate Indigenous aspirations or recognise any distinct status
    of Indigenous peoples in any meaningful way. The implications of this
    approach are significant and cannot be rejected simply as rhetorical or
    as representing a preference for a particular type of language.

    There are five
    main concerns     that I have about the Government's approach, when compared
    to the fuller understanding of self-determination provided earlier.

    1) The Government's
    reliance upon inflammatory, provocative untruths to reject Indigenous
    self-determination;

    2) The failure,
    or perhaps refusal, of the Government to accept that any consequences
    flow from recognising the unique, distinct status of Indigenous peoples
    in this country.
    The Government seeks to limit the recognition of Indigenous peoples' status
    as if they were an undifferentiated minority group whose needs can be
    addressed under the umbrella of say multiculturalism and by guaranteeing
    sameness of treatment or opportunities for the same level of development.
    Native title, land rights and measures such as the Indigenous Land Corporation
    which are intended to address the consequences of Indigenous dispossession,
    are perfect illustrations of how Indigenous issues do not comfortably
    fit in this way. A more wide-ranging definition of equality, which focuses
    on outcomes (such as in terms of equality of protection of culture) rather
    than on inputs (such as by purely guaranteeing equality of opportunities,
    as if there were a level playing field) is needed.

    At present, the
    relationship between Indigenous people is defined according to little
    more than the beneficial intentions of Government to improve the life
    conditions of grossly disadvantaged Indigenous peoples. Such intentions
    are easily twisted into resentment and frustration at the amount of
    money spent when the desired improvements are not forthcoming. Defining
    a peoples' status and rights purely through their experiences of disadvantage
    is a dominating and disempowering approach. It is not a respectful basis
    for a relationship.

    3) The lack of
    recognition of Indigenous peoples' unique status has meant that there
    is no underlying basis, no guiding principles, for relations between governments
    and Indigenous peoples.     Indigenous peoples have on several occasions
    identified principles that should underpin negotiations between themselves
    and Government, so that sufficient attention is paid to their distinct
    cultural characteristics and unique status in this country. The current
    approach, which has no such underpinning, leaves Indigenous policy formulation
    to develop without a consistent focus as to its purpose and without appropriate
    recognition of the status of Indigenous peoples.

    4) The Government's
    current framework is oppositional in its approach and sets up Indigenous
    peoples as competitors of government    . There is a fear in the Government's
    approach that Indigenous peoples are going to usurp control and power
    over matters which they believe more appropriately belong as responsibilities
    of government. It is a strange, indeed almost paranoid, view of partnership.
    It is also, in my view, an unrealistic one that does not accurately reflect
    Indigenous aspirations nor reflect historical reality.

    Underlying the
    Government's concern about Indigenous control is a notion of loss of
    accountability. Central to the principle of self-determination is a
    notion of responsibility. Indigenous communities must be accountable
    for their decision making and expenditure. Issues of accountability,
    however, run two ways - accountability to the funding agency and government,
    and accountability to the community who are intended to benefit from
    the programme or policy intervention that is made. At present, there
    is a real imbalance with limited accountability back to Indigenous communities
    (and to the community as a whole).

    Ultimately, however,
    concern about ensuring adequate lines of accountability is not a
    reason for not engaging in a substantial process of involving Indigenous
    people in decision making and programme design and management. It is
    a reason to do so on an agreed basis, with a clear understanding as
    to accountability and monitoring requirements.

    5) There is no
    general acceptance by the Government of the legitimacy of Indigenous peoples
    being the primary decision makers on matters that affect their daily lives    ,
    and for efforts to build the capacity of Indigenous communities being
    directed at this aim.

    Conclusion - Reclaiming self-determination

    The Government's
    opposition to self-determination is not merely rhetorical. It has consequences
    and places limitations on the breadth of enjoyment of rights by Indigenous
    peoples and on their ability to participate meaningfully in processes
    that affect their lives.

    Overall, the concerns
    identified here point to major differences between a rights based approach
    to reconciliation and Indigenous policy formulation, and the approach
    currently favoured by the Government. There are two broad consequences
    that flow from this.

    First, a number of
    the concerns and contentions that are raised by the Government about self-determination
    in both the domestic and international arenas are unjustified. Some are
    not supported by developments in international law; others simply lack
    reality. In my view, these limitations and gaps in the Government's approach
    militate against effective policy and programme design in Australia. Second,
    the current approach of the Government to Indigenous policy formulation
    is introverted and myopic. It is unwilling to build on international developments
    or to accept that at core we are dealing with problems in relation to
    Indigenous peoples that are being faced globally. The current Australian
    approach is at the most conservative end of the spectrum internationally.

    Despite the Government's
    current approach, I remain heartened due the fact that Indigenous peoples
    have not sat by while this framework has been implemented or been passive
    in their response to it. Communities all over the country continue to
    work away at the realisation of their aspirations and goals with the often
    limited tools that they have at their disposal. The fact that the government
    does not support self-determination or put into place processes for its
    realisation is not the end of the matter. By focusing on the capacity
    of the community to resolve and own these problems, they place the community
    in a more powerful and central role to take control of their destinies.
    A central factor to the success of these processes, however, is the level
    of Government engagement and support for them. When we look to some current
    initiatives within a framework of self-determination, we can see the inconsistencies
    and ad hoc nature of the Government's intervention.

    True self-determination
    requires communities to marginalise the role of government in the functioning
    of their communities. It is a perversion that governments continue
    to exercise almost total control over many Indigenous communities. It
    is not a normal functioning of those communities or of government. We
    must continue to challenge the narrowness of the approach of the government.
    Communities must also not be discouraged from seeking their own resolutions
    to the problems that they face as communities. They must continue to
    reclaim self-determination from the government.

    Chapter
    3: National progress towards reconciliation in 2002 - an equitable partnership?

    Implementing 'practical reconciliation'

    1) 'Changing Direction',
    the 5-point plan

    The 5-point plan
    outlined by Minister for Aboriginal and Torres Strait Islander Affairs
    at the ATSIC National Policy Conference in March 2002 reinforces the government's
    minimalist policy agenda on practical reconciliation. It includes:

    • An emphasis on
      the achievement of individual citizenship rights in the domain of education,
      health, housing, employment and a safe environment for families.
    • Consideration
      of the rights to culture, to own land for cultural, economic and social
      purposes and to contribute to environmental preservation (including
      native title and self-determination) only secondarily to citizenship
      rights.
    • Self-determination
      as it occurs within the Minister's model of an 'inclusive society' is
      defined in terms of individual rather than collective rights.
    • An individualist
      emphasis on replacing welfare disadvantage with economic independence,
      as problems of corporate governance within Indigenous community organizations
      become the rationale for a shift to individual and family rights.

    The rights agenda
    presented by the Minister's speech effectively strips away the right of
    Indigenous Australians to define their own destiny, governance and culture
    as autonomous peoples and promotes their absorption within rather than
    their co-existence with the Government's neo-rationalist conception of
    society as an 'aggregation of individuals'.

    2) 'Agreement
    making and sharing common ground'

    The Minister's speech
    at the ATSIC National Treaty Conference in August 2002 refutes claims
    that the Government's approach to Indigenous policy is assimilationist.
    The Minster emphasises citizenship rights and the ideal of an inclusive
    society but does elaborate what recognition the special place that Indigenous
    people occupy as the 'first Australians' or recognition of Indigenous
    culture might entail.

    The offer of inclusiveness
    to Indigenous Australians without consideration of the rights and values
    inherent within Indigenous cultures sounds all too much like invitation
    to conform to mainstream Australian society without extending a reciprocal
    invitation to non-Indigenous Australia to examine its relationship to
    the Indigenous population. Inclusiveness as defined in the Minister's
    speech is potentially a form of neo-assimilation.

    3) Expenditure
    on Indigenous-specific programmes

    A major component
    of the Government's approach to reconciliation is its reference to the
    record high levels of expenditure on Indigenous affairs. In the 2002-03
    Budget this record expenditure reached $2.5 billion on Indigenous-specific
    programmes. Most of the increase on previous years was a flow-on from
    the $327 million of initiatives over 4 years announced in the 2001-02
    Budget.

    This injection
    of additional funding still falls a long way short of the necessary funds
    projected to meet outstanding deficits across a range of key areas. Significantly
    the Budget also did not provide any increase in the government's existing
    allocation of $11 million funding for Indigenous-specific family violence
    projects over a four-year period, despite the intense media attention
    given to this subject over the past year and the government's use of this
    issue to reinforce its call for a practical reconciliation

    4) The Council
    of Australian Government's reconciliation framework

    The COAG Reconciliation
    Framework: Report on Progress in 2001     (Progress Report)     was released
    subsequent to the COAG communiqué of 5 April 2002. While there
    is evidence of much good will in the Report, there is yet to be substantial
    progress made in addressing Indigenous disadvantage. Much of the Progress
    Report is devoted to detailing initiatives that are already in train and
    which consequently, have not necessarily been driven by COAG's priorities
    or commitments.

