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2008 Face the Facts - Chapter 1

Face the Facts (2008)FTF Cover

Questions and Answers about Aboriginal and Torres Strait
Islander Peoples

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1.1 Who are Aboriginal and Torres Strait Islander Peoples?

Aboriginal and Torres Strait Islander peoples are the first peoples of
Australia. Old definitions[1] based on
skin colour or ‘percentages of Aboriginal blood' have been replaced by
modern definitions which stress ancestry and identification as the key to
Aboriginal identity.

Today, the federal government defines an Aboriginal person as someone who:

  • is of Aboriginal descent

    • identifies as an Aboriginal person
      and
    • is accepted as an Aboriginal person by the community in which he or she
      lives.

A note on terminology

The ‘A’ in ‘Aboriginal is capitalised
similar to other designations like ‘Australian’,
‘Arabic’ or ‘Nordic’. The word ‘aboriginal’
with a lower case ‘a’ refers to an indigenous person from any part
of the world. As such, it does not necessarily refer to the Aboriginal people of
Australia.

‘Aboriginal people’ is a collective name for the original people
of Australia and their descendants, and does not emphasise the diversity of
languages, cultural practices and spiritual beliefs. This diversity is
acknowledged by adding an ‘s’ to ‘people’
(‘Aboriginal peoples’). ‘Aboriginal people’ can also be
used to refer to more than one Aboriginal person.

In Australia, the ‘I’ in ‘Indigenous’ is capitalised
when referring specifically to Australian Aboriginal and Torres Strait Islander
people. The lower case ‘i’ for ‘indigenous’ indicates a
generic use for the term in an international context, often when referring to
indigenous people originating in more than one region or country such as the
Pacific region, Asiatic region, Canada or New Zealand.

Source: NSW
Department of Health, “Communicating Positively – A guide to
appropriate Aboriginal terminology”
, (2004). At http://www.health.nsw.gov.au/pubs/2004/abterminology.html

 

Aboriginal peoples comprise diverse Aboriginal nations, many with their own
languages and traditions and have historically lived on mainland Australia,
Tasmania or on many of the continent’s offshore islands. Torres Strait
Islander peoples come from the islands of the Torres Strait, between the tip of
Cape York in Queensland and Papua New Guinea. The peoples of the Torres Strait
have their own distinct identity, history and cultural traditions. Many Torres
Strait Islanders live on mainland Australia. Aboriginal and Torres Strait
Islander peoples retain distinct cultural identities whether they live in urban,
regional or remote areas of Australia.

Throughout this publication, Aboriginals and Torres Strait Islanders are
referred to as ‘peoples’. This recognises that Aboriginals and
Torres Strait Islanders have a collective, rather than purely individual,
dimension to their livelihoods.

Throughout this publication, Aboriginal and Torres Strait Islander peoples
are also referred to as ‘Indigenous peoples’.

The term ‘Indigenous’ is used to refer to both Aboriginal and
Torres Strait Islander peoples. The use of the term ‘indigenous’ has
evolved throughout international law. It acknowledges a particular relationship
of aboriginal people to the territory from which they
originate.[2]

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1.2 How many Indigenous peoples are there?

455 028 people identified themselves as 'Indigenous' in the 2006
Census.[3]

  • 409 525 of these were Aboriginal peoples.
  • 27 302 were Torres Strait Islanders.
  • 18 201 identified themselves as both Aboriginal and Torres Strait Islander
    peoples.

In 2006, 2.3% of the total population of Australia
identified themselves as Indigenous. The number of people identifying themselves
as Indigenous has increased by 11% since the 2001
Census.[4]

Although 455 028 people identified themselves as Indigenous as part of the
2006 Census, the Australian Bureau of Statistics recommends the estimated
resident population (see table 1.1 below) as the official measure of the
Indigenous population. The estimated resident population (ERP) is higher because
it has been adjusted for a net undercount of Indigenous people and occasions
where Indigenous status is
unknown.[5]

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1.3 Where do Indigenous peoples live? How old are they?

