ANTaR Reconciliation Inquiry Submission



			Submission by Australians for Native Title and Reconciliation (ANTaR) Inc to the Senate Legal and Constitutional References Committee's Inquiry on progress towards national reconciliation, including the adequacy and effectiveness of the Commonwealth's response. Date: 15th November 2002 Australians for Native Title and Reconciliation (ANTaR) Inc PO Box 1176 ROZELLE NSW 2039 Ph: 02 95556138 Fax: 02 95556991 Email: antar@antar.org.au Executive Summary ANTaR is one of only two national bodies whose major focus is reconciliation. ANTaR has been one of the catalysts of the people's movement for reconciliation, particularly through the Sea of Hands and its ongoing community education work on reconciliation and Indigenous social justice. While acknowledging many positive trends in reconciliation, ANTaR believes that the absence of positive leadership from the Commonwealth at present is preventing progress on reconciliation, and indeed has the capacity to impair long-term outcomes of the process. The actions of the Howard Government in response to the formal reconciliation process suggest it is working to an entirely different agenda - one that has, in effect, damaged the reconciliation process. The over-riding priority of the Government appears to be to repudiate the Indigenous social justice agenda developed over the past three decades and to impose its own agenda based on a false (assimilationist) notion of equality and rights. The Government's actions are misguided and misinformed rather than malicious, driven by an entrenched paternalism and the belief that the policy pendulum has swung too far in favour of Indigenous rights. The Government continues to promote 'practical reconciliation' as its sole policy response to reconciliation and Indigenous disadvantage despite the fact that six years of 'practical reconciliation' have failed to deliver significant improvement in Indigenous disadvantage. Practical reconciliation is the product of the Government's broader agenda on Indigenous affairs characterised by: A divisive role with respect to reconciliation and Indigenous affairs issues. · The promotion of a false (assimilationist) view of equality and rights. The Government has actively confronted key goals and aspirations of Indigenous leaders and communities developed over many decades, in its responses to landmark issues and initiatives in Indigenous affairs. These include its racially-discriminatory response to native title and abandoning of the social justice package; its refusal to make a national apology or provide justice measures to members of the stolen generations; the Government's mishandling of its Motion of Reconciliation and the preamble referendum; and its inadequate response to CAR's Declaration Towards Reconciliation and Final Report. In doing so, the Government has consistently employed arguments based on or seeking to connect with pre-existing prejudices and fears in the non-Indigenous community. The Government's principal message in articulating its approach to Indigenous affairs has been that of formal equality. It has deliberately failed to distinguish between Indigenous Australians' rights as Australian citizens and their rights as First Nations Peoples. Such a distinction, enshrined in the international standard of 'substantive equality', is essential for achieving reconciliation and Indigenous justice. Instead, the Government has politicised the issue of rights, partly in order to appeal to the less tolerant sections of Australian society for political purposes. Its false view on rights is also reflected in its opposition to the concept of self-determination, and its attempts to cast such issues in socially-divisive terms, for instance, its incorrect assertion that self-determination compromises national unity and sovereignty and will result in a separate Indigenous state. The government's broader agenda is reflected in its formal response to the Council's Final Report, delivered almost two years after the report was submitted. The response provides confirmation of the Government's main failures on reconciliation: Failure to provide national commitment and leadership on reconciliation. Failure to ensure a continuing formal reconciliation process. Failure to provide adequate resources to advance reconciliation. Lack of long-term strategies, targets, benchmarks and monitoring. In particular, the Government's rejection of the Council's key recommendation for a legislative response to further advance reconciliation means that there is no longer a formal mechanism for dealing with the many issues of 'unfinished business', and no mandated objectives, monitoring powers and accountability. The Government's response presents a take-it-or-leave-it approach, effectively dispensing with most of the recommendations and key outcomes of the formal reconciliation process under CAR. The reality is that despite the Government's entrenched opposition, the human rights and social justice aspects of the reconciliation agenda will not go away, but will remain as items of 'unfinished business' blocking the path to reconciliation until they are addressed. On the positive side, there have been a number of encouraging signs and positive developments in reconciliation which are important to acknowledge, nurture and build upon. These include the continuing strength of the people's movement for reconciliation, the growing culture of agreement-making in Australia, and the prospects for an increasing positive engagement of the youth sector, as those with the biggest stake in reconciliation. "No one group of Australians must be given rights over another. All Australians must be treated equally and the same." Pauline Hanson, June 1998 "The Government is committed to common rights for all Australians…Neither the Government nor the general community, however, is prepared to support any action which would entrench additional, special or different rights for one part of the community." Commonwealth Government's response to the Council for Aboriginal Reconciliation's Final Report, September 2002. Introduction Australians for Native Title and Reconciliation (ANTaR) Inc is an independent, mainly non-Indigenous, national body supporting the reconciliation process and Indigenous social justice in Australia. ANTaR comprises peak state and territory ANTaR groups and a number of national non-government organisations. ANTaR is linked to a network of over 200 local reconciliation groups. ANTaR is one of only two national organisations with a major focus on reconciliation, the other being Reconciliation Australia. A main activity of ANTaR is community education aimed at improving community attitudes