    Of particular concern
    are the developments (or lack of them) in regard to reporting Indigenous
    data and the establishment of action plans by each of the Ministerial
    Councils under COAG. The next progress report is to be submitted by the
    end of 2003.

    At the April 2002
    meeting of COAG it was agreed to commission the Steering Committee
    for the Review of Commonwealth/State Service Provision (SCRCSSP)     to
    develop a framework for reporting on key indicators of Indigenous disadvantage.

    The Steering Committee
    will publish a Framework for reporting on Indigenous disadvantage
    in August/September 2003, which will be included in the COAG report on
    reconciliation in December 2003. It is anticipated that the reporting
    under the framework will facilitate debate about the adequacy and appropriateness
    of policies and programs in functional areas (see chapter 4).

    While the framework
    is an important development it is of great concern that it is not
    accompanied by other processes which ensure sufficient and appropriate
    Indigenous participation in setting priorities and qualitative monitoring
    processes. As a result, the framework as a stand alone mechanism has
    the potential to reinforce practical reconciliation and marginalize
    further other issues of significance to Indigenous peoples.

    The framework also
    needs to negotiate the continuing problems with data availability and
    statistical collection, differentiation between population groups, and
    linkage with other reporting processes. (this framework is analysed in
    detail in chapter 4 of this report).

    A third initiative
    announced by COAG during the year was a trial of a 'whole-of-government'
    approach to service delivery in ten Indigenous communities.     This initiative
    involves cooperation across government agencies under the leadership of
    a taskforce directed by a group of Commonwealth departmental secretaries,
    and includes ATSIC representation. Trials have commenced in the Cape York
    region (Queensland) and the Wadeye community (Northern Territory).

    This is a significant
    and commendable initiative. However, the impact of duplication and poor
    coordination services at an interagency level on service delivery to Indigenous
    communities have been observed for some time in regard to increasing levels
    of Indigenous disadvantage.

    In fact a range of
    approaches, including partnerships, agreements and governance arrangements,
    have been proposed with the aim of improving the service delivery environment
    for Indigenous Australians, most recently the Community Participation
    Agreements (CPA) being trialled by ATSIC as part of the Budget 2001 welfare
    reform package. This is no small part due to inflexibility and unwillingness
    to change current service delivery in approaches at the federal level.

    In order to avoid
    replication of past problems it is crucial that the fundamental issues
    concerning Indigenous service delivery be addressed and factored into
    the trial's processes and evaluation framework. The rights and autonomy
    of Indigenous partners be respected to ensure effective participation,
    and for Indigenous ownership of processes and structures be involved
    in modelling. Equal emphasis needs to be given to the responsibility
    of governments and government departments and agencies in improving
    their performance in regard to Indigenous communities.

    5) The Government's
    Response to the Commonwealth Grants Commission's Report on Indigenous
    Funding

    The Government responded
    to the CGC's report in June 2002, observing that the Report provided a
    valuable basis for development of evidence-based policy in Indigenous
    affairs. It contains a number of important undertakings and commitments,
    which are made in the context of 'Principles for equitable provision
    of services to Indigenous people'     an agenda that provides an accountability
    framework for Government. The issue, as has been the case in the past,
    will be whether the rhetoric will be matched by action and by the level
    of priority accorded to these matters.

    A concern about
    the Government Response to the CGC is that it is confined to issues
    that fall within the 'practical reconciliation' agenda. The Government
    response states at the outset that 'the CGC report includes findings
    and makes observations that go beyond the terms of reference for the
    inquiry. [The Government's] response… is limited to those matters
    that are within the terms of reference'.

    The Government Response
    to the CGC acknowledges the difficulty in constructing regional indexes
    of relative needs because of the absence of adequate data. However, the
    continued narrowing of the government's focus on Indigenous funding to
    consideration solely of relative need means that some important issues
    highlighted by the CGC Report are largely disregarded, such as:

    • The practical
      and conceptual difficulties with the notion of applying a formula-based
      approach to allocation of Indigenous funding using indexes of relative
      need.
    • The difference
      between the rate that Indigenous and non-Indigenous Australians access
      mainstream services.
    • The difference
      between Indigenous and non-Indigenous perspectives in the inevitable
      use of value judgments in decision-making about funding priorities.
    • The ramification
      of the historically-entrenched poverty and socio-economic marginalisation
      faced by Indigenous people for their relationship to government programs
      and services.
    • The role of developing
      Indigenous community-capacity and control in service delivery processes.

    The principles for
    equitable provision of services to Indigenous people put forward by the
    Government Response to the CGC could also be aligned more strongly with
    a human rights framework that sets benchmarks for progressive realisation
    of rights in addressing poverty and disadvantage. Such a framework could,
    for example, assist in clarifying the outcomes to be achieved by a policy
    approach for addressing Indigenous disadvantage and provide benchmarks
    for measuring progress in addressing inequality within a long-term perspective.
    As the principles currently stand it is difficult to see how they can
    ultimately be effective in addressing Indigenous disadvantage.

    Despite the difficulties
    surrounding the relationship between need and resource allocation it is
    important that the Government not repeat the mistakes of past policymakers
    and that in seeking to make mainstream services genuinely more responsive
    to Indigenous people, it builds a partnership that is grounded in standards
    of equity, effective participation and self-determination.

    6) The Government's
    Response to the Council for Aboriginal Reconciliation's Final Report Reconciliation:
    Australia's Challenge

    Government's Response
    to CAR's Final Report is certainly not representative of the content of
    CAR's recommendations: it responds to only one of the Council's six final
    recommendations, and it outright rejects one of its four, integrated national
    strategies.

    The following 'practical
    reconciliation' themes are commonly reiterated in the Government's Response
    to the CAR documents:

    • A minimalist
      response to the symbolic issues raised in the reconciliation documents;
    • A perception that
      self-determination is divisive;
    • An emphasis on
      perceived areas of agreement at the expense of continuing debate on
      other areas; and
    • A misrepresentation
      of progress towards meeting the goals of practical reconciliation.

    A minimalist
    response to symbolic issues

    The recommendations
    concerning 'symbolic' issues, including those often publicly identified
    with a rights agenda such as the enactment of legislation for a treaty
    process or constitutional recognition of Indigenous Australian's rights,
    receive scant treatment in the Government's response to CAR's final report.

    While the Government's
    support for processes to acknowledge the special place of Indigenous peoples
    in the life and history of Australia in Commonwealth ceremonies and for
    a referendum to repeal section 25 of the Constitution are welcome initiatives,
    the Government Response to CAR lacks commitment and direction to making
    reconciliation a reality into the future.

    These elements are
    evident in the government's refusal to pursue legislation that would enshrine
    the principles in the CAR documents (Recommendation 2); to affirm the
    Australian Declaration Towards Reconciliation (Recommendation 4); and
    to enact legislation to support a treaty or agreement process to address
    the unresolved issues of reconciliation (Recommendation 6).

    While the Government
    has challenged Indigenous requests for a treaty by arguing that it does
    not enjoy widespread community support, public opinion is not the sole
    determining factor in the liberal democratic process:

    There are periods
    in Australian history prior to the 1967 referendum when basic citizenship
    rights for Indigenous people may not have received widespread community
    support but this does mean that some of the dehumanising treatment experienced
    by Indigenous people or the failure of past governments to protect their
    basic rights was in any way supportable. The recognition of Indigenous
    inherent rights deserves national leadership within the reconciliation
    process including legal protection where appropriate.

    The perceived
    divisiveness of self-determination

    Related to the Government's
    continuing refusal to countenance recognition and protection of Indigenous
    people's inherent rights is its commitment to perpetuating the misconception
    that Indigenous self-determination will necessarily be divisive as it
    'carries the implication of a separate Indigenous state or states.' As
    explained in chapter 2, self-determination does not constitute such a
    threat to national unity as it does not amount to a right of secession.

    An emphasis on
    perceived areas of agreement

    While the Government's
    response to CAR is quick to suggest that there is significant conflict
    between the Indigenous and non-Indigenous communities, it does not annotate
    or provide any comprehensive analysis of the polls it claims substantiate
    these areas of disagreement. By contrast, a poll conducted by Issues Deliberation
    Australia (IDA) - 'Australia Deliberates on Reconciliation' on 16-18 February
    2001 found significant changes in perceptions and increases in knowledge
    among non-Indigenous Australian participants as a result of this debate.

    The government's
    emphasis on finding ground also supports a tendency to prioritise its
    own agendas at the expense of those of Indigenous people. While overcoming
    Indigenous disadvantage is the only major point of agreement between the
    government and Indigenous leaders in regard to reconciliation, it does
    not follow that there is common assent to a practical reconciliation approach.