Place of residence

Table 1.1 Estimated State or Territory of residence of Indigenous
Australians, 2006
State/Territory
Indigenous population
% of national total Indigenous population*
Total population
Indigenous people as % of State/Territory
population
New South Wales
148 178
28.7%
6 817 182
2.2%
Queensland
146 429
28.3%
4 091 546
3.6%
Western Australia
77 928
15.1%
2 059 045
3.8%
Northern Territory
66 582
12.9%
210 674
31.6%
Victoria
30 839
6.0%
5 128 310
0.6%
South Australia
26 044
5.0%
1 568 204
1.7%
Tasmania
16 900
3.3%
489 922
3.4%
ACT
4043
0.8%
334 225
1.2%
Other Territories
231
0.1%
2380
9.7%
Australia
517 174
100%
20 701 488
2.5%

Source: Australian Bureau of Statistics, Population Characteristics:
Aboriginal and Torres Strait Islander Australians,
Catalogue No. 4713, Table
2.1 Estimated Resident Population, (27 March 2008), p16.

Figure 1.1 Estimated Resident Population by Remoteness Areas 30 June 2006
as a percentage of the total population group

Figure 1.1 Estimated Resident Population by Remoteness Areas 30 June 2006 as a percentage of the total population group

Source: Australian Bureau of Statistics, Population Characteristics:
Aboriginal and Torres Strait Islander Australians
, Catalogue No. 4713, Table
2.4 Estimated Resident Population, by Remoteness Areas, (27 March 2008),
p18.

Torres Strait Islander Peoples

In 2006, the estimated resident population of people of Torres Strait
Islander origin was 53 300, accounting for 10% of the Indigenous population
and 0.3% of the total Australian population. This estimate includes 20 200
people of both Torres Strait Islander and Aboriginal origin. Approximately 15%
of Torres Strait Islander peoples live in the Torres Strait Indigenous Region,
nearly half (46%) live in the rest of Queensland and 39% in the remainder of
Australia.[6]

Age

As a whole, the Indigenous population is much younger than the non-Indigenous
population. For example, 56.5% of the Indigenous population in Australia are
aged under 25 compared with 32.9% of the non-Indigenous
population.[7]

Figure 1.2 Proportion of Indigenous and non-Indigenous population in
specific age groups, 2006

Figure 1.2 Proportion of Indigenous and non-Indigenous population in specific age groups, 2006

Source: Australian Bureau of Statistics, Population Characteristics:
Aboriginal and Torres Strait Islander Australians
, Catalogue No. 4713, Table
2.3. Estimated Resident Population, (27 March 2008), p. 17.

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1.4 Are Indigenous peoples disadvantaged?

There are clear disparities between Indigenous and non-Indigenous people in
Australia across all indicators of quality of life. Indigenous peoples generally
experience lower standards of health, education, employment and housing. They
are over-represented in the criminal justice system and the care and protection
systems nationally compared to non-Indigenous
people.[8]

This disadvantage was highlighted in the National Report of the Royal
Commission into Aboriginal Deaths in Custody in 1991. In the Report,
Commissioner Elliot Johnston QC stated that:

“the consequence of this history [between Aboriginal peoples and
governments] is the partial destruction of Aboriginal culture and a large part
of the Aboriginal population and also disadvantage and inequality of Aboriginal
people in all the areas of social life where comparison is possible between
Aboriginal and non-Aboriginal
people”.
[9]

The Overcoming Indigenous Disadvantage Report: Key Indicators 2007 details the progress made with ‘closing the gap’ between Indigenous
peoples and other Australians, but also highlights the priority areas
which need addressing to improve the current quality of life for Indigenous
peoples.

Visit http://www.pc.gov.au/oid to read the Overcoming Indigenous Disadvantage Report: Key Indicators 2007.

Health

  • Life expectancy
    1996-01:[10]

    • Indigenous males – 59 years
    • all Australian males – 77 years
    • Indigenous females – 65 years
    • all Australian females – 82 years.

Did you know?

The life expectancy of Indigenous people
is around 17 years lower than that of the Australian population.

  • Death rate 2001-05: The death rate for Indigenous peoples aged 35-54
    in the Northern Territory, Queensland, South Australia and Western Australia was
    five times that of the total Australian population. The overall death rate for
    Indigenous peoples in these four states was twice the death rate for the total
    Australian population.[11] Across
    these states around 75% of Indigenous males and 65% of Indigenous females died
    before the age of 65 years. This is in contrast to the non-Indigenous population
    where around 26% of males and 16% of females died aged less than 65
    years.[12]