and understanding of the issues surrounding reconciliation and its relationship to Indigenous social justice. ANTaR, through the Sea of Hands, is regarded as having been one of the catalysts for the people's movement for reconciliation. Over 300,000 supporters have signed a hand in the Sea of Hands in support of reconciliation and justice for Indigenous Australians. In many respects this Inquiry should have been unnecessary in that the Government and the community has had access to detailed information on progress towards reconciliation through the Social Justice Reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr Bill Jonas, and through the Documents of Reconciliation and Final Report of the Council for Aboriginal Reconciliation. However, it is the Government's failure to respond adequately to these documents and its many actions in direct contravention of their recommendations that brings us here. While acknowledging many positive trends in reconciliation, ANTaR believes that progress on reconciliation ultimately requires positive leadership from the Commonwealth, and that the absence of such leadership at present is preventing progress on reconciliation, and indeed has the capacity to impair long-term outcomes of the process. Consequently, this submission will focus on the role of the Commonwealth. The submission is divided into two sections. Section 1 begins with a brief overview of the reconciliation process and then considers the Commonwealth's general approach to the reconciliation process. The issue of national commitment and leadership is briefly considered, followed by an examination of the Commonwealth's divisive role in reconciliation, firstly with regard to its specific responses to landmark Indigenous affairs issues, and secondly, the general policy principles which inform its actions. The case is made that the Howard Government's over-riding agenda on Indigenous affairs is counter to the aims of national reconciliation. It concludes with a brief consideration of the most encouraging signs which have emerged from the reconciliation process so far. Section 2 examines the Commonwealth's formal response to the Council's Final Report and Documents of Reconciliation. SECTION 1 The reconciliation process The formal reconciliation process began in Australia with the establishment of the Council for Aboriginal Reconciliation (the Council or CAR) as a statutory authority under the Council for Aboriginal Reconciliation Act 1991. The Act set out reasons for establishing a reconciliation process, including that "there has been no formal process of reconciliation between Aborigines and Torres Strait Islanders and other Australians." The legislation also set out the Council's goals. A key task was to consult with Aboriginal and Torres Strait Islander peoples and the wider Australian community on whether reconciliation would be advanced by a formal document or documents of reconciliation. Following extensive national consultations, the Council produced two documents: the Australian Declaration Towards Reconciliation and the Roadmap for Reconciliation, which were presented at Corroboree 2000 in May. The Council followed this with its Final Report in December 2000, which included draft legislation as a 'means of giving effect to' the documents of reconciliation. The Council's Final Report and draft legislation demonstrates that further progress towards national reconciliation requires formal negotiation and agreements processes to identify and resolve issues for reconciliation ('unfinished business'), as well as formal mechanisms to benchmark and monitor progress on reconciliation. In short, without such processes, reconciliation is unlikely to be achieved. Taking a broader view, there are a number of fundamental requirements for reconciliation to be achieved: national commitment and leadership; support and coordination at all levels of government - local, state and national; formal processes leading to binding outcomes; genuine negotiation with Indigenous people; recognition and protection of Indigenous rights; community support; education and awareness; adequate resources. The inadequacy or absence of any of the above conditions will impair progress towards, and may prevent the achievement of, the goals of reconciliation. Overview of the Commonwealth's response ANTaR contends that the actions of the Howard Government in response to the formal reconciliation process contradict its claims of genuine support for reconciliation. Its actions suggest an entirely different agenda - one that has, in effect, damaged the reconciliation process. The over-riding priority of the Government appears to be to repudiate the Indigenous social justice agenda developed over the past three decades and to impose its own agenda based on a false (assimilationist) notion of equality and rights. The Government's actions are misguided and misinformed rather than malicious, driven by an entrenched paternalism and the belief that the policy pendulum has swung too far in favour of Indigenous rights. The tenor of the Government's position is reflected in its formal response to the Council's Final Report, delivered almost two years after the report was submitted. The response provides confirmation of the Government's main failures on reconciliation: Failure to provide national commitment and leadership on reconciliation. Failure to ensure a continuing formal reconciliation process. Failure to provide adequate resources to advance reconciliation. Lack of long-term strategies, targets, benchmarks and monitoring. These failures in responding to the reconciliation process are underpinned and informed by the Government's broader approach on Indigenous affairs, characterised by: a divisive role with respect to reconciliation and Indigenous affairs issues. the promotion of a false (assimilationist) view of equality and rights. racially-discriminatory responses to issues such as native title. Dismissive of widespread criticism of its deficiencies, the Government promotes 'practical reconciliation' as its sole policy response to reconciliation and Indigenous disadvantage. However, six years of 'practical reconciliation' have failed to deliver significant improvement in Indigenous disadvantage. National commitment and leadership The success of the work of the Council for Aboriginal Reconciliation over its lifespan (1991-2000) owed much to the fact that it operated in the context of an adequately-resourced, formal reconciliation process with its functions mandated by Parliament; and that the Council and the reconciliation process received unanimous cross-party support. None of these conditions apply today. Following the winding-up of CAR, there is no