    This is a continuation
    of a pattern in the government's 'take it or leave it approach' to reconciliation
    which implies that Indigenous people are dependent on the benevolence
    of government rather than the establishment of an equal partnership
    in developing the terms of debate in regard to reconciliation and Indigenous
    policy.

    Misrepresenting
    progress towards practical reconciliation

    The Government's
    response to the CAR documents also list significant achievements of practical
    reconciliation across a range of socio-economic indicators. This list
    of 'progress' does not admit to the continuing gravity of Indigenous disadvantage
    as indicated by recent Census data and a range of other reports. Close
    examination of the gains from reconciliation for Indigenous people listed
    in Government's response to CAR against these latest findings suggest
    that the government is not providing a very clear delineation of outcomes
    for Indigenous people but a somewhat limited and even misleading view.

    Again, the absence
    of a long term commitment to overcoming Indigenous disadvantage, with
    short, medium and long term targets, masks the distinct lack of progress
    in addressing Indigenous disadvantage within a practical reconciliation
    approach. There is a continual need for Indigenous organisations to unravel
    the statements of the Government so that it can be held accountable for
    the real lack of achievement.

    Conclusion

    There are two features
    to the government's practical reconciliation approach that are of particular
    concern:

    • It marginalises
      Indigenous people from having any role in setting the priorities or
      agenda for Indigenous affairs, even under the rubric of 'partnership
      and agreement-making'.
    • The efforts of
      the Government have been directed towards the goal of cementing this
      reductive approach into place, including at the inter-governmental level
      with the consequence that the limited processes for accountability are
      not directed to those issues which the Government does not agree with.

    Chapter
    4: Measuring Indigenous disadvantage

    A significant development
    in the past year has been the development of a Draft framework for reporting
    on Indigenous disadvantage to be implemented across all Australian governments
    by the Council of Australian Governments (COAG). The draft framework has
    been developed by the Steering Committee for the Review of Commonwealth/State
    Service Provision. This chapter considers the implications of the draft
    reporting framework and assesses the adequacy of this approach when compared
    to relevant international human rights and development standards.

    A human rights approach to
    addressing Indigenous disadvantage

    Aborigines and Torres
    Strait Islanders are significantly disadvantaged in contemporary Australian
    society. This disadvantage represents a failure to provide in full measure
    the human rights to which Australian Indigenous people are entitled.

    Australia has ratified
    the International Covenant on Economic, Social and Cultural Rights (ICESCR)
    and is consequently bound to implement its provisions. A number of the
    provisions of ICESCR are directly relevant to the disadvantage suffered
    by Indigenous Australians, including rights to an adequate standard of
    living, including in housing and infrastructure; the right to the enjoyment
    of the highest attainable standards of physical and mental health; and
    an adequate standard of education.

    Article 2 (1) of
    ICESCR requires a State party to the Convention to undertake 'to take
    steps,…to the maximum of its available resources, with a view to
    achieving progressively the full realization of the rights recognized
    in the present Covenant by all appropriate means…'

    While this obligation
    'to take steps' means that the full realization of relevant rights may
    be achieved progressively, the taking of such steps cannot be delayed,
    and further, those steps should be deliberate, concrete and targeted as
    clearly as possible towards meeting the obligations recognized in the
    Covenant. An integral part of the obligations assumed by States in ratifying
    the Covenant is to develop strategies, identify indicators and determine
    benchmarks.

    The Social
    Justice Report 2000     identified five integrated requirements that
    need to be met to comply with these human rights obligations when seeking
    to redress Indigenous disadvantage and to provide sufficient government
    accountability. The five requirements are:

    • Making an unqualified
      national commitment to redressing Indigenous disadvantage;
    • Facilitating the
      collection of sufficient data to support decision-making and reporting,
      and developing appropriate mechanisms for the independent monitoring
      and evaluation of progress towards redressing Indigenous disadvantage;
    • Adopting appropriate
      benchmarks to redress Indigenous disadvantage, negotiated with Indigenous
      peoples, state and territory governments and other service delivery
      agencies, with clear timeframes for achievement of both longer term
      and short-term goals;
    • Providing national
      leadership to facilitate increased coordination between governments,
      reduced duplication and overlap between services; and
    • ensuring the full
      participation of Indigenous organizations and communities in the design
      and delivery of services.

    Integrating human rights standards
    with development goals and poverty eradication

    In recent years the
    United Nations has begun to integrate human rights principles into the
    whole of the Organisation's work, including the overarching development
    goal of poverty eradication.

    The United Nations
    Development Program's Human Development Report 2000 emphasises
    the mutually reinforcing relationship between human rights and human development,
    and highlights the need for innovative thinking, strategic planning and
    cultivating new partnerships in integrating human rights considerations
    into program formulation and implementation.

    The Report examines
    the importance of statistical indicators as powerful tools in the struggle
    for human rights. While statistics alone cannot measure the full dimension
    of rights, they can allow human rights to be more concretely relied upon
    in designing and evaluating policy. The UNDP has provided a framework
    for what the statistics should measure so that they adequately assess
    progress in the realization of human rights. They suggest that statistics
    must address the following three perspectives, simultaneously:

    • An average
      perspective:       What is the overall progress in the country, and how
      has it changed over time?
    • A deprivation
      perspective      :
      Who are the most deprived groups in society, disaggregated by income;
      gender; region; rural or remote location; ethnic group; or education
      level. How have the most deprived groups progressed over time?
    • An inequality
      perspective:       Measuring the disparity between various groups in society,
      and whether these disparities have widened or narrowed over time.

    Benchmarking is a
    useful tool for measuring whether adequate progress is being made in realising
    rights. Targets may not all be achievable immediately - they may be subject
    to progressive realization. States should identify appropriate indicators,
    in relation to which they should set ambitious but achievable benchmarks
    (ie intermediate targets) corresponding to each ultimate target, so that
    the rate of progress can be monitored and, if progress is slow, corrective
    action taken. Thus, indicators measure progress towards both intermediate
    and ultimate targets.

    Setting benchmarks
    enables government and other parties to reach agreement about what rate
    of progress would be adequate. The stronger is the basis of national dialogue,
    the more national commitment there will be to the benchmark. The need
    for debate and widely available public information is clear. If benchmarks
    are to be a tool of accountability, not just the rhetoric of empty promises,
    they must be, according to UNDP:

    • Specific, time
      bound and verifiable;
    • Set with the participation
      of the people whose rights are affected, to agree on what is an adequate
      rate of progress and to prevent the target from being set too low;
    • Reassessed independently
      at their target date, with accountability for performance.

    In 2002, this Report
    was supplemented by the release by the Office of the UN High Commissioner
    on Human Rights and the UNDP of Draft Guidelines on Poverty Alleviation.
    The objective of the guidelines is to provide practitioners involved in
    the design and implementation of poverty reduction strategies with operational
    guidelines for the adoption of a human rights based approach. The purpose
    is to focus on providing guidelines for the use of States that are integrating
    human rights into their poverty reduction strategies.

    The guidelines state
    that policies and institutions for poverty reduction should be based explicitly
    on the norms and values set out in the international law of human rights,
    and that the human rights approach to poverty reduction is essentially
    about empowerment. The most fundamental way in which empowerment occurs
    is through the introduction of the concept of rights itself. Poverty reduction
    then becomes more than charity, more than a moral obligation - it becomes
    a legal obligation.

    The guidelines in
    effect synthesise, develop and systematise the various approaches that
    have grown up in different agencies and in various reports and documents.
    The guidelines state that, in sum, a human rights approach has the potential
    to advance the goals of poverty alleviation in a variety of ways:

    a) By urging speedy
    adoption of a poverty reduction strategy, underpinned by human rights
    as a matter of legal obligation;

    b) By broadening
    the scope of poverty reduction strategies so as to address the structures
    of discrimination that generate and sustain poverty;

    c) By urging the
    expansion of civil and political rights, which can play a crucial instrumental
    role in advancing the cause of poverty reduction;

    d) By confirming
    that economic, social and cultural rights are binding international
    human rights, not just programmatic aspirations;

    e) By adding legitimacy
    to the demand for ensuring meaningful participation of the poor in decision-making
    processes;

    f) By cautioning
    against retrogression and non-fulfilment of minimum core obligations
    in the name of making trade-offs; and

    g) By creating
    and strengthening the institutions through which policy-makers can be
    held accountable for their actions.

    Relevant international
    norms, the views of the treaty monitoring committees, and developments
    in UN bodies in integrating human rights and poverty alleviation, are
    crucial elements in addressing Indigenous disadvantage in Australia.

    The Council of Australian
    Governments framework for addressing Indigenous disadvantage

    In April 2002, the
    Council of Australian Governments (COAG) decided to commission the Steering
    Committee for the Review of Commonwealth/State Service Provision (SCRCSSP)
    to produce a regular report against key indicators of Indigenous disadvantage.
    The key task of the report will be to identify indicators that are of
    relevance to all governments and Indigenous stakeholders and that can
    demonstrate the impact of program and policy interventions'.

