Castan Centre for Human Rights Law

"MABO TEN YEARS ON: SMALL STEP OR GIANT LEAP?"

SECOND ANNUAL LECTURE

SENATOR ADEN RIDGEWAY
3RD JUNE, 2002

I would like to begin by acknowledging the Kulin Nation, the Traditional Owners of the land we meet on today, and to thank them for allowing me to speak on their country.

I would also like to thank the Castan Centre for Human Rights Law for giving me the honour of delivering this speech to commemorate the ten-year anniversary of the Mabo decision.

In particular, I want to pay tribute to a man in whose honour this lecture is being given, Mr Aaron Ronald Castan, Queen's Counsel, who but for his untimely death, would, in time to come, have become a Chief Justice of the High Court of Australia.

Ron, as he was commonly known, was a man of outstanding integrity who recognised that the Australian legal system was there to represent all, not just a few. He recognised the need for tolerance but I think beyond that he also understood, in furthering the principles of compassion and decency, that Australia's legal system needed to better understand and embrace difference, particularly the lives of Indigenous Australians.

It was for this reason and his profound understanding of the law which enabled him to lead the historic Mabo case and play such a crucial role in the establishment of the Federal Racial Discrimination Act.

I came to know Ron, through his work during the Mabo, the Land Fund and Wik debates. It became clear to me that he had devoted a significant part of his life to furthering the rights of Indigenous people in this country. I admired him for this commitment, his exceptional intelligence, humility and innate goodness - traits that I think are rare when found in one person.

As a young man, Ron, often spoke of his naïve understanding of Aborigines. He re-counted lectures by Professor Bill Stanner, who spoke of the plight of the original Australians, describing that as the 'cult of disremembering' and 'the great Australian silence'. He was a man driven by his own Jewish history and upbringing. In his own wise words he said:

"…it troubles my conscience…that it took me until 1971 to really commence to see that the determination not to stand by and see the Jewish people downtrodden and persecuted was meaningless if I was standing by and seeing another oppressed people downtrodden and persecuted within my own country".

He displayed fearless tenacity in his commitment to the cause that Australia needed to do more in relation to the plight of Australia's Indigenous peoples.

Ron Castan, was a 'great white warrior' who fought for all people and fought for the rights of all. I hope that on this occasion, I can live up to some of his expectations.

Introduction
Ten years on from the Mabo decision, it is important to pose the question: has it delivered on the promise?

In addressing this question, it is necessary to put the Mabo decision into the broader context of public policy making in Indigenous Affairs over the last 100 years and more particularly the period since the '67 referendum.

By doing this I think we can then get some appreciation of where we have failed and where the current debate is losing sight of the real issues into the next decade.

The significance of the Mabo decision

Just as many people thought the 1967 referendum and the citizenship rights it conferred on Aboriginal people and Torres Strait Islanders would transform our life experience and deliver equality, so too, many people placed great hope in the ability of the Mabo decision to right the wrongs of the past and belatedly deliver social justice to the original owners of the land.

Mabo was an unprecedented moral victory that had the potential to turn people's lives around in a most profound and extraordinary way.

It affirmed in law what each Aboriginal person and Torres Strait Islander had always known in their soul: -

- that we have a basic right to our traditional country (where native title has not been extinguished - which I add occurred without the consent of Indigenous peoples); and

- this right exists because of our cultural identity, our laws, traditions and customs.

Although it took the Australian legal system two hundred years of denial and self-deception to correct the injustice of terra nullius, one Murray Islander - Eddie Koiki Mabo - opened the way for a more honest and just relationship to develop between all Australians. I also pay tribute to him on this occasion because without his own vision of something greater, the Mabo case would never have been.

I would like to add my name to those who support the call from the Mabo family to declare the 3rd June a national public holiday, in commemoration of the act of justice that Eddie Koiki Mabo achieved for all Australians.

The Mabo decision achieved legal recognition of our status as the First Nation Peoples of Australia, and gave us the ability to move towards a better position in the social, economic and political life of this country. It presented us with both the imperative and the tools to negotiate our relationship with the rest of the nation. Despite the rhetoric of new forms of political correctness and popularism, it was never about being 'separate and equal', but creating an 'equal and inclusive' agenda.