longer a formal process of reconciliation with mandated objectives, monitoring powers and accountability occurring in this country. No longer are there adequate resources to ensure that the full range of activities essential to advance the reconciliation process can take place - in fact there has been a massive de-funding of the process by the Commonwealth. And no longer is there cross-party support. In fact, despite continuing public support for reconciliation, the Government's divisive approach on key reconciliation issues (such as an apology to the stolen generations, a treaty or agreements process, native title and Indigenous rights) has helped to polarise and politicise debate about reconciliation. The Government has attempted to shift the onus for progressing the reconciliation process further onto the community, stating that "the key to continuing progress is a commitment by all Australians to achieving reconciliation through addressing disadvantage and by improving community attitudes and understanding".[1] In other words, it is washing its hands of any responsibility to lead the process and is cutting reconciliation adrift as a national priority. The negative role of the Howard Government has starkly demonstrated the fundamental importance of national leadership and cross-party support. However, with the Commonwealth no longer an advocate for genuine reconciliation and using its powers to prevent an ongoing formal reconciliation process, further progress at this time will require others to step forward and provide leadership. ANTaR recognises that there are many federal politicians, among them Coalition MPs, who are dismayed by the Government's policies and actions on reconciliation. Therefore, ANTaR urges those politicians - regardless of political allegiance - to work together to encourage their parties and leaders to once again make reconciliation an issue where a non-party-political, consensus approach is adopted. Putting aside the present Government's attitudes, we must all recognise the political reality that reconciliation cannot be achieved without the support of all political parties. Commonwealth's divisive role In abandoning a positive leadership role on reconciliation, the Howard Government appears to be working to its own agenda. Nowhere is this more apparent than its enthusiasm for publicly opposing long-held aspirations of Indigenous leaders and communities, particularly with respect to the recognition of Indigenous rights and cultures and the addressing of past injustices. The Government has actively sought to influence public opinion against key goals and aspirations of Indigenous leaders and communities, despite these having been developed and documented over many decades in numerous reports and documents [2], including the Documents of Reconciliation produced by CAR through extensive consultation with both Indigenous and non-Indigenous Australians. The Prime Minister summarised what he appears to see as his mission regarding Indigenous affairs with his comments on native title that "the pendulum has swung too far in one direction" and that he was seeking "to bring it back to the middle".[3] Preoccupation with this agenda and associated domestic political developments, such as the phenomenon of Pauline Hanson's One Nation, has produced a disturbing pattern in the Government's reactions. In its desire to appeal to the less tolerant sections of Australian society, the Government frequently favours negative glosses on initiatives and events, even misrepresenting its own actions in order to do so. The result is to often create division and controversy in the community where previously there was little or none. ANTaR believes that an understanding of the current crisis in the reconciliation process requires consideration of the Commonwealth's actions with respect to key Indigenous affairs issues since the election of the Howard Government in 1996, particularly the divisive role of its underlying mission to "bring the pendulum back to the middle". Commonwealth's response to landmark issues *Native Title* One of the first major Indigenous affairs issues faced by the Howard Government was the High Court's Wik decision. The Government reacted by promoting racially-discriminatory attitudes and policies with respect to native title, helping to inflame community division with alarmist rhetoric about a 'crisis' in land management and by legitimising racist views in the community. The Government's policy response, based on John Howard's 10-point plan, rejected the path of coexistence opened up by the Court's decision and instead focused on extinguishment and restriction of Indigenous native title rights, while confirming and enhancing the rights of pastoralists and other non-Indigenous land-holders. In other words, the Government rejected the path which embodied the principles of reconciliation, and instead exploited fear and uncertainty, deliberately inflamed, to wind back the lawful rights of Indigenous people. It subsequently sought to deflect criticism of the racially-discriminatory nature of its 1998 Native Title Act Amendments by a number of UN Committees by arguing that the Committees were compromising Australia's national sovereignty. The UN criticisms remain unaddressed. A further negative action of the Government in relation to native title was to repudiate an agreement struck between Indigenous negotiators and the Keating Government to develop a social justice package as the third component (along with the Native Title Act 1993, and the Indigenous Land Fund) of a package of measures in response to the High Court's recognition of native title in its Mabo judgement. Indigenous submissions to the Government on the social justice package (produced prior to Howard coming to power) [4] emphasised the need for comprehensive approaches to Indigenous social justice which incorporated both rights and disadvantage issues - approaches clearly opposed by the newly-elected Howard Government. *The apology* The landmark Bringing Them Home report was submitted in 1997, early in the Howard Government's first term. The Government's response was to reject the major recommendations of the report, that a national apology to the stolen generations be made; and that a tribunal be set up as an alternative to litigation, to consider compensation claims by those affected by removal policies. Prime Minister Howard was prominent in publicly opposing these recommendations. In doing so, he appears to have deliberately sought to turn community opinion against the idea of an apology through his misrepresentation that a national apology would imply the guilt of current generations not involved in the policies of forced