    The Committee's draft
    framework has three logically related priority outcomes. They are:

    • safe, healthy
      and supportive family environments with strong communities and cultural
      identity;
    • positive child
      development and prevention of violence, crime and self harm; and
    • improved wealth
      creation and economic sustainability for individuals, families and communities.

    The framework then
    has a two tier set of indicators. These encompass 'headline indicators'
    of the higher order outcomes, and a second tier or 'strategic areas for
    policy' action. These emphasise the possible need for joint action within
    and across governments.

    Eight strategic areas
    for action have been identified. For each of these strategic areas, a
    few key indicators ('strategic change indicators') have been developed
    with their potential sensitivity to government policies and programs in
    mind. These strategic change indicators are not intended to be comprehensive
    - it is not possible to incorporate into the framework all of the factors
    that influence outcomes for Indigenous people. The strategic areas for
    action have been chosen on the evidence that action in these areas is
    likely to have a significant, lasting impact in reducing Indigenous disadvantage.
    The 8 areas, and the rationale for their choice, are briefly described
    below:

    1. Early child
    development and growth (prenatal to age 3)

     Early child development can have significant effects on physical
    and mental health in childhood and adulthood, growth, language development
    and later educational attainment.

    2. Early school
    engagement and performance

     Early school engagement is important for establishing a foundation
    for educational achievement, retention in secondary schooling, opportunities
    in employment and minimising contact with the justice system later in
    life.

    3. Positive
    adolescence and transition to adulthood

     Participation in school and vocational education; and community,
    cultural and recreational activities, encourages self-esteem and a more
    positive basis for employment. Such participation also assists in avoiding
    contact with the justice system.

    4. Breaking
    the substance abuse cycle

     Abuse of alcohol and other substances affects later physical and
    mental health, family and community relationships and contact with the
    justice system. Tobacco use is the greatest single contributor to poor
    health outcomes.

    5. Functional
    and resilient families and communities

     Functional and resilient families and communities influence the
    physical and mental health of adults and children and contact with the
    justice system. Problems in families and communities can lead to breaks
    in schooling and education, disrupted social relationships and social
    alienation.

    6. Building
    on the strength of Indigenous culture

     A strong Indigenous culture provides a foundation for strong families
    and communities, economic development, self-determination and community
    resilience, reduced youth alienation and reduced self-harm and suicide.

    7. Functioning
    environmental health systems

     Clean water, adequate sewerage, housing and other essential infrastructure
    are important to physical well being and health, nutrition and physical
    development of children.

    8. Economic
    participation

     Having a job or being involved in a business activity not only
    leads to improved incomes for families and communities (which has a
    positive influence on health, education of children, etc) it also enhances
    self-esteem and reduces social alienation.

    The lack of data,
    or inability to collect them, can explain why some otherwise desirable
    indicators are not included. However, where data are not currently (or
    only partly) available, but the indicator is important enough, an indicator
    may still be included as an incentive to improve data quality.

    Incorporating human rights
    into benchmarking reconciliation

    The previous section
    provides an outline of a significant range of measures that are relevant
    to benchmarking reconciliation in an international and domestic context.
    This material was the basis of discussion over two days at the workshop
    that I convened on 28-29 November 2002.

    The workshop proceeded
    with an overview of the issues discussed above, and particularly with
    an overview of the Draft framework for reporting on Indigenous disadvantage
    prepared by the Steering Committee for the Review of Commonwealth/State
    Service Provision (SCRCSSP). The participants then considered the following
    issues over the course of the workshop:

    • Indigenous
      participation in benchmarking.       How
      to ensure adequate Indigenous participation in the setting and monitoring
      of benchmarks and indicators;
    • Australia's
      obligations to progressively realize economic, social and cultural rights.
      How to
      ensure that Australia's human rights obligations to progressively realise
      the equal enjoyment of economic, social and cultural rights are reflected
      in monitoring frameworks and are being met.
    • Statistics.
      How to ensure that statistical collection is adequate to support the
      measuring of Indigenous disadvantage and the monitoring of progress
      for its progressive realization.
    • Building Indigenous
      community capacity and governance.       How to ensure that the objective
      of community capacity building and strengthening and supporting Indigenous
      governance is integrally linked to processes for addressing Indigenous
      disadvantage.
    • The draft indicative
      framework for measuring Indigenous disadvantage, as prepared by the
      Steering Committee.       In
      light of the previous discussion, an opportunity was provided to discuss
      the detail of the proposed indicative framework.

    The Workshop raised
    a number of serious concerns from a human rights perspective about the
    current development of indicators and benchmarks in respect of Indigenous
    disadvantage.

    First, the current
    draft framework for reporting on Indigenous disadvantage appears to have
    been developed with little reference to human rights standards, to Australia's
    international obligations, or to relevant international experience. Perhaps
    reflecting an emphasis on 'practical reconciliation', the Draft framework
    consequently fails to develop a series of indicators of Indigenous socio-economic
    disadvantage within a rights framework. Specific reference should particularly
    be made to the Draft Guidelines on Poverty Alleviation developed by the
    UNDP and the UN Office of the High Commissioner for Human Rights.

    Second, serious concerns
    were also expressed about the failure of the proposed indicators to adequately
    reflect Indigenous governance and capacity-building objectives. These
    matters require urgent attention before the Draft framework is approved
    by COAG. Given the apparent commitment to these issues by the federal
    Government, this is a test of the extent to which it is actually prepared
    to negotiate and enter into partnerships with Indigenous communities.

    Third, the present
    failure of the indicators to reflect traditional and subsistence economic
    activity and production is a major concern. It is likely to skew results
    against remote and outstation communities. Urgent attention needs to be
    given to the literature and research on these matters, and subsistence
    production and activity needs to be accommodated in the indicators.

    Fourth, the draft
    framework intends to provide a reporting tool on a national basis. However,
    it needs also to be able to be disaggregated to a sufficient level to
    provide meaningful and realistic results as a guide to policy review and
    formulation. The ability to disaggregate results on a regional basis would
    appear to be a high priority (perhaps by ATSIC region).

    Fifth, considerable
    concern was evident at the Workshop about the level and nature of consultation
    to date with Indigenous representatives, organizations and communities
    about the Draft framework, including the tight deadlines prevailing and
    whether the consultation has been wide and/or representative enough. There
    is the possibility that the Draft framework, rather than being perceived
    as a positive tool for partnership between governments and Indigenous
    peoples, will be met with suspicion and distrust, and seen as yet another
    government contrivance thrust upon Indigenous society.

    Conclusion

    Ultimately, the
    Steering Committee's framework must be acknowledged as a significant development.
    It is in fact the only positive form of monitoring and evaluation that
    the Government has provided for practical reconciliation. The overarching
    concern however is that if constructed and too narrowly focused on practical
    reconciliation, to the exclusion of other important factors it could be
    co-opted as a political tool for reinforcing and legitimizing what is
    ultimately a limited approach to Indigenous issues.

    Care must be taken,
    however, to ensure that the Steering Committee framework is not seen as
    a panacea or as intended to fulfill the monitoring role across the full
    range of issues. In my view, the greatest deficiency in this process
    is not the draft indicative framework per se but the fact that
    it currently exists in isolation from any other form of performance monitoring,
    particularly on identifying progress on important goals such as capacity
    building and governance reform, as well as identifying the unmet need
    and accordingly whether policy approaches are moving forward or in fact
    regressing.

    The Steering Committee's
    framework is a significant institutional development in measuring progress
    for Indigenous peoples. When assessed from the perspective of human rights
    standards and recent international developments integrating strategies
    for poverty eradication and development, it can be seen that it is a partial
    measure and needs to be built on with other processes and analysis.

    Chapter
    5: Indigenous women and corrections - A Landscape of Risk

    This chapter provides
    a broad overview of issues that Indigenous women face in criminal justice
    processes. Due to the general dearth of research and statistics it is
    necessarily broad in its focus, and points to areas requiring follow
    up action and further investigation. Despite these limitations, what
    is clear is that there is a crisis in the level and type of contact
    of Indigenous women with correctional systems in Australia. There is
    insufficient attention devoted to their circumstances when in custody
    and insufficient attention to the environmental factors which contribute
    to their being in custody at all. Indigenous women indeed live in 'a
    landscape of risk' and suffer at the crossroads of race and gender.

    Indigenous women
    are currently incarcerated at a rate higher than any other group in Australia.
    While Indigenous men face unacceptably high rates of incarceration, the
    rate for Indigenous women is significantly higher and is rising at a faster
    rate. The rising rate of over-representation of Indigenous women occurs
    in the context of intolerably high levels of family violence, over-policing
    for selected offences, ill-health, unemployment and poverty. Studies of
    Indigenous women in prison reveal experiences of life in a society fraught
    with danger from violence. The consequences to the community of the removal
    of Indigenous women are significant and potentially expose children to
    risk of neglect, abuse, hunger and homelessness. Indigenous women also
    serve comparatively shorter sentences, suggesting a general failure to
    employ the principle of imprisonment as a last resort. Once imprisoned,
    recidivism statistics also indicate that Indigenous women are at greater
    risk of returning to gaol.