  • Infant mortality 2001-05: The infant mortality rate for Indigenous
    Australians is twice the infant mortality rate for all
    Australians.[13] For respiratory
    disease (8%) and external causes (mainly accidents) (4%), the mortality rates
    for Indigenous infants were eleven and four times higher respectively, compared
    with non-Indigenous infants.[14]
  • Causes of death 2006: The three major causes of death for Indigenous
    peoples are diseases of the heart and blood vessels, cancer, and external
    causes.[15] Indigenous peoples are
    more likely than other Australians to die from external causes such as
    accidents, assault and self-harm (16% of Indigenous deaths compared to 5.7% of
    non-Indigenous deaths in
    Australia),[16] and are more likely
    to die from diseases of the respiratory system and endocrine, nutritional and
    metabolic systems, such as
    diabetes.[17]

  • Hospitalisation 2004-05: Indigenous peoples are 1.3 times more likely
    to be hospitalised for most diseases and conditions when compared with
    non-Indigenous people. Hospital admissions were most common amongst older
    Indigenous peoples (aged 55 years and over) at
    31%.[18]

  • Suicide and self harm: Suicide and self-harm cause a great deal of
    grief in many Indigenous communities. Suicide rates are higher for Indigenous
    peoples than other Australians, and particularly for those aged between 25 to
    34.[19]

  • General health 2004-05: Indigenous peoples were nearly twice as
    likely to report their health as 'fair or poor' (22%) compared to non-Indigenous
    people.[20] Based on self-reported
    height and weight, Indigenous peoples aged 15 years and over were 1.2 times more
    likely to be overweight or obese when compared with non-Indigenous people.
    Indigenous peoples were 1.6 times more likely to report asthma as a long-term
    health condition (16%) than the non-Indigenous population. Indigenous peoples
    were three times more likely to report some form of diabetes than non-Indigenous
    Australians.[21] In 2004-05, the
    prevalence of hearing conditions for Indigenous children was three times higher
    than for non-Indigenous
    children.[22]
Table
1.2 Indigenous Self-Assessed Health Status by Remoteness (Locations), 2001,
2004-2005
Health Status
2001
2004-05
Remote
Non-Remote
Total
Remote
Non-Remote
Total
Excellent/Very Good
35%
42%
40%
41%
44%
43%
Good
43%
30%
33%
40%
33%
35%
Fair/Poor
22%
28%
26%
19%
23%
22%

Source: Australian Bureau of Statistics, National Health Survey:
Aboriginal and Torres Strait Islander 2004-05
, Catalogue No. 4715.0, Table 1 Indigenous Persons: Summary Health Characteristics by Remoteness,
Australia, (2005), p 17.

  • What is the Close the Gap Campaign?

The Close the Gap Campaign is an Indigenous Health Equality
campaign calling on Australian governments to commit to:

  • achieving equality of health status and life expectation between
    Indigenous and non-Indigenous people within 25 years
  • achieving equality of access to primary health care and health
    infrastructure within 10 years for Indigenous peoples.

The campaign is run by a coalition of over 40 national health and
human rights peak bodies and experts under the leadership of the Aboriginal and
Torres Strait Islander Social Justice Commissioner.

Visit http://www.humanrights.gov.au/social_justice/health/targets/index.html to read more about the National Indigenous Health Equality Targets.

Visit http://www.closethegap.com.au/ to read
more about the Close the Gap Campaign.

Education

  • Educational achievement 2006: The proportion of Indigenous peoples
    over 15 years who had completed Year 10 was 33% in major cities and 24% in
    remote areas. The proportion of Indigenous peoples who had completed Year 12 was
    29% in major cities and 13% in remote
    areas.[23]
  • Higher education 2006: 6% of Indigenous peoples aged between 18 and
    24 years were attending university compared with 25% of non-Indigenous people.
    Across all age groups, Indigenous peoples were more likely to be attending a
    technical or further educational institution rather than university. 20% of
    Indigenous peoples aged 15 years or over in 2001 reported a non-school
    qualification as compared with 25% in
    2006.[24]

Did you know?

In 2006, the unemployment rate for Indigenous people
was 16% compared with only 5% for the non-Indigenous population.

 

Employment and income

  • Labour force participation 2006: 57% of Indigenous peoples aged 15-64
    years were in the labour force compared with 76% of the non-Indigenous
    population in the same age
    group.[25]
  • Unemployment 2006: The unemployment rate was 16% for Indigenous
    adults compared with 5% of the non-Indigenous population. About 71% of
    unemployed Indigenous adults were looking for full-time work. The unemployment
    rate for Indigenous peoples has improved since 2001 when the unemployment rate
    was 20%.[26]
  • CDEP: The Community Development Employment Projects program (CDEP) is
    an Australian Government funded initiative for unemployed Indigenous peoples. It
    has been in operation since 1977. It enables local Indigenous organisations to
    provide employment and training in lieu of social security
    payments.[27] In 2006, 14 200
    Indigenous peoples reported their participation in
    CDEP.[28]
  • Income 2006: The average weekly household income for Indigenous
    peoples ($460) was only 62% of that for non-Indigenous people
    ($740).[29]