removals. (Such an implication was never suggested in Bringing Them Home and has not been an issue in apologies subsequently made by every state and territory parliament in Australia). Even more disturbing was the Government's submission to a Senate inquiry in 2000 in which it was stated that there was no stolen generation. The callous nature of the rebuke is hard to fathom but its profound effect on stolen generations members was palpable and the episode represented a low point in the Government's already shameful record in responding to Bringing Them Home. *Motion of Reconciliation* In late 1999, with its mind on looming international scrutiny accompanying the Olympics and the Centenary of Federation and amid continuing criticism of its failure on reconciliation, the Government rushed its Motion of Reconciliation through the Federal Parliament. The haste of the gesture, combined with a lack of community consultation and the omission of an apology to the stolen generations, ensured that it was a divisive issue. (In comparison, CAR spent years on careful and extensive community consultation in producing its Draft Declaration Towards Reconciliation). The deficiencies of the resulting motion and the flawed process leading to it resulted in its being opposed by many Indigenous and non-Indigenous Australians, lessening its value as a meaningful reconciliation initiative. *Preamble to the Constitution Referendum* Also in late 1999, the Prime Minister took the opportunity to sink two unwanted initiatives in one go in the November referendum on the issues of Australia becoming a republic and a new preamble to the constitution. Drafted behind closed doors and without proper consultation, particularly with Indigenous people, the preamble was guaranteed to be a contentious issue, thus ensuring the referendum would fail. It is a measure of the Prime Minister's wilful mishandling of the issue that Indigenous leaders, despite supporting the need for a preamble, welcomed the failure of the referendum. [5] *Declaration Towards Reconciliation* CAR's aspirational document of reconciliation, the Declaration Towards Reconciliation, was released in May 2000, amidst media comment about the Prime Minister's opposition to key clauses. Howard even released his own version on the day. Thus, despite the fact that the Declaration was the product of an extensive and lengthy national consultation process undertaken by CAR (a body itself made up of a wide and representative cross-section of Australian society), media coverage and debate focussed on the opposition of one individual - the Prime Minister. Not surprisingly, one of the Prime Minister's biggest concerns was that the document should reflect a formal equality view of 'equal rights' and 'the same laws' for all (see below - Rights and equality). *Treaty process* 2000, the final year of the Council's term, saw the re-emergence of calls for a treaty process in Australia. The Council's Final Report, delivered in December, recommended the Commonwealth "put in place a process which will unite all Australians by way of an agreement or treaty". The Prime Minister dismissed out of hand consideration of the initiative, even though polling showed that Australians were open to considering the idea and that support was particularly strong amongst younger Australians of 16-25 years. Arguments used included the furphy that treaties can only be struck between sovereign states [6] - again pitched at non-Indigenous prejudice and fear concerning a separate Indigenous state. Commonwealth's policy responses Underlying the Commonwealth's negative handling of these landmark issues are a number of policy responses which set out its overall agenda and which have been devised to maximise its capacity to influence public opinion in its favour. *'Practical reconciliation'* So opposed is the Howard Government to the social justice and human rights components of reconciliation which have emerged from the work of the Council for Aboriginal Reconciliation, and from the recommendations of key reports such as Bringing Them Home, that it coined its own term - 'practical reconciliation' - to express the Government's rejection of such principles. At its simplest, 'practical reconciliation' is a clever public relations device to influence public opinion against social justice and human rights concerns by inferring that these have no bearing on Indigenous disadvantage. However, in wrongfully distinguishing 'practical' and so-called 'symbolic' issues as mutually exclusive, the Government's public statements have also blatantly misrepresented the nature and role of rights. 'Practical reconciliation' presents an assimilationist 'formal equality' standard (see Rights and Equality below) and casts the recognition of cultural difference and human rights as counter-productive to the main game of addressing Indigenous disadvantage. Consequently, the Government's employment of 'practical reconciliation' as a policy has encouraged a polarisation in community attitudes and has undermined the crucial task of improving community attitudes and understanding. *Rights and Equality* On the issue of rights, the Government vigorously promotes a 'formal equality' standard, with such statements as "The Government is committed to common rights for all Australians…Neither the Government nor the general community, however, is prepared to support any action which would entrench additional, special or different rights for one part of the community." [7] As implied by the juxtaposition of this quote with a statement by Pauline Hanson at the beginning of this submission, ANTaR suspects that the Government's insistence on formal equality statements has in mind the political constituency it lost to One Nation at the 1996 election and largely regained at the 2001 election through its hard-line policies on refugees. This suspicion is given greater force when it is realised that the Government's statement is patently untrue. A pertinent example is the issue of special Indigenous heritage protection legislation. The Government has supported the need for such legislation in principle and has been actively engaged in the process of redrafting the Commonwealth's Aboriginal and Torres Strait Islander Heritage Protection Act 1984. How is this not an "additional, special or different right for one part of the community"? The only other conclusion one can draw from the Government's formal equality mantra is that it is part of a deliberate attempt to undermine community understanding of and support for the recognition of Indigenous cultural rights, and as such is fundamentally assimilationist. Put another way, the Government has deliberately failed to distinguish between