    A statistical overview of
    Indigenous women in corrections

    a) Rates of incarceration
    of Indigenous women:     The number of Indigenous women incarcerated has
    increased from 104 in 1991 to 370 Indigenous women in 2001. This represents
    an increase of 255.8% over the decade. Similarly, rates of over-representation
    of Indigenous women are higher than for Indigenous men. For the June 2002
    quarter, Indigenous women were over-represented at 19.6 times the non-Indigenous
    rate compared to Indigenous men at 15.2 times.

    Other statistical
    reports also tell us the following about Indigenous women in corrections:

    • In New South
      Wales, Indigenous women represented 30 percent of the total female population
      in custody in October 2002 despite constituting only 2 percent of the
      female population of the state.
    • In Queensland,
      the growth of Indigenous female offenders in Queensland secure and open
      custody over the five year period from 1994 -1999 was 204 per cent,
      compared with an increase of 173 per cent for all female offenders in
      Queensland over the same period. In February 2001, Indigenous women
      represented 28.2 per cent of the total female population in Queensland
      open and secure centres.
    • In Victoria, of
      the 4886 prisoners received into Victorian prisons in the 2000-01 period,
      only 539 were women. Nevertheless, while female representation is low
      overall, Indigenous women are over-represented, constituting 8% of all
      female prisoners.
    • In Western Australia,
      reception data shows that for the period 1 July 2001 to 30 June 2002,
      Aboriginal women represented 51.7 per cent of all women received into
      prison despite constituting 3.2 per cent of the female population of
      Western Australia.
    • In the Northern
      Territory, Indigenous women constituted 57 percent of the total female
      prison population and 26 per cent of the female population of the Northern
      Territory.

    b) Recidivism
    rates among Indigenous women:     National statistical data indicates
    that nearly 3 in every 4 (76 percent) of all Indigenous prisoners had
    been previously imprisoned. In New South Wales, 'almost 85% of Aboriginal
    women in prison have previously been in custody compared with 71% of non-Aboriginal
    women.' Recidivism rates for Indigenous compared to non-Indigenous women
    are higher in all jurisdictions. For example, preliminary findings of
    a Victorian study on the prison population found a rate of re-offending
    of 71 percent among Indigenous women compared to a rate of 61 percent
    average in 2000 among the female population.

    c) Types of crime
    committed by Indigenous women:     Statistics on crimes committed by Indigenous
    women indicate that there is a considerable degree of variation in criminal
    behaviour across jurisdictions and within regions. There is also a steady
    and significant increase in most categories of offences. Thus, there were
    100% more Indigenous women in prison for homicide related offences in
    2001 than 1994, 127% more for assault and related offences, 440% more
    for robbery, and so on. The increases were reasonably comparable across
    many offence categories, although of particular significance has been
    the increase in imprisonment for robbery offences, which outstripped all
    other changes.

    Nationally, Indigenous
    women comprise nearly 80% of all cases where women are detained in police
    custody for public drunkenness. Similarly, by comparison to non-Indigenous
    women, Indigenous women are more likely to be incarcerated for violence.
    There has been a past general trend of low numbers of Indigenous people
    imprisoned for drug offences. However, survey data from New South Wales
    and Victoria indicate wide use of drugs including narcotics. A further
    significant factor in the incarceration of Indigenous women is fine defaulting.

    d) Over-policing:
    A further concern about Indigenous women's contact with criminal justice
    processes relates to the potential over-policing of Indigenous women.
    For example, in New South Wales, the Select Committee into the Increase
    in Prison Population found in 2001 that the most significant contributing
    factor to increases in the rates of incarceration of Indigenous women
    was the increase in the remand population. There was no evidence to suggest
    that an in increase in actual crime accounted for the prison increase,
    although increases in police activity and changes in judicial attitudes
    to sentencing were also important.

    e) Sentencing
    patterns for Indigenous women:     Indigenous women tend to receive shorter
    sentences than non-Indigenous women. General rates of over-representation
    tend to indicate that Indigenous women are not being provided with non-custodial
    sentencing options. Shorter sentences also appear to be linked to high
    rates of incarceration for public order offences.

    f) Characteristics
    of Indigenous women who are imprisoned:     In general Indigenous women
    in gaol are slightly younger than non-Indigenous women. There are no national
    figures for Indigenous women prisoners with children, but a majority of
    incarcerated women are mothers.

    Indigenous women
    also often enter custody with poor physical or mental health. Research
    in Victoria has revealed that many women self harm soon after release
    from prison. This includes drug overdose & other types of self harm.
    In NSW in comparison to a non-Indigenous woman, an Aboriginal woman is:

    • Four times more
      likely to be murdered;
    • More than twice
      as likely to be the victim of sexual assault, or sexual assault against
      children;
    • Four times more
      likely to be a victim of assault;
    • Seven times more
      likely to be a victim of grievous bodily harm.

    Accompanying these
    factors is a strong argument that Aboriginal women receive poor responses
    from police to complaints about violence and other disturbances. One reason
    suggested for under-policing in relation to alleged assaults is a perception
    that family violence is part of Aboriginal culture or a 'tribal norm.'
    Another connected reason is the view that Aboriginal women are undeserving
    of police protection. Recognition of the causes of violence is crucial
    to developing solutions.

    While there are
    limits on the statistics that are available on Indigenous women in corrections,
    there is sufficient data to indicate serious problems underlying Indigenous
    women's contact with corrections. The reasons derive in part from a combination
    of the ongoing impact of colonisation on the culture, laws and traditions
    of Indigenous communities, poverty and other forms of socio-economic disadvantage.
    This manifests in many ways including alcohol and drug use, homelessness
    and violence. Research has identified a strong correlation between imprisonment
    of Indigenous women and the experience of sexual assault and separation
    from family. The impact of alcohol related crime, and increasingly in
    some jurisdictions, drug related crime requires further investigation.

    Poverty and disadvantage
    are widely recognised indicators for offending behaviour. There is a correlation
    between the highest rates of imprisonment of Indigenous people in the
    most disadvantaged areas of New South Wales, although further research
    is needed to confirm the links.

    Experiences of Indigenous
    women in corrections

    • Disruption
      to family life:       One of the greatest impacts of imprisonment on Indigenous
      women is the disruption to the family life of children through taking
      mothers into custody. This impacts on the women, the children and the
      community who remain to take care of the children.
    • Pregnancy:
      Pregnant women need prenatal support, support during labour and access
      to family and their baby after birth. Indigenous women in detention
      often present with compromised health. When these women give birth their
      children may require hospitalisation in intensive care units until they
      are stabilised. It is very important that the mothers of those babies
      are able to access their children to breastfeed where possible, bond
      and care for the baby.
    • Provision of
      health care:
      Where women are treated in hospitals outside the correctional facility,
      it is important to prove a standard of care which meets requirements
      for privacy. Protocols between the correctional institution and hospital
      for dealing with inmates could prevent this experience for women. A
      secure area where women could be received and treated within the hospital
      may alleviate some of the problems.
    • Visits with
      Family and Friends:       Families are often not aware of the exact location
      of prisoners, or of conditions attached to visits. The need for liaison
      officers to reach communities with information about their incarcerated
      family members was stressed.
    • Disruption
      to cultural responsibilities and dislocation from community:
      A recent survey of Aboriginal women incarcerated in Sydney gaols found
      that 73% felt they would have the support of their family and community
      on release, but 28% either felt that would not have this support or
      were not sure. An individual woman's sense of shame can be a powerful
      block to accessing vital support. In some instances women may also be
      facing payback and may not tell authorities about it, and may become
      itinerant as a result.
    • Dislocation
      from Services:
      Indigenous women experience dislocation from services as a result of
      incarceration. This may be experienced as loss of housing and loss of
      medical or dental programs among others. Indigenous women in remote
      communities suffer particular dislocation from services.
    • Housing:
      Chronic homelessness and the loss of accommodation due to incarceration
      creates one of the most urgent needs of Indigenous women post-release.
      Consultations with Indigenous women in Darwin indicated that a major
      issue faced by women incarcerated is the knowledge that they may lose
      their homes if rental payments are not maintained.

    Addressing the needs of Indigenous
    women in corrections

    Election driven law
    and order campaigns primed to drive up incarceration, a lack of government
    action to implement the recommendations of the Royal Commission into Aboriginal
    Deaths in Custody and lack of judicial activism to implement the recommendations
    of the Royal Commission on non custodial sentences are some obvious and
    ongoing causes of over representation.