Many Indigenous people were also heartened by prospect of native title legislation being able to deliver better legal protection of our cultures, especially in relation to significant sites and objects. Taking the High Court's finding that native title has its origins in the culture and traditions of Indigenous people, it was logical to assume that heritage protection and other cultural rights would need to be included in the concept of native title.

In addition to the development of a Native Title Act, it was also proposed that there would be:

- a social justice compact between the Commonwealth Government and Indigenous Australians that would set out how Indigenous people could exercise and protect their inherent rights, ranging from cultural integrity and heritage protection, to regional self-governance and a treaty, to economic development; and

- a National Indigenous Land Fund that would provide a long-term financial base for the acquisition of land by Indigenous communities who had been dispossessed and would be unlikely to be able to claim native title.

But a social compact never eventuated.

The Indigenous leadership only gave their consent and support to the enactment of native title legislation on the basis that this package of measures would follow. In this respect, the original agreement that was brokered, was not honoured.

The proposal to implement the necessary (special) measures to overcome the destructive cultural, social and economic consequences of dispossession, with the full participation and consent of Indigenous Australians through an agreement, is yet to be pursued by any national government.

Even now, ten years on, the concept of a formal agreement or treaty to settle the 'unfinished business' of the last two hundred years, remains acutely controversial.

Similarly, the hopes of many Indigenous people were dashed when it became evident that the potential of native title to provide equal respect for their cultural heritage could not be realised.

Whilst we did end up with a Native Title Act, its amendment following the 1996 Wik decision, has rendered it non-beneficial in its effect on Indigenous peoples by licensing governments to racially discriminate against the interests of Indigenous peoples. It has been a spectacular failure in delivering on its promise - 30 determinations in ten years, and 590 claims still unresolved.
When given the option of 'co-existence' with Aboriginal people and Torres Strait Islanders, the Australian legislature, through the Wik amendments, once again reverted to the easy option of elevating the property rights of non-Indigenous Australians.

Politicians were able to rationalise this latest compromise of Indigenous rights as being in the interests of economic development and the vague but highly emotive concept of 'certainty' while providing no certainty to Indigenous people.

The clear message to native title holders in the Howard Government's Ten Point Plan, was that their legal right to have a real say in decisions affecting their country, was not in the national interest.

When the Australian Parliament enshrined the Ten Point Plan in law, it:

- compromised the basic legal principle of equality before the law;

- undermined the goodwill and potential for Indigenous upliftment that had been embodied in the Mabo and Wik decisions; and

- reminded us just how vulnerable Indigenous rights are and how erroneous the assumption of an equal playing field is.

The Native Title Act and the subsequent Indigenous Land Corporation have also given rise to a plethora of Indigenous corporations and prescribed bodies corporate. These corporations have become a significant drain on many of the communities, both in terms of human and financial capital.

Although some communities have developed innovative ways of incorporating traditional authority structures and governance procedures into the operation of their boards of management, others have an uphill battle to manage the administrative and reporting requirements. Often these day-to-day responsibilities have been added to the load borne by our Elders, or contracted to outside consultants at great financial expense.

Either way, we need to start asking ourselves how we can better manage these responsibilities, and cut down on the duplication of administrative structures.

Nevertheless, the Wik debate did help to elevate the overall level of understanding within the broader community and within government about the need for substantive equality for Indigenous Australians.

Whilst this hasn't been sufficient to remove the discriminatory sections of the Native Title Act, Australians have begun to take a much more honest look at the past, and start to realise that we have a black history that sits uncomfortably with the national ethos of 'a fair go' for all.

Coupled with other revelations from our nation's past, such as Aboriginal Deaths in Custody and the stolen generations, the Wik debate has given rise to an unprecedented outpouring of community action in support of native title and reconciliation, culminating in the bridge walks in 2000 and the release of the Documents for Reconciliation by the now disbanded Council for Aboriginal Reconciliation that same year.

There have also been some important runs on the board in terms of native title outcomes over the last ten years, as ordinary Australians - black and white - have had to grapple with native title issues at the local level.