Housing

  • Home ownership 2006: 63% of Indigenous households live in rental
    accommodation, 12% of Indigenous households own their homes outright and 24% own
    their homes with a mortgage. 35% of non-Indigenous households own their homes
    outright and 36% own their homes with a
    mortgage.[30]
  • Internet access 2006: 43% of Indigenous households reported having
    internet access, compared with 64% of non-Indigenous
    households.[31]
  • Overcrowding 2004-2005: 27% of Indigenous peoples were living in
    overcrowded conditions, with 14% of this figure living in major cities or inner
    regional areas and 63% in very remote
    areas.[32] Overcrowding puts stress
    on basic household facilities and can contribute to the spread of infectious
    diseases such as skin infections, respiratory infections and eye and ear
    infections.[33] The highest rate of
    overcrowding among renters of Indigenous or mainstream community housing was in
    the Northern Territory, where 61% of Indigenous households were
    overcrowded.
  • Sewerage service 2006: In the past 12 months, 142 Indigenous
    communities experienced sewerage overflows or leakages, affecting 30 140
    persons.[34] In 2006 there were 51
    dwellings in communities not connected to an organised sewerage system, 85 not
    connected to an electricity supply and 10 not connected to a water supply.
  • Indigenous homelessness: Indigenous peoples are more likely to
    experience homelessness than other Australians. The rate of Indigenous
    homelessness was three times the rate for other Australians in
    2006.[35]
Table 1.3
Number of Homeless Indigenous Persons by State/Territory - 2006
NSW  Vic  Qld  WA  SA  Tas.  ACT  NT  Australia 
no.  no.  no.  no.  no.  no.  no.  no.  no. 
No conventional accommodation  250 55 469 402 152 24 4 927 2283
Hostel, refuge, night shelter  206 38 198 76 39 9 14 82 662
Friends/ relatives  315 70 352 171 67 43 19 134 1171
Total number  771 163 1019 649 258 76 37 1143  4116

Source: Australian Bureau of Statistics, The Health and Welfare of
Australia’s Aboriginal and Torres Strait Islander Peoples
, Catalogue
4704.0, (29 April 2008), p 2.

Child abuse and neglect

  • Many Indigenous families and communities live under severe social strain,
    caused by a range of social and economic factors. Alcohol and substance misuse,
    and overcrowded living conditions are just two of the factors that can
    contribute to child abuse and violence.
  • In 2005-06, Indigenous children were nearly four times as likely as other
    children to be the subject of abuse or
    neglect.[36]
  • An Indigenous child is six times more likely to be involved with a statutory
    child protection system than a non-Indigenous child, but four times less likely
    to have access to child care or preschool services that can offer family support
    to reduce the risk of child
    abuse.[37]
  • Nationally, Indigenous children are seven times more likely to be in
    out-of-home care than non-Indigenous
    children.[38]

Criminal
justice system

  • Adult imprisonment 2007: Indigenous prisoners represent 24% of the
    total prison population in Australia. Nationally, the imprisonment rate for
    Indigenous adults at June 2007 was approximately 13 times that for
    non-Indigenous adults. In the Northern Territory, 84% of the prison population
    is reported as being Indigenous, while in Victoria only 6% is reported as being
    Indigenous. Western Australia recorded the highest imprisonment rate, with
    Indigenous peoples 21 times more likely to be imprisoned than the non-Indigenous
    population.[39]
  • Juvenile detention 2006: Indigenous youth aged 10 to 17 years were 21
    times more likely than non-Indigenous youth to be detained in juvenile justice
    centres (than non-Indigenous peoples of the same age group), although this has
    begun to trend downwards since
    2004.[40]
  • Deaths in custody: Although Indigenous peoples are now less likely to
    die in police custody compared to 20 years ago, they are more likely to
    die in prison custody. From 1980-89, 67 Indigenous peoples died in police
    custody and 39 in prison
    custody.[41] From 1990-99, 51
    Indigenous peoples died in police custody and 95 in prison custody. From
    2000-05, 44 Indigenous peoples died in police custody and 57 in prison
    custody.