    Criminal conduct
    by Indigenous women must be viewed as a symptom and offenders as the casualties
    of colonisation. Links must be drawn and holistic models developed and
    supported which address the connections between culture, drug use, alcohol
    use, separation from family, violence, poverty, spiritual needs, housing,
    health, boredom, race discrimination and gender discrimination.

    Indigenous people
    are constructing, reconstructing and participating in programs and models
    for dealing with criminal justice issues. These include community policing,
    night patrols, Community Justice Panels and Groups, circle sentencing,
    and participation in courts such as the Nunga court (SA), Murri court
    (Qld) and Koori court (Vic).

    Programs have now
    been developed and evaluated, particularly around family violence for
    women, men and children, and Indigenous participation in drug court trials.
    These indicate that it 'is very important to give responsibility back
    to the community, through the case management, future planning and post
    release programs and services. The community must also be properly supported
    in these initiatives'.

    Indigenous people
    have looked to new models and in so doing, look to the past for answers.
    One example is the development of restorative justice models to deal with
    violent behaviour within communities. Restorative justice models engage
    community, victim and offender. The victim's rights to safety and security
    are paramount, and the participation of Indigenous Elders is essential.
    This approach has been considered by the Indigenous Services Unit of New
    South Wales Corrective Services with the view of developing a similar
    initiative for Aboriginal women in New South Wales.

    Indigenous women
    are disadvantaged by the lack of services designed for them. This is an
    example of intersectional discrimination. It is a consequence of a rights
    and policy structure which identifies groups of needs and rights holders
    such as women and Indigenous people, but fails to provide for the needs
    of people who dwell at the intersection of these groups.

    There should also
    be recognition that community extends into gaols. Elders recognised this
    long ago and have been visiting the large numbers of incarcerated Indigenous
    people for many years. The many successful programs (such as CDEP) now
    running in communities could be adapted for Indigenous women in gaol.
    For many women, gaol is a time of reflection and a time where culturally
    appropriate programs would be extremely beneficial.

    By contrast, there
    is an increasing understanding of the vulnerability of Indigenous women
    to the impact of a lack of post-release resources. Evidence indicates
    that women are at serious risk of self-harm and harm from others in the
    period immediately after incarceration. It is important that rehabilitation
    be undertaken in prison and continued on release. Rehabilitation is important
    of itself, but it is also crucial in preventing recidivism.

    Issues that pre- and post-release
    programs should address include:

    • Housing issues:
      Housing has been identified as the most important basic need of women
      leaving gaols. Some women may be able to access public housing, but
      this needs to be in place before their release date. Others may not
      be eligible due to previous problems with the department. These women
      need support with at least temporary accommodation until they are established
      and can attempt to access to private housing market. Transition accommodation
      is perhaps the most important service for women, especially if they
      have children.
    • Dealing with
      Violence:
      Effective pre and post release programs should include community based,
      Indigenous specific programs to help women deal with the effects of
      violence and to help women develop alternative strategies for coping
      with violence in the future. People require protection from violent
      behaviour and alternative structures for prevention and punishment of
      violent behaviour which provide more than imprisonment with all its
      risks and consequences. Pre- and Post-release programs should include
      assistance for past injuries suffered by women, and strategies for dealing
      with these issues in the future. Where drug and alcohol use, associated
      with incidents of violence has become problematic programs should address
      these needs.
    • Children and
      Families:
      Women need support to maintain contact with their children while they
      are incarcerated. Where that is not possible, they need to be provided
      with information as to the well being of their children. Women need
      support when they resume contact with their children. They need practical
      advice on how to deal with family court procedures and departments of
      community services.
    • Kinship Obligations:
      Aboriginal women in custody are ever-conscious of the impact their absence
      has on the day to day lives of their families and children. This creates
      stress on them during the period of their custodial sentence, and creates
      additional stresses on them when they return home. Programs which are
      sensitive to the kinship obligations of Indigenous women and supportive
      of these roles are important. Indigenous women have identified help
      with family and community relationships as an issue they want help with.
      Some women may face another form of dispossession because of the impact
      of violent relationships on their lives. They may not be able to return
      to their home community, as a result of their own or other people's
      violence. In either scenario, women need support to re-enter potentially
      volatile situations. Pre- and post-release programs need to be sensitive
      to kinship obligations, and to support Indigenous women to work with
      their customary obligations and to positively re-integrate into the
      community in which they will live.
    • Financial Issues,
      Employment, Education and Training:
      There is an absence of consistent data in relation to educational background
      of prisoners available. On the issue of employment and education programs
      within the prison Margaret Cameron of the Australian Institute of Criminology
      notes that 'no formal consideration has been given to the needs of ATSI
      women.' A recent survey of NSW women noted that 84% of the women said
      they would like to work on release.
    • Access to health
      services:
      The high incidence of health problems among Aboriginal women is an indicator
      that pre and post release programs should target the health needs of
      Aboriginal women. The high incidence of deaths in custody attributable
      to natural causes indicates an urgent need for better health care while
      in custody, and better health care on release. There is also a specific
      need to address drug abuse among Indigenous women.

    Chapter
    6: International developments in the recognition of the rights of Indigenous
    peoples

    This chapter examines
    the current status of the recognition of the human rights of Indigenous
    peoples at the international level and in the processes of the United
    Nations.

    Indigenous peoples in international
    law - A history of exclusion

    There are two main
    aspects to Indigenous peoples' struggle for recognition at the international
    level. The first concerns the participation of Indigenous peoples or put
    differently, the struggle for recognition of our legitimate place at the
    negotiating table. The second is the struggle for the recognition and
    protection of Indigenous peoples' distinct rights in international law.

    The two are inter-related
    and cannot be separated. Indeed they have operated in tandem for the past
    thirty years, with gains in participation at the international level influencing
    the development of standards relating to Indigenous peoples. The struggle
    for participation at the international level and the recognition of Indigenous
    rights has at its core the same purpose. 'The goal of Indigenous Peoples
    is to act and be treated as subjects - and not as objects - in international
    law.'

    Historically, Indigenous
    peoples have been denied such involvement and protection in international
    law. By the nineteenth and early twentieth century, international law
    upheld a system dominated by predominately western, colonizing nations
    that protected the integrity of the territorial gains made through colonization.
    This approach has been reinforced through the structures and processes
    of the League of Nations and its successor, the United Nations.

    For Indigenous peoples,
    the fact that international law is primarily determined by those who have
    colonized their lands and subjugated them has operated as the primary
    obstacle to the consideration of Indigenous issues at the international
    level until into the 1970's and of any recognition of Indigenous peoples
    as subjects at international law until into the 1980's. It clearly remains
    the primary obstacle to the full realization of Indigenous human rights
    at the international level today.

    The basic United
    Nations texts and treaties, for example, contain no specific or explicit
    reference to Indigenous populations. Article 30 of the Convention on
    the Rights of the Child     today remains the sole human rights treaty
    provision that specifically refers to Indigenous peoples. Up until the
    1970's, Indigenous issues were generally considered as part of a broader
    focus on human rights problems such as forced labour, slavery or through
    a focus on the human rights situation in a particular country or region.
    The one international agency that had devoted specific attention to Indigenous
    peoples up to the 1970s was the International Labour Organisation (ILO).

    The 1970's can generally
    be seen as the turning point at which the international community began
    to pay more intensive and sustained attention to the situation of Indigenous
    peoples. In 1971, a study on racial discrimination submitted to the Sub-Commission
    on the Prevention of Discrimination and the Protection of Minorities (the
    Sub-Commission) included a recommendation that a specific study be conducted
    on the situation of the problem of discrimination against Indigenous populations.
    Such a study was authorised by the Economic and Social Council (ECOSOC)
    of the United Nations in 1971 and was commenced by Jose R. Martinez Cobo
    in 1972. The Cobo report, as it is commonly known, was prepared over the
    next decade and was submitted to the Sub-Commission in 24 instalments
    between 1981 and 1984 with its conclusions and final recommendations compiled
    in a consolidated volume in 1987.

    The 1970's also saw
    the international mobilization of Indigenous peoples with the support
    of non-government organisations (NGO's). In response to these calls and
    the preliminary findings by Cobo, the Working Group on Indigenous Populations
    (WGIP) was established at the United Nations in 1982 as a forum to specifically
    address the issues of Indigenous peoples.

    The Working Group on Indigenous
    Populations - from exclusion to participation at the international level

    The Working Group
    on Indigenous Populations was established by the Economic and Social Council
    (ECOSOC) of the United Nations in 1982. The Working Group comprises five
    independent experts who are to implement the Working Group's twofold mandate.

    First, they are required
    to 'review developments pertaining to the promotion and protection of
    the human rights and fundamental freedoms of Indigenous populations' and
    accordingly to submit conclusions and recommendations to its parent body,
    the Sub-Commission on the Prevention of Discrimination and the Protection
    of Minorities (recently renamed the Sub-Commission on the Promotion and
    Protection of Human Rights). Second, they are required to 'give special
    attention to the evolution of standards concerning the rights of Indigenous
    populations, taking into account both the similarities and the differences
    in the situations and aspirations of Indigenous populations throughout
    the world'.