Indigenous Australians' rights as Australian citizens and their rights as First Nations Peoples. The absence of a clear understanding of this distinction is a significant road-block to reconciliation which the Government appears determined to keep in place. Recognition of difference, enshrined in the internationally-accepted standard of 'substantive equality' (ie, that sometimes 'special rights' are necessary to deliver an equality of outcomes for differently-situated sections of the community, such as Indigenous groups), is essential for genuine reconciliation and justice for Indigenous Australians. The UN and our own official human rights body, HREOC, have repeatedly emphasised this to the Government. With respect to the criticisms of a number of UN Committees regarding the Government's failure to meet its international treaty obligations and uphold a substantive equality standard in relation to issues such as native title and mandatory sentencing [8], the Government resorted to attacking the UN Committee system and claiming that UN instruments compromise Australia's sovereignty. *Self-determination* In 1996 the Howard Government overturned 24 years of Commonwealth policy [9] by abandoning self-determination as the basis of Indigenous affairs policy. In 1999 it argued for removal of the term from the UN Draft Declaration on the Rights of Indigenous Peoples. In March 2000, the Prime Minister rejected use of the term in CAR's Draft Declaration of Reconciliation, subsequently issuing the Government's own version without the term. The Howard Government's opposition to self-determination is based on the furphy that it is seen as compromising national unity through the perceived right "to unilaterally challenge national sovereignty…[and to establish]…a separate Indigenous state or states". [10] However, the right to create a separate Indigenous state is not part of the term's meaning under international law [11], nor is it a political objective of Indigenous Australians. But it has been a common prejudice associated with such issues as land rights and native title within sections of the non-Indigenous community from which the Government has been seeking to garner political support [12], and the Government has repeatedly used it as a wedge issue. The Government also opposes self-determination on the basis that it "implies that a government must in some way relinquish responsibility for and control over those aspects of Indigenous well-being over which it rightly has a jurisdiction in common with its responsibilities to all Australian citizens" [13] . This again represents a deliberate misunderstanding of the term's meaning under international law. As the Government itself points out, it is involved in a number of agreements conferring Indigenous control over the delivery of health and other services. The Katherine West Health Board agreement [14] is a good example of a successful application of local self-determination negotiated with the Commonwealth and Territory governments. In truth it is the Government's own preferred terms, "self-reliance" and "self-empowerment", which have no meaning under international law and which are not recognised rights against which the Government can be held accountable. *Contesting the past* The acknowledgment of past injustices is a fundamental requirement for reconciliation. It is widely acknowledged that many Australians remain ignorant of this history of injustice. In the absence of agreement about the history of injustice to Indigenous peoples in Australia and the legacies which that history continues to manifest in the present, there can be no basis for reconciliation to occur. It is therefore of considerable significance that the Government and the Prime Minister in particular, have sought to contest the facts of Australia's history. In part this has occurred through public support for criticisms by those who have sought to deny or obscure the history of murder, violence and exploitation of Indigenous peoples in Australia, of what they have pejoratively termed the 'black armband' view of Australian history. In some cases the Government has sought to alter history to support its own contentious policy position. For example, the then Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, attempted to deny the existence of the stolen generations in a Government submission to a Parliamentary Inquiry.[15] The reaction to his submission from members of the stolen generations is graphic illustration of the importance of acknowledgment of the past and the divisive effects of the Government's actions in politicising this important aspect of reconciliation. The examples above demonstrate how the Howard Government has placed itself in direct conflict with key aspects of the reconciliation agenda of Indigenous Australians, particularly with respect to rights issues, in an attempt to impose its own political agenda on the community. In doing so it has consistently employed arguments based on or seeking to connect with pre-existing prejudices and fears in the non-Indigenous community, making the Government's attempts to sanitise and contest this history particularly significant. The overall result has been to reinforce negative attitudes and prejudices in the broader community and increase conflict and polarisation in community debate - exactly the opposite of the mission of CAR and the reconciliation process. In many respects we have gone backwards as a nation as a result of such actions by the Howard Government. Encouraging signs Although this submission focuses on the failures of the Commonwealth in advancing reconciliation, there are, nevertheless, many encouraging signs and positive developments in reconciliation which are important to acknowledge, nurture and build upon. People's movement for reconciliation It is hard to imagine that the reconciliation process could have progressed as far as it has without what has been termed the people's movement for reconciliation. Events such as the bridge walks of 2000, the Sea of Hands and the estimated million people who signed the Sorry Books have been unprecedented in Australia's history. The people's movement has led many, including the Prime Minister, to conclude that reconciliation is now an unstoppable force. Whether or not that's the case, even a force as great as the people's movement needs to be nurtured, and this requires both long-term commitment and adequate resources. It needs milestones, such as Corroboree 2000, to celebrate and mark progress along the road. ANTaR is concerned that both the massive de-funding of reconciliation and the abandonment of a formal reconciliation process under the current Government will impede the spread of