People who were historically on opposite sides of the fence have had to open a dialogue and give each other a voice in decisions about land and natural resource management. This wasn't happening ten years ago because there was no imperative for non-Indigenous people to even contemplate the possibility of a native title right existing in their back-yard.

Yvonne Stewart, an Arakwal woman from Byron Bay in NSW, and member of the successful Arakwal ILUA, commented,

"No one cared about the traditional owners of Byron Bay before native title. We weren't even invited to be involved in the land management decisions before. It took native title to open their eyes … Our mob is walking around much prouder with their heads up. … Mabo made us believe it was possible. That gave us the right to speak. There was never any respect before".

But for every story like Yvonne's, there are more of ongoing frustration and despair at the persistence of discrimination, historical denial and disrespect.

The Yorta Yorta people, whose claim covers some 2,000sq km of land straddling the Murray River in north-eastern Victoria and south-western NSW, have been in and out of mediation and the courts for nearly ten years.

Theirs is the longest running native title case in Australia - and one that is likely to claim the unenviable title of being the most expensive.
Before resorting to the courts, the Yorta Yorta people made a concerted effort to assure the more than 400 parties who objected to their claim, that they just wanted recognition as the traditional owners and a role in managing the lands and waters under claim.
Now they find themselves before the High Court of Australia, pitted against the forces of two state governments, bigotry and prejudice.

For the Yorta Yorta to succeed, they must convince the justices that "the tide of history" has not "washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs."

But as a spokesperson for the Yorta Yorta people, Monica Morgan, wryly commented last week, "Whatever happens, we'll always be here."

What the experience of the Yorta Yorta people exemplifies is that native title alone is not the means by which we, as a nation, will be able to resolve the outstanding issues between Indigenous and other Australians.

Just as the courts and the adversarial process of litigation is not an appropriate policy response to the legacy of the stolen generations, so too it falls well short of the mark when it comes to resolving the aftermath of two hundred years of oppression.

What has failed Indigenous Australians is the political leadership of this country, which has allowed opportunities, like those opened up by the Mabo decision, to be squandered.

In this regard, I want to make the call that given the over-reaction and hysteria by farmers and miners on Mabo and native title ten years ago, that all remaining claims be fast-tracked for immediate resolution.

The Mabo decision and as a consequence native title, can only ever be looked at by addressing all of the immediate surrounding issues such as deaths in custody, the stolen generations and reconciliation. Exposure of the reality surrounding these aspects of our history, and many others, was supposed to illicit a transformative effect upon the nation. But so far, we have only been able to reflect on these events on the negative side of the ledger.

There is a clear relationship between poor education, high unemployment, poverty, inadequate nutrition, poor health and the failure to acknowledge Indigenous rights.

When you couple these factors with two centuries of dispossession, social exclusion, and racism, it should come as no surprise that Indigenous Australians still remain the most disadvantaged group of any in this nation.

What might be surprising to some Australians is that this is not the experience of our Indigenous brothers and sisters in countries like New Zealand, the United States and Canada - where Indigenous rights have been embraced.

For example, the average life expectancy for an Indigenous Australian is 59 years - but it is nearly 79 years for non-Indigenous Australians.
That is a gap of 20 years.

In New Zealand, the gap between Maori and non-Maori life expectancy rates is 5 to 6 years.

In Canada the gap is 7 years.

And in the USA, the gap between Native Americans and others is 3.5 years.

So where have we gone wrong in Australia??

I think we need to look at the broader picture of where we have been going in Indigenous Affairs - especially in the period following the 1967 referendum, when Australians voted to give the Commonwealth Government authority to make laws for Indigenous Australians and to take real responsibility for Indigenous Affairs in this country.

Prior to that time the Commonwealth had no legal power to intervene in Indigenous affairs - oversight of Indigenous issues was primarily in the realm of the State Governments as a result of the structural framework of Federation and our Constitution.

Is the Constitution to blame?

To some extent, the current state of Indigenous affairs has its roots in the exclusion and blatant racism that was enshrined in the Australian Constitution. In Yorta Yorta, we are doing it again.

Up until the 1967 referendum, s.51 provided that the Commonwealth had no authority to make laws for "the Aboriginal race". Similarly, s.127 prevented the Commonwealth from even counting Indigenous Australians in the national census.