    The Working Group
    was created at the lowest possible level of the United Nations. Its influence
    over the first twenty years of activity, however, has far outstripped
    its operational level within the United Nations.

    The contribution
    of the Working Group in shaping the consideration of Indigenous issues
    at the United Nations has been most felt in three ways. First, its historic
    - and ongoing - significance remains the opening up of international processes
    to the participation of Indigenous peoples. The flexible processes for
    participation of Indigenous organizations in the Working Group's deliberations
    set a precedent which has been followed by some UN agencies and international
    organizations.

    Second, the Working
    Group has been highly successful in influencing the agendas and advising
    the various agencies of the UN on their approaches to Indigenous peoples.
    Nearly every activity of the UN relating to Indigenous peoples since 1982
    can be traced back to the Working Group's deliberations and recommendations
    in some way. This achievement is not purely an historic one. It has an
    ongoing dimension with the Working Group continuing to make an important
    contribution to international developments and the evolution of standards.

    Third, the Working
    Group has fulfilled an enormously valuable standard setting role under
    the second element of its mandate. At its eleventh session in July 1993
    the Working Group agreed on a final text for the Declaration on the
    Rights of Indigenous Peoples    . While the draft Declaration has floundered
    in negotiations in the Government controlled Working Group on the draft
    Declaration, it has already been of great normative value. The consistent
    elaboration of Indigenous peoples' claims, particularly in relation to
    cultural identity, self-determination, informed consent and self-identification,
    has influenced the policy approaches of international agencies such as
    the World Bank, UNESCO, UNDP and World Health Organisation.

    It was also a major
    influence in the International Labour Organisation's decision to revise
    ILO Convention 107 and develop ILO Convention 169, titled Convention
    concerning Indigenous and tribal peoples in independent countries    ,
    in 1989. United Nations Human rights treaty committees have also responded
    to the advocacy of Indigenous peoples' rights through the processes of
    the Working Group. Despite the completion of the draft Declaration, the
    Working Group has yet to exhaust its standard setting function.

    Commitments to developing
    partnerships with Indigenous peoples - From Rio and Vienna to the International
    Decade of the World's Indigenous people

    By the early 1990s,
    governments and the United Nations began to commit to developing partnerships
    with Indigenous peoples at the international level. On 18 December 1990
    the General Assembly of the United Nations proclaimed 1993 as the International
    Year of the World's Indigenous People.

    Around the same time,
    the role of Indigenous peoples in addressing environmental and sustainable
    development issues became increasingly recognized in a variety of international
    processes. Indigenous issues and the importance of the participation of
    Indigenous peoples were given prominent attention at the United Nations
    Conference on Environment and Development held in Rio de Janeiro in 1992.
    Since the Rio Summit a number of legal instruments on the environment
    have been developed which are relevant to Indigenous peoples. These include
    the United Nations Framework Convention on Climate Change, the Convention
    to Combat Desertification, and the establishment of the United Nations
    Forum on Forests. Perhaps most notably, the Convention on Biological Diversity
    was adopted in Nairobi in 1992.

    Indigenous peoples'
    rights also received significant attention at the second World Conference
    on Human Rights, which was held in Vienna in June 1993. In December 1993
    the General Assembly acted upon the recommendation of the Vienna Conference
    and proclaimed the International Decade of the World's Indigenous People.
    The Decade is to run from 10 December 1994 to 9 December 2004 and the
    theme of the Decade is 'Indigenous people: partnership in action'. The
    General Assembly set the following five, inter-related objectives for
    the International Decade, which are:

    • The strengthening
      of international cooperation for the solution of problems faced by Indigenous
      people;
    • The education
      of Indigenous and non-Indigenous societies concerning the situation,
      cultures, languages, rights and aspirations of Indigenous people;
    • The promotion
      and protection of the rights of Indigenous people and their empowerment
      to make choices which enable them to retain their cultural identity;
    • The implementation
      of recommendations pertaining to Indigenous people of all high-level
      international conferences; and
    • The adoption of
      the draft United Nations declaration on the rights of Indigenous peoples
      and the further development of international standards for the protection
      and promotion of the human rights of Indigenous people.

    The International
    Decade provides a framework for the strengthening of activities relating
    to Indigenous issues across the UN. It is a strong indication of the priority
    which the international community states it attaches to addressing Indigenous
    peoples' issues through international cooperation and to strengthening
    the participation of Indigenous peoples at the international level in
    issues that affect them.

    Action at the international
    level has, however, been slow in implementing these commitments and in
    addressing the objectives of the Decade. The High Commissioner for Human
    Rights noted in 1999 that there has been 'an evolution over the last five
    years in the development of policy guidelines, programme activities, consultation
    mechanisms, specific funding and staff resources being dedicated to Indigenous
    peoples issues' in many United Nations agencies and that accordingly,
    the objectives of the Decade were beginning to be met by a growing number
    of UN agencies.

    But there have also
    been ongoing problems for implementation of the Decade flowing from 'the
    limited human resources available and the lack of funding for the activities
    themselves' and limited commitment from governments.

    'You have a home at the United
    Nations' - The creation of the Permanent Forum on Indigenous Issues

    A major focus of
    the Decade has been on the proposal to establish a permanent forum within
    the United Nations to address the 'striking absence of a mechanism to
    ensure regular exchange of information' and the participation of Indigenous
    peoples. A number of high level reviews relating to the Decade have supported
    the establishment of a permanent forum as a matter of priority and as
    a main way of meeting the objectives of the International Decade.

    The Permanent Forum
    on Indigenous Issues was established by the Economic and Social Council
    on 28 July 2000. Significantly, it was established as a subsidiary organ
    of the Council. In practical terms, this places the Permanent Forum at
    the highest level of the United Nations possible without amendment to
    the UN Charter.

    As an advisory body
    to the Economic and Social Council, the Permanent Forum has a wide-ranging
    role to discuss Indigenous issues that fall within the mandate of the
    Council. This includes issues relating to economic and social development,
    culture, the environment, education, health and human rights. Its function
    is to:

    a) Provide expert
    advice and recommendations on Indigenous issues to the Council, as well
    as to programmes, funds and agencies of the United Nations, through
    the Council;

    b) Raise awareness
    and promote the integration and coordination of activities relating
    to Indigenous issues within the United Nations system; and

    c) Prepare and
    disseminate information on Indigenous issues.

    The Permanent Forum
    is to report annually to the Council on its activities, at which time
    it can make any recommendations on Indigenous issues. The Permanent Forum
    met for its inaugural session in New York from 13-24 May 2002. At this
    early stage there are four main factors about the Permanent Forum that
    warrant comment in relation to the objectives of the International Decade.

    First is to note
    the sheer scope of the role of the Permanent Forum and its potential to
    transform consideration of Indigenous issues at the international level.
    The potential of the Permanent Forum is that it will be able to mobilise
    the entire United Nations system to addressing the circumstances and issues
    of Indigenous peoples the world over. It is ultimately a powerful monitoring
    mechanism to hold these agencies accountable for their performance on
    Indigenous issues.

    The second feature
    of the Permanent Forum is that it offers unprecedented scope for Indigenous
    peoples to participate in the programming and policy directions of the
    agencies of the United Nations.

    The third feature
    of the Permanent Forum is that it has the potential to mainstream the
    Indigenous rights agenda within the United Nations system. Human rights
    are but one of several mandated areas which the Permanent Forum is to
    consider. Despite this, they have already begun to occupy a central position
    in the considerations of the Forum. The difficulty which exists for the
    Permanent Forum and the UN agencies at this time is that there is still
    no universal set of principles setting out the rights of Indigenous peoples
    which could be applied to the activities and programmes of all UN agencies.
    At present, the extent to which UN agencies take account of Indigenous
    rights varies enormously. The Permanent Forum joined the chorus of voices
    calling for the swift adoption of the draft Declaration on the Rights
    of Indigenous Peoples within the framework of the International Decade
    to provide greater consistency in this regard.

    The fourth feature
    of the Permanent Forum is that the limitations of what it can achieve
    will primarily be set by the human, technical and financial resources
    which are made available to it. The issue of resourcing remains the primary
    obstacle to the success of the Permanent Forum.

    The Permanent Forum
    has the potential to revolutionise the way that the United Nations engages
    with Indigenous peoples and addresses their circumstances. It is clear,
    however, that it is a massive undertaking that requires significant technical,
    human and financial resourcing from the United Nations and governments
    of the world. Such support has not been forthcoming to date. Until such
    support is forthcoming it is not possible to argue that the Permanent
    Forum implements several of the key objectives of the International Decade.