the message of the people's movement further into the general community. Ironically, the people's movement is one of the few areas in which the Government has (unintentionally) helped advance the reconciliation process. This is because the outrage and despair about the backward-looking agenda of the Government has helped galvanise individual Australians on the need to personally support the reconciliation process. Agreement-making Recent years have seen a proliferation of agreement-making in Indigenous affairs involving governments, local authorities, mining companies, ATSIC Regional Councils, native title groups, Indigenous organisations, landowners, and many others. The types of agreements being struck vary widely, including Indigenous Land Use Agreements (ILUAs), other native title and land use agreements, local government agreements, and fiscal agreements covering service delivery, community governance and related issues. Agreements are the big hope for progress on reconciliation. As we saw at the recent National Treaty Conference, the Government, while continuing to oppose the idea of a treaty process, could not ignore the fundamental importance of agreements. It is ironic then, that an important emerging understanding about the existing body of agreements is the recognition these provide to the rights and legitimacy of Indigenous groups as Indigenous peoples to exercise their sovereign rights and interests and to enter into legally-binding agreements concerning such matters. ANTaR believes that over time, agreements will, by increment, flesh out the skeleton of Indigenous self-determination and provide the best proof that the attainment of Indigenous justice, the addressing of Indigenous disadvantage and indeed, the future of reconciliation, lies in developing frameworks for negotiating outcomes at all levels. There are many examples of different types of agreements worth commenting on here. The agreement between the Northern Territory and Commonwealth governments to pool health monies to the Aboriginal-controlled Katherine West Health Board and to invest the Board with the responsibility to directly manage Indigenous health services for the entire region is a recent initiative reaping significant rewards for all concerned. The Western Cape Communities Coexistence agreement is a landmark agreement between Aboriginal groups in Western Cape York, the Queensland State Government and Comalco. The agreement covers native title rights and mining interests, employment and training, cultural heritage, environmental protection and land management issues. Indigenous Land Use Agreements (ILUAs) such as that between the Bundjalung people of Byron Bay (Arakwal) and the NSW Government providing freehold titles to some land and facilitating the establishment of a national park in which the Aarkawal people have a significant management input. The inter-governmental agreement of the Council of Australian Governments (COAG) to trial whole-of-government approaches in ten sample communities is a welcome initiative. These examples give some indication of the wide potential for agreement-making. Youth initiatives Young people, as those with the biggest stake in the achievement of reconciliation, have demonstrated that they have a far more positive approach and less 'baggage' when it comes to reconciliation and Indigenous issues. Polling has shown that young people in the 16-24 age bracket are strongly supportive of consideration of a treaty process in Australia. It is vital that the voice of youth is brought more effectively into the debate and that their views are better reflected in policy approaches on reconciliation. SECTION 2 Comments on the Government's Formal Response to CAR's Final Report and Documents of Reconciliation The Federal Government released its formal response to CAR's Final Report in September 2002 - almost two years after CAR's report was handed to the Government. Both its tardiness in responding, and the incomplete and inadequate nature of the response suggests the Government's lack of priority on reconciliation. The Government's response is dominated by generalised statements of commitment to reconciliation with most of CAR's recommendations receiving virtually no substantive response. There is no detailed program of implementation for reconciliation and no long-term strategies, targets, benchmarks or performance monitoring frameworks. This is particularly concerning because the thrust of CAR's Final Report is to put in place a framework for implementing the goals identified in the first formal phase of reconciliation. In the sub-headings below, 'Recommendation', refers to the recommendations from CAR's Final Report. Recommendation 1 - Council of Australian Governments (COAG) role The Council of Australian Governments' initiatives in addressing disadvantage, including initiatives for trialling whole of government approaches in ten sample communities, are welcome. However, it is concerning that the performance benchmarks and time-lines that COAG and MCATSIA (Ministerial Council on Aboriginal and Torres Strait Islander Affairs) are developing are not yet in place. The Federal Government's figures for improvements in addressing disadvantage are ad hoc and misleading, reflecting the lack of national strategies and benchmarks for addressing disadvantage. Some figures are totally misleading, such as those for land ownership; or offensive, such as those for the 1998 Native Title Amendments, which in reality effected racially-discriminatory extinguishment of and exclusion from valid native title rights of Indigenous Australians. Recommendation 2 - Support for the Documents of Reconciliation *Australian Declaration Towards Reconciliation* The Australian Declaration Towards Reconciliation (see also above) is an example of the Government attempting to impose its own agenda on the reconciliation process. Ignoring the need for widespread community consultation, particularly with Indigenous interests, the Government issued its own 'revised' document. Thus key issues such as the recognition of customary law, self-determination and a formal apology to the stolen generations were expunged from the original document. As a result of the Commonwealth's actions, there is now no nationally-agreed aspirational and guiding document on reconciliation. *National Strategy to Overcome Disadvantage* The Federal Government's figures for improvements in addressing disadvantage are ad hoc and misleading, reflecting the lack of national strategies and benchmarks for addressing disadvantage. The Government's claim of record Indigenous-specific funding levels as a measure of its record in addressing Indigenous disadvantage is also