    The National Report of the Royal Commission into
    Aboriginal Deaths in Custody 1991 defines deaths in prison custody as any
    deaths that:

    • occur in prison or juvenile detention
    • occur during a transfer to or from prison or a juvenile detention centre or
      a medical facility (following a transfer from a prison or juvenile detention
      centre).

The National Report identifies two categories of death
in police custody
:

  • deaths that occur in institutional settings (police stations or lock ups) or
    as a result of police operations (where police were in close contact to the
    deceased)
  • other deaths during custody related police operations, for example while
    attempting to detain someone during a pursuit.

During 2005, 54
people died in all forms of custody in Australia. Of the 54 deaths, 15 were
Indigenous peoples. During the period 1990 to 2005, the majority of deaths (62%)
occurred in prison custody, while 37% of the deaths occurred in police custody.
During this period, 19% of all deaths in prison custody were Indigenous
peoples.[42]

Women's disadvantage

  • Women's imprisonment 2007: 31% of all female prisoners were reported
    as having Indigenous status.[43]
  • Family and domestic violence: It can be difficult to estimate the
    incidence of violence against women in Indigenous communities due to
    under-reporting. The Australian Bureau of Statistics 2002 National Aboriginal
    and Torres Strait Islander Social Survey (NATSISS) found that 21.2% of
    Indigenous peoples reported family violence as a problem in their community. In
    addition 8.1% reported sexual assault as a problem in their community. The Overcoming Indigenous Disadvantage: Key Indicators 2005 Report indicated
    that 18.3% of Indigenous women experienced physical or threatened abuse in the
    past 12 months compared with 7% of non-Indigenous
    women.[44]

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1.5 Do Indigenous peoples get special treatment from the
government?

Generally, Indigenous peoples receive the same level of public
benefits as non-Indigenous people. Individuals do not receive additional public
benefits because they are Indigenous.

Did you know?

Generally, Indigenous peoples receive the same level of public benefits as
non-Indigenous people. Individuals do not receive additional public benefits
because they are Indigenous.

 

However, specific government programs, not
additional income
, have been introduced for Indigenous peoples because they
are the most economically and socially disadvantaged group in Australia. Special
programs are necessary to help overcome disadvantage. Examples of programs
specifically designed to meet Indigenous needs include:

  • Community Development Employment Projects program (CDEP)
  • Aboriginal Medical Services and Aboriginal Legal Services - provide medical
    and legal services
  • the Indigenous Employment Programme - provides flexible financial assistance
    to help create employment and training opportunities for Indigenous people in
    the private sector
  • Indigenous education programs such as the Indigenous Tutorial Assistance
    Scheme (ITAS) and Parent School Partnership Initiative (PSPI).

These
programs supplement those available to the mainstream population and provide a
culturally appropriate alternative. They are necessary because Indigenous
peoples do not generally use mainstream services at the same rate as
non-Indigenous people and because the level of Indigenous disadvantage is much
more severe. These programs aim to close the inequality gap between Indigenous
and non-Indigenous Australians. Medical and legal services for low income and
migrant communities are also available in Australia and many non-Indigenous
people utilise Aboriginal Medical Services.

Education

Public expenditure on education for Indigenous peoples is 18% higher per
capita than for non-Indigenous people aged 3-24 years. The higher
expenditure is a result of various factors including location (delivering
education in rural and remote locations is more expensive) and lower than
average income for Indigenous peoples which leads to a greater average need for
student assistance.[45]

Health

Overall, the estimated expenditure on health services
provided to Indigenous peoples during 2004–05 was $4718 per person. This
was 17% higher than the estimated expenditure on services delivered to
non-Indigenous Australians.[46] However, given the comparatively poor health indicators for Indigenous peoples,
public expenditure on health services for Indigenous Australians may not be
sufficient to address their health
needs.[47] The difference in health
expenditure on Indigenous and non-Indigenous people reflects the differences in
income level, health status and the cost of delivering health services to remote
communities. While the money spent in the public hospital system was high per
capita for Indigenous peoples, the money spent outside of the public hospital
system on Indigenous Australians was less than half of that for non-Indigenous
Australians.[48] Indigenous peoples
utilise Medicare and Pharmaceutical Benefits Scheme at a much lower rate
than non-Indigenous people.

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1.6 Indigenous representative bodies in Australia

Over the past 50 years there have been three main national Indigenous
representative bodies in Australia:

  • the National Aboriginal Consultative Committee (NACC), (established in 1973)
  • the National Aboriginal Conference (NAC), (1977-1984)
  • the Aboriginal and Torres Strait Islander Commission (ATSIC)
    (1989-2005).[49]

There
are also a range of national, state/ territory and regional level Indigenous
representative bodies currently in existence in Australia. Some examples include
Land Councils and Native Title Representative Bodies and the Torres Strait
Islander Regional Authority. In addition, there exists a number of national
Indigenous peak bodies that represent different interests of Indigenous service
delivery organisations.