    Recognising and protecting
    the rights of Indigenous peoples - The Special Rapporteur, Durban and
    the draft Declaration

    Despite the extraordinary
    variety of achievements in the recognition of Indigenous rights and the
    participation of Indigenous peoples at the international level over the
    past thirty years there remains a great distance to be travelled for international
    law to provide full and non-discriminatory recognition of Indigenous peoples'
    rights and for the objectives of the International Decade to be met.

    Since 2000, there
    have been three main processes which are related to these objectives of
    the International Decade for the World's Indigenous People. They are the
    establishment of a Special Rapporteur on Indigenous people by the Commission
    on Human Rights; the Durban World Conference Against Racism; and the ongoing
    negotiations on the draft Declaration on the Rights of Indigenous Peoples.

    Concerned at the
    lack of progress in adopting standards on Indigenous rights and the consequent
    lack of specific protection of Indigenous peoples, the Commission on Human
    Rights acted on 24 April 2001 to create the position of Special Rapporteur
    on the situation of human rights and fundamental freedoms of Indigenous
    people.

    The establishment
    of the Special Rapporteur joins the Permanent Forum as one of the most
    important achievements of the International Decade. Like the Permanent
    Forum, issues of resourcing will determine the scope of work that can
    be undertaken by the Rapporteur and the extent to which the potential
    of the Rapporteur's role is turned into a reality. The limitations of
    the Special Rapporteur are demonstrated by the fact that he is currently
    only funded to undertake two country visits each year.

    The advances that
    have been made during the course of the International Decade and the great
    challenges that remain for Indigenous peoples are perfectly illustrated
    by the consideration of Indigenous issues in the Durban Declaration and
    Programme of Action of the World Conference Against Racism, Racial Discrimination,
    Xenophobia and Related Intolerance. The World Conference was held in Durban
    South Africa in August-September 2001. The documents of the World Conference
    demonstrate the positive recognition that Indigenous issues have achieved
    over the course of the International Decade. But they also reveal the
    major limitations that remain in the treatment of Indigenous issues. Overall,
    it cannot be said that the World Conference took advantage of what was
    described in the preamble of the Durban Declaration as 'a unique opportunity
    to consider the invaluable contribution of Indigenous peoples… to
    our societies, as well as the challenges faced by them, including racism
    and racial discrimination.'

    The Durban World
    Conference documents ultimately defer consideration of controversial issues
    relating to the recognition of Indigenous rights to the annual sessions
    of the inter-sessional, open-ended working group on the draft Declaration
    on the Rights of Indigenous Peoples. This working group has made little
    progress to date, having adopted just 2 of the 45 articles of the draft
    Declaration in its first seven years.

    The central issue
    in the negotiations on the draft Declaration is the unwillingness of States
    to accept that Indigenous peoples have an unqualified right to self-determination,
    as set out in Article 3 of the draft Declaration. Australia has played
    a vital role in this process, being one of the most vocal and oppositional
    countries during the debates since 1997.

    There is an increased
    sense of urgency for States to adopt the draft Declaration within the
    timeframe of the International Decade. There remain two, possibly three,
    sessions of the working group for this to be achieved. At this point it
    is difficult to see how this can be achieved when States are unwilling
    to accept the text of Article 3 of the Declaration, which adopts common
    Article 1 of the international covenants. It can only be hoped that the
    oft-repeated commitment of States to work towards the finalisation of
    the Declaration within the framework of the International Decade will
    result in genuine engagement with the issues and with Indigenous peoples
    rather than the outright, inflexible opposition that has characterised
    debate in the first seven years of the working group.

    Clarifying the complementary
    roles of the various mechanisms addressing Indigenous issues within the
    United Nations - emerging challenges

    Despite the clearly
    unsatisfactory progress in recognising Indigenous human rights through
    the adoption of a universal declaration, it is quite possible that the
    final years of the International Decade of the World's Indigenous People
    could see the dismantling of some of the machinery now in place within
    the United Nations for addressing Indigenous human rights issues. When
    establishing the Permanent Forum the ECOSOC mandated a review of 'all
    existing mechanisms, procedures and programmes within the United Nations
    concerning Indigenous issues'. The Australian Government has made clear
    that it will use this review to argue for the dismantling of the Working
    Group on Indigenous Populations, on the basis of duplication with the
    roles and functions of the Permanent Forum and Special Rapporteur.

    No one would disagree
    with the suggestion that all United Nations mechanisms should be efficient
    and effective and that they should avoid duplication and overlap. The
    Government's suggestion that there currently exists 'clear overlap' between
    the various UN mechanisms dealing with Indigenous issues is, however,
    contentious.

    A comparison of the
    mandates of the various existing mechanisms reveals that:

    • the functions
      of the working group on the draft Declaration does not overlap with
      those of the other mechanisms;
    • the Permanent
      Forum on Indigenous Issues has the potential to overlap with the functions
      of the other mechanisms in only a residual manner;
    • on initial inspection,
      it would appear that there is some level of overlap in the roles of
      the WGIP and the Special Rapporteur on Indigenous issues. The roles
      of the two mechanisms are, however, quite distinct and contain significant
      differences.

    Overall, there are
    significant differences and distinct advantages to the roles of both the
    Working Group and the Special Rapporteur. Both mechanisms are necessary
    for the adequate protection of Indigenous rights at the international
    level. The Australian government's suggestion that there is a 'clear overlap'
    in functions does not withstand scrutiny.

    In my view, there
    are two significant reasons why the human rights mechanisms should not
    be 'rationalised' by discontinuing the Working Group. Each indicates that
    such a decision would be premature.

    First, there is currently
    a crisis in the UN human rights mechanisms dealing with Indigenous issues
    because they are under-resourced. This under-resourcing is most notable
    in relation to the Permanent Forum and Special Rapporteur. Put simply,
    these mechanisms have not as yet been provided with sufficient resources
    - human, technical and financial - to ensure that they can appropriately
    acquit their mandates and be fully operational. It would be disingenuous
    to abolish an established, functioning mechanism (like the WGIP) when
    the mechanisms which theoretically would take its place do not have full
    operational capacity (although I have argued that they in fact fulfill
    a different role in any event).

    Second, any perception
    that the activities of the Working Group have stalled or run their course
    has to be considered in light of the progress of governments in considering
    the draft Declaration. Ideally, the Working Group would have a role as
    an oversight or review mechanism on the implementation of the draft Declaration.
    This is in fact the operational structure of the Working Group on Minorities,
    established in 1995.

    While the recent
    activities of the Working Group on Indigenous Populations indicate that
    it remains a vibrant mechanism and that it has not exhausted its standard
    setting role, the example of the Minorities working group indicates the
    potential for re-invigorating and strengthening further the protection
    of Indigenous human rights at the international level through the Working
    Group. The main obstacle to such strengthened protection is not any inherent
    factor in the Working Group's structure or mandate, it is the tardiness
    and inflexibility of States and their failure to finalise negotiations
    and approve a draft Declaration on the Rights of Indigenous Peoples.

    Conclusion and recommendations
    - Meeting the objectives of the International Decade

    At the time of writing,
    there were still more than two years remaining in the International Decade
    for the World's Indigenous People. There have been some significant achievements
    in the Decade to date, most importantly the establishment of the Permanent
    Forum on Indigenous Issues and the appointment of a Special Rapporteur
    on the situation and fundamental freedoms of Indigenous people. These
    mechanisms, however, continue to face serious issues relating to their
    capacity and budget.

    There remains much
    work to be undertaken in order to meet the objectives of the International
    Decade. Indigenous peoples remain greatly concerned at the overall lack
    of achievement during the Decade to date and at the fragile status of
    those measures that have been realised. It is noted that the Australian
    government plays an active and vital role at the United Nations on issues
    related to the protection and promotion of Indigenous human rights. For
    this reason, and in accordance with my statutory obligations, I conclude
    this chapter with the following recommendations to the federal Government.

    Recommendations
    on international Indigenous issues

    That, in accordance
    with the objectives of the International Decade of the World's Indigenous
    People and the Programme of Activities for the International Decade, the
    Federal Government:

    1) Continue to
    support the provision of adequate resourcing from the United Nation's
    Regular Budget to the Permanent Forum on Indigenous Issues.

    2) Contribute to
    the Voluntary Fund for the Permanent Forum in order to fund, or partially
    fund, at least one recommended activity from the Permanent Forum's first
    report. The Aboriginal and Torres Strait Islander Commission should
    match the contribution of the Government to the Voluntary Fund.

    3) In recognition
    of the importance of the Working Group's ongoing role in facilitating
    the elaboration of standards on Indigenous human rights, support the
    continued existence of the Working Group on Indigenous Populations and
    seek to strengthen the mandate of the Working Group by providing it
    with an oversight role on the Declaration on the Rights of Indigenous
    Peoples once it is finalised by the Inter-sessional ad-hoc working group
    of the Commission on Human Rights on the draft Declaration and approved
    by the General Assembly.

     

    19
    March 2003.