These constraints on Commonwealth power made it impossible for successive governments to develop a nationally funded program to even begin to address Indigenous social well-being.

The Constitution also ensured that no Commonwealth Government could even purport to know the scale of Indigenous disadvantage and inequity in comparison to the rest of the population because we existed as a statistical non-entity.

The Constitution and the people that followed it, framed the subsequent marginalisation of Indigenous people within the legislative program of Commonwealth Governments. And what other Australians have taken for granted, we were excluded from:

- Commonwealth Franchise Act 1902 & Electoral Act 1918
- A whole raft of social welfare legislation including:
o Invalid and Old Age Pension Act 1908
o Maternity Allowance Act 1912
o Child Endowment Act 1941
o Widows' Pension Act 1942
o Unemployment & Sickness Benefit Act 1944
When the Commonwealth finally began to fund Indigenous programs after the 1967 referendum - it was in the form of subsidies to programs administered by State or Territory Governments.

What was also significant after the '67 referendum was that community controlled organisations began to emerge in the 1970s as Indigenous communities around Australia were mobilised in the struggle for land rights, self-determination and basic citizenship rights.

As a consequence, Commonwealth dollars did begin to move out of the state-administered initiatives to address the chronic level of need in communities. For the first time the First Australians were finally included in the national agenda - graduating from obscurity in State-based Aboriginal welfare programs.

If the current Commonwealth Government is serious about improving the status of Indigenous Australians, it must accept that this goal is inextricably linked with the need to face up to the black history of this country, and as a consequence, be prepared to give effect to the rights of Indigenous Australians.

When we talk about these issues, invariably they will include:

- the centrality of the principle of self-determination in Indigenous Affairs policy - as opposed to this Government's preference for "integration" and "mainstreaming",

- the importance of meaningful recognition of Indigenous land rights and native title ,

but also addressing:

- the need for a formal national apology to the stolen generations to acknowledge and heal the suffering that has been borne by generations of Indigenous families as a result of the forced removal of Indigenous children from their lands, cultures and families,

- dealing with the unsustainable and disproportionate rates of Indigenous incarceration that mean that 1 in 5 prisoners in this country are Aboriginal people or Torres Strait Islanders, and over 40% of juveniles in detention are Indigenous;

- the need for greater employment and economic development opportunities for Indigenous Australians if we are to get Indigenous unemployment statistics below 20% - or below 40% if you exclude CDEP participants; and

- the silence of this Government after a ten year national dialogue on reconciliation, and its flat refusal to even acknowledge the potential merits of a national treaty or formal agreement to settle the 'unfinished business'.

One of the major problems we continue to face is the Federal Government's attitude to Indigenous issues generally, and the provision of services for Aboriginal and Torres Strait peoples in particular.

Over the last twenty years, Aboriginal people and Torres Strait Islanders have been studied, analysed and probed about every aspect of our lives in excruciating detail.

Governments have had report after report, consistently advocating the same principle: Indigenous disadvantage can only be improved when Indigenous people are given greater control over the decisions that impact on their daily lives.

But the current Government's approach to Indigenous disadvantage is founded in its conviction that better economic opportunities and individual initiative alone will help to integrate Indigenous people into 'mainstream Australia', and deliver real equality.

The Prime Minister made it very clear in comments last month, that in his mind, the measure of success in terms of the reconciliation process, will be when Indigenous Australians blend into the wider community and no longer stand out as an embarrassing statistical anomaly.

Underpinning the Government's vision for a reconciled Australia are a number of simplistic, and in my view, unsubstantiated assertions, that do not stand up to intellectual rigour or historical reality.

These assertions divorce the experience of Indigenous people in this country from any historical context, and they assume that all Australians have the same life opportunities - it is all a question of individual motivation and choice.