misleading. Firstly, it has included in that figure all expenditure in any way related to Indigenous affairs, whether relevant to disadvantage or not, and including expenditure of detrimental impact. Thus it includes funding of broad community benefit (such as museums, reconciliation etc) and funding clearly detrimental to Indigenous interests (such as funding for pastoralists and governments opposing native title claims). In the last budget, such spending also included monies redirected from other programs. Secondly, and more significantly, the only appropriate measure of progress is the outcomes achieved, not the level of expenditure. In this respect the Government's lack of strategies and benchmarks means that there are no baseline data or targets against which to measure progress, and therefore also no means of keeping the Government accountable. *National Strategy for Economic Independence* The Government's response to this strategy reflects the lack of national strategies and benchmarks for achieving economic independence, and indicates no intention to remedy this shortcoming. *National Strategy to Sustain the Reconciliation Process* The Government claims to be demonstrating its commitment to reconciliation by one-off funding of Reconciliation Australia to the tune of $5.6 million and providing it with tax deductibility status. However, this represents a massive de-funding of reconciliation, being approximately equivalent to about 6 months operational costs for CAR, or the amount the Government was considering subsidising a doctor's lobby group to build a new office in Canberra! The availability of monies for direct reconciliation work from this source is actually much less in that Reconciliation Australia has had to establish its administrative infrastructure from these funds and is now saddled with an additional primary role of fundraising for its programs. The Government appears to be trying to transfer responsibility for the reconciliation process to Reconciliation Australia as though it is the equivalent of CAR. However, Reconciliation Australia is not an appropriate body for this role, being a private body without a broadly representative governing structure, having no legislated mandate, no formal powers for implementation and monitoring, and grossly insufficient funding. The Government's response claims its Motion of Reconciliation demonstrates continuing bipartisan commitment to reconciliation. However, as mentioned above, the initiative's value was lessened by its flawed process and content. It remains a prime example of how reconciliation opportunities are currently being squandered or undermined by the lack of a formal process, national strategy and genuine commitment to reconciliation. The Government's response states that Reconciliation Place in the Parliamentary Triangle will provide a "prominent public symbol" of the nation's journey of reconciliation. In reality the project has been accompanied by bungled and inadequate consultation, particularly with members of the stolen generations, and has drawn such negative reaction from sections of the Indigenous and non-Indigenous communities that the public launch of the project was conducted hurriedly and with little fanfare. "Acknowledgment of the special place of Indigenous people in the life and history of the nation on certain occasions" is a positive step. However, the Government should not seek to dictate the circumstances and occasions for such acknowledgment. National Strategy to Promote Recognition of Aboriginal and Torres Strait Islander Rights. The Government's response is a clear statement of its assimilationist 'formal' equality view of rights (see also Rights and equality above). Recommendation 3 - Constitutional reform: preamble and section 25 *Preamble to the Constitution* The Government's response concerning the failed referendum on a preamble to the constitution recognising Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, seeks to dispense with an initiative it was never really committed to. In reality it was the Government's bad judgement, its failure to institute a proper process of consultation, and its 'take-it-or-leave-it' approach to the wording that ensured a divisive environment in which the referendum was bound to fail. The preamble should not be dispensed with on the basis of the referendum's failure, as suggested by the Government. *Removal of section 25* While the Government's support for removal of the racially-discriminatory section 25 of the Constitution is welcome, its lack of a plan or time-line for a referendum to remove section 25 is disappointing. Recommendation 4 - Sustaining the Reconciliation process See above under Recommendation 2. Recommendation 5 - Recognition of lack of treaties or agreements *Recognition of settlement without treaties or consent* The Government's claims to have recognised that settlement occurred without treaties or consent in its "Revised Declaration" neglects the fact that this document has no formal or community legitimacy in the reconciliation process. Further, in having given such recognition while at the same time rejecting CAR's recommendations for resolving the original injustice, the Government has offered no alternative of its own for remedial action. See also below under Recommendation 6. *Recommendation 6 - Legislation for a treaty or agreements process* *Draft legislation* Recommendation 6 is a key recommendation because it proposes draft legislation which details processes to "identify, monitor, negotiate and resolve unresolved issues for reconciliation", including the substantive measures outlined in the other 5 recommendations. The Council's draft legislation is proposed as its principal measure in acquitting its legislative requirement to recommend a "means of giving effect to" its reconciliation documents. It could be expected, then, that the Government would address the contents of the legislation in some detail in its formal response. Instead it sidesteps the issue, offering only general and spurious arguments against a legislated process. In rejecting CAR's draft legislation, the Government comments it "would impose a potentially divisive, protracted (at least 12 years) and inconclusive process on the nation." However, elsewhere the Government acknowledges the long timeframe that reconciliation will require, and the advances that have come from the 10 year formal process led by CAR - so objection to a long timeframe cannot be taken seriously. Given that the Howard Government itself has been one of the most divisive players during its time in government, concern over divisiveness also cannot be taken seriously. Finally, concern over potential "inconclusiveness" of the CAR's proposed processes seems odd from a government proposing no formal processes of its own and being unwilling to even sit down and negotiate with Indigenous people about the agenda of unfinished business. It appears that it is the Government's current approach, rather than CAR's, which is designed to be inconclusive. *Treaty process* The Government's dismissal of the recommendation for a treaty or agreements process as inappropriate and divisive is an attempt to shut down debate on the issue. Its false equating of the initiative with treaties between "sovereign states", and argument that a treaty process "would undermine the concept of a single Australian nation", is pitched to unfounded fears of a separate Indigenous state and uncertainties over sovereignty and land ownership issues. However, there are a number of contemporary examples of successful treaty processes between sovereign states and Indigenous peoples. Moreover treaties are about reaching agreement, not division, and can help to provide legal certainty and dispute resolution mechanisms - conditions which clearly do not pertain in the current climate of uncertainty and conflict concerning the many matters of 'unfinished business'. Conclusion In relation to reconciliation and indeed Indigenous affairs more broadly, we have seen the introduction of an insidious political correctness by the current Government. It is a political correctness that carries a take-it-or-leave-it sting in the delivery. The agenda of the Government on reconciliation is a closed one - with Indigenous people and the wider community being dictated to as to what is open for consideration and negotiation. One thing is patently clear - we will never see reconciliation achieved under the present Government's policies. The best we can hope for is some improvement in those limited areas the Government has left open for discussion - so called 'practical reconciliation' issues. But even here, its unwillingness to enter into appropriate negotiations processes with Indigenous people and its implacable opposition to the right of self-determination, will diminish the potential of subsequent outcomes. The reality is that despite the Government's entrenched opposition, the human rights and social justice aspects of the reconciliation agenda will not go away, but will remain as items of 'unfinished business' blocking the path to reconciliation until they are addressed. Meanwhile Indigenous people are dying young, traditional knowledge is being needlessly lost, communities are being further weakened, Indigenous people's access to their traditional lands needlessly blocked, and protection of their cultural sites denied. Such outcomes are primarily the result of the failure of Australian governments (at all levels - not just the Commonwealth) to apply appropriate policies and resources to their clear responsibilities. In this regard, what is happening to Indigenous communities at the moment can be described correctly as cultural genocide. [16] This is clearly not the intention of governments, but it is certainly an ongoing effect of their actions and policies. In summary, the Government's misguided actions in trying to shift the Indigenous affairs pendulum 'back to the centre', and in effectively impeding and refusing to positively engage with the reconciliation process, is the strongest proof of the need for a formal reconciliation process which will lead to binding outcomes secure against future governments hostile to Indigenous interests. Endnotes 1. Commonwealth Response to The Council for Aboriginal Reconciliation Final Report, September 2002. Back to text 2. For instance, Report of the Royal Commission into Aboriginal Deaths in Custody, 1991; Going Forward: Social Justice for the First Australians, Council for Aboriginal Reconciliation, 1995; Recognition Rights & Reform: Report to Government on Native Title Social Justice Measures, ATSIC, 1995; Indigenous social justice - strategies and recommendations, HREOC, 1995; Bringing Them Home, HREOC, 1997. Indigenous submissions to government include: the Yirrkala Bark Petitions, 1963; the Barunga Statement, 1988; Eva Valley Statement, 1993; Kalkaringi Statement, 1998. Back to text 3. John Howard, ABC Television, 4 September 1997. Back to text 4. Going Forward: Social Justice for the First Australians, Council for Aboriginal Reconciliation, 1995; Recognition Rights & Reform: Report to Government on Native Title Social Justice Measures, ATSIC, 1995; Indigenous social justice - strategies and recommendations, HREOC, 1995. Back to text 5. Koori Mail, 17 November 1999: 'Leaders welcome preamble failure'. Back to text 6. The Government consistently ignores a large body of expert opinion to the contrary as well as the fact that a number of countries, eg Canada, have negotiated treaties with their Indigenous peoples. Back to text 7. Commonwealth Response to The Council for Aboriginal Reconciliation Final Report, September 2002. Back to text 8. See, for example, Committee on the Elimination of Racial Discrimination, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/56/Misc.42/rev.3, (2000). Back to text 9. Self-determination was adopted as Commonwealth policy by the Whitlam Labor Government in 1972 and was supported by successive governments, both Labor and Coalition, up until the Howard Government in 1996. Back to text 10. Commonwealth Response to The Council for Aboriginal Reconciliation Final Report, September 2002. Back to text 11. The Government has repeatedly ignored detailed clarification on this point by HREOC and others. Self-determination, in the Australian context, can be described as 'internal self-determination' which "sees increased Indigenous autonomy within the structures of the Australian state". Larissa Behrendt. The Relevance of the Rights Agenda in the Age of Practical Reason. Sydney 2001. Back to text 12. See, for instance, Pauline Hanson's speech to Parliament on 2 June 1998. Back to text 13. Commonwealth 2002, op cit. Back to text 14. See below under 'Encouraging signs'. Back to text 15. Sen. J. Herron, Submission to the stolen generations inquiry, Minister for Aboriginal Affairs, Canberra, March 2000. Back to text 16. Tatz describes cultural genocide as "the deprivations of opportunity to use a language, practise a religion, create art in customary ways, maintain basic social institutions, preserve memories and traditions, and co-operate in achieving social goals". Colin Tatz, Genocide in Australia. AIATSIS Research Discussion Papers No 8, AIATSIS, 1999:15. Back to text
			Australians for Native Title and Reconciliation (ANTaR) • www.antar.org.au • Last updated 3 Dec 2002 Home • Media • Action • Issues • Sea of Hands • Contact • Top