Among the assertions are the following:

- focussing on Indigenous health, housing, education and employment (basic citizenship rights) alone will overcome Indigenous disadvantage and achieve lasting reconciliation;

- symbolic aspects of reconciliation, like an apology to the stolen generations, or a treaty, will do nothing to address Indigenous disadvantage and are socially and politically divisive;

- the so-called 'rights agenda' that has sought to incorporate international standards of human rights into the Australian legal system, has been tried and failed;

- there has been too much focus on Indigenous rights at the expense of Indigenous responsibility, and there is more to be gained by encouraging and supporting individuals to become self-reliant;

and

- by 'turning off the grog', and tackling 'welfare dependency', Indigenous communities will be able to address family violence, alcohol abuse and social dysfunction.

A few prominent Indigenous commentators have developed and advocated aspects of these assertions as part of a broader analysis of the way forward in Indigenous Affairs policy.

But by using the language of neo-liberalism, and consequently being seen to be of a similar mindset to the Howard Government, they have been cast in the media as legitimaters of the 'practical reconciliation' agenda.

Now, rather than being acknowledged as a critical turning point in Indigenous Affairs in this country, the 1967 referendum and the attainment of equal citizenship rights that it once symbolised, is being recast as the beginning of the era of Indigenous welfare dependence and social dysfunction.

Many in the Indigenous leadership now find themselves in the invidious position of being labelled 'part of the problem' and disciples of the 'rhetoric of victimhood' that underpins Indigenous dysfunction.

The reality is however, that you cannot treat the symptoms of dysfunction in isolation from the historical causes. Good public policy can only emerge where there has been an honest and accurate analysis of past errors and omissions, and a genuine commitment to meeting the needs and aspirations of the people affected by any new policy.

Yet the present Government's dogmatic approach to 'practical reconciliation' overlooks many of the critical errors and omissions that are evident in past approaches to Indigenous Affairs. There are 3 key reasons:

- The framework of the Constitution facilitated the marginalisation of Indigenous people for more than half of the twentieth century, and

Although discriminatory references to Aboriginal people were removed from social security legislation in 1966, full access to social security benefits did not occur for Indigenous people until the late 1970s, and in some remote communities, not until the early 1980s.

And second,

- No Australian Government has ever wholeheartedly embraced the right of Aboriginal and Torres Strait Islanders to self-determination, and the associated inherent rights that flow from it.

Recognition has only ever been partial, and then, given begrudgingly and in a compromised form. Leadership has been more forthcoming in the law than it has in Parliament because at least the law has remained 'colour-blind' in recognising Indigenous rights.

Far too much energy has been expended trying to contain and restrict the application of any rights that are recognised, and invariably more energy is consumed in manoeuvres to limit the application of those rights once they are recognised, native title, being the prime example.

And third,

- Despite the popular myth that Indigenous Affairs is the land of milk and honey, where organisations have endless resources, ATSIC is not an independent body with complete authority over the expenditure of the Indigenous Affairs budget.

Less than half of this year's trumpeted 'record' $2.5b Indigenous Affairs budget is allocated to ATSIC, and of that, the Government requires that two-thirds is spent in just three areas: employment programs (similar to work for the dole schemes), housing, and settlement of native title claims.

That leaves very little for some of the key planks of the Government's 'practical reconciliation' agenda, including programs to combat family violence; or measures to combat drug alcohol and other substance abuse in communities - especially when you appreciate that ATSIC is still managing the fallout from the $470m cut in the Coalition's first budget.

As the Government appears to be determined to address Indigenous disadvantage through 'practical reconciliation' measures, the Howard Government's record to date is not measuring up to the rhetoric. Just in the area of health alone: -

- Only about 74c of direct Commonwealth health funding is spent on each Indigenous person for every $1 spent on a non-Indigenous Australian.
This remains the case even after the 2001 Commonwealth Grants Commission Report recommended (page 127) that the poorer health status of Indigenous people and their greater reliance on the public health system, would justify at least a doubling of the average per capita government expenditure on Indigenous people, just to achieve parity in expenditure on health care for all Australians.

This kind of Budget allocation was not forthcoming earlier this month. Instead we saw the Government proposing a winding back of the Pharmaceutical Benefits Scheme, which will have adverse financial and health outcomes for Indigenous people, as well as many other disadvantaged Australians.

What is more surprising though is that the Government made much political mileage out of violence against women and sexual abuse of children and yet a pittance has been dedicated to stamping-out this immoral scourge within our communities. This is hard enough, but it is indecent for the Howard Government to under-spend last years allocation by some $4.5m.

That is why I was so quick to support the recent call by the Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr Bill Jonas, for a parliamentary inquiry into the reconciliation process and the government's response to date.

We have to have a mechanism that will make governments accountable. And we have to hold the current government to account to ensure it delivers - even if it is only on its limited promises of 'practical reconciliation'.

Conclusion

While progress has been slow, it is important to keep in mind that the operating environment of Indigenous affairs has changed. More recently, the prevalence of a network of Indigenous controlled organisations is certainly a highly desirable development. In particular, these developments are relevant to the overall ambitions of Indigenous Australians.

It is nonetheless clear, though, that the broader experience of Indigenous people is that we have become a constant object of public policy. And while this involvement extends back to 1788, it has been played out more particularly against the backdrop of Commonwealth/State relations over the last 35 years. So it is within this history that the engagement of Indigenous people has been seen as a more recent experience.

Nevertheless, as a consequence, the relationships and roles of the numerous players during that time have constantly remained in a phase of relationship building - it has been a celebration of 'stop/start' arrangements; of relationships being formed but not built upon.

Finally, I want to make some comments which are useful in setting the new context.

First, the total Aboriginal and Torres Strait Islander populations remain about 400,000 people. This is a quite manageable number to deal with, but for many the stereotype of Indigenous affairs is seen as being a terminal case of public policy failure, while neglecting to note that the number of people involved is, indeed, small.

How is it possible that 400,000 people should overwhelm our imagination or our ability to formulate responses to familiar challenges within community development?

Indeed, there are some additional aspects to this demographic that are quite important to remember. Of the 400,000, about two-thirds are under the age of 25. This is a marked contrast to the broader Australian population where the profile is very much the reverse.

This means that 260,000 are under the age of 25 and most of them under the age of 18. It would seem apparent to me that these numbers alone have significant implications for how initiatives are structured and delivered over the short, medium and longer term.

It is clear that the longer-term gains must address the burgeoning youth population and the likelihood of new Indigenous leaders emerging into roles of responsibility. We have to find new leaders now and nurture their spirit before it is too late.

In this vein, I can only hope that ATSIC elections later this year, give us new outcomes, fresh blood and new ideas. Not because the others haven't done their job but because those who fall into the 30% club need to make room for the majority, indeed, it is time that, that 70% are reflected in our leadership make-up and not confined to juvenile detention centres or our nation's gaols.

Issues such as capacity building, leadership, and sustainable models of community development must be addressed as our No.1 priority.

Indeed, it is also useful to throw-off this romantic notion that all Aboriginal people live in the remote outback. Only 30% of the Indigenous population live in remote locations.

The other 70% live in the towns, regions and cities of Australia. They live here in the suburbs of Melbourne. There are Torres Strait Islanders living in Canberra and Perth. There are plenty of the mob living in Murray Bridge, Wagga Wagga, Townsville, Katherine and Kalgoorlie.

These are people who for the most part have a telephone, watch TV and listen to radios in their own homes. The postman drives past everyday. The whole infrastructure of government remains within their day-to-day reach. But for the Indigenous people of rural, regional and urban Australia, isolation is not a factor of distance but a matter of prejudice. For Indigenous people, the dominant issue of isolation comes in the form of racism - overt and institutional.

It is clear, therefore, that our current circumstance is derived from the dominant position of government in Indigenous affairs and the failure to see Indigenous rights as a crucial plank in changing the status quo.

Additionally, a group of 400,000 people should no longer tolerate the "poor bugger me" attitude and focus more of our energies in growing our organisations and sponsoring our young.

Key to this will be making room for our young, recognising that we have to take responsibility for our circumstance and rewarding successful organisations to do more rather than treating the good, the bad and the ugly organisations, in exactly the same way.

Despite the gloom of the present, we have every reason to be optimistic in recognising the presence of an emerging class of young Indigenous leaders to open a new phase in defining black/white relations.
We owe it to ourselves, to do this.
We owe it to Eddie Koiki Mabo. And we owe it to our Elders, those who are still fighting for our cultural survival, and those who have gone before.

The governments may come and go and we will always be here but we need our young as well.

Thank you.