What were ATSIC and ATSIS?

ATSIC stands for Aboriginal and Torres Strait Islander Commission. It was
made up of a national Board and Regional Councils whose membership was elected
by Indigenous people every three years.

ATSIC was established in 1989 and was the main organisation responsible for:

  • Developing programs for Indigenous people supplementary to mainstream
    programs and services.
  • Monitoring how government agencies provide services to Indigenous
    people.
  • Advising national, regional and local governments on Indigenous
    issues.

Until 2003, ATSIC was also responsible for administering
Aboriginal and Torres Strait Islander programs and making individual funding
decisions. From 1 July 2003, these functions were transferred to a new Executive
Agency, Aboriginal and Torres Strait Islander Services (ATSIS). ATSIS was
required to administer these programs in accordance with the policy directions
provided by ATSIC. Under the new arrangements, ATSIS was abolished on 30 June
2004 and its responsibilities transferred to mainstream government departments
and agencies.

In May 2004, the Government introduced legislation into Parliament to abolish
ATSIC, even though the Government sanctioned comprehensive review of ATSIC
completed in 2003 recommended ATSIC be retained and strengthened.

In April 2004, the Howard Government announced that the Aboriginal and Torres
Strait Islander Commission (ATSIC) and its administrative arm the Aboriginal and
Torres Strait Islander Services (ATSIS) were to be
abolished.[50] The responsibilities
of these Indigenous agencies were transferred to the mainstream government
departments that were managing similar programs for all
Australians.[51]

The ‘new arrangements’ for Indigenous Affairs were based on a
process of negotiating agreements with Indigenous families and communities at
the local level (‘Shared Responsibility Agreements’) and setting
priorities at the regional level (‘Regional Participation
Agreements’). Central to this negotiation process is the concept of mutual
obligation or reciprocity for service
delivery.[52]

In the absence of ATSIC there is currently no transparent or rigorous process
(at a national level) that enables engagement with Indigenous peoples in
determining Indigenous policy and priorities and holding governments accountable
for their performance.

In 2008, the newly-elected Australian Government committed to setting up a
national Indigenous representative body to give Aboriginal and Torres Strait
Islander peoples a voice in national affairs and policy development.
Consultations on this new body are occurring in 2008 and 2009, with the body to
be established following this.

For further information on national Indigenous representative bodies see the
issues paper ‘Building a sustainable National Indigenous Representative
Body – Issues for consideration’ released by the Aboriginal and
Torres Strait Islander Social Justice Commissioner in 2008: http://www.humanrights.gov.au/social_justice/repbody/index.html.

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1.7 What is the history of government policies on
Aboriginal and Torres Strait Islander peoples?

Terra nullius

From 1788, Australia was treated as a colony of settlement, not of conquest.
Indigenous land was taken over by British colonists on the premise that the land
belonged to no-one ('terra nullius'). Australia's colonisation resulted
in a drastic decline in the Aboriginal population. Estimates of how many
Indigenous people lived in Australia at the time of European settlement vary
from 300 000 to 1 million. Estimates of the number of Indigenous people who died
in frontier conflict also vary
widely.[53] While the exact number of
Indigenous deaths is unknown, many Indigenous men, women and children died of
introduced diseases to which they had no resistance, such as smallpox, influenza
and measles. Many also died in random killings, punitive expeditions and
organised massacres.

The Torres Strait Islands are named after Torres, a Spanish captain, who
sailed through the Torres Strait in 1606 on his way to the Philippines. In 1872,
Britain and Queensland annexed the Torres Strait Islands up to a point 60 miles
from the coast of Cape York. In 1877, the administrative centre was located on
Thursday Island. In 1879, the majority of the remaining islands in the Torres
Strait were annexed to
Queensland.[54]

It is estimated that there were 250 Indigenous languages at the time of
European settlement.[55] According to
the National Indigenous Languages Survey Report 2005:

  • only 18 Indigenous languages are now considered strong and have speakers
    across all age groups
  • around 110 Indigenous languages are still spoken by older people but can be
    considered
    endangered.[56]

In the
1992 Mabo decision, the High Court of Australia held that the notion of terra nullius (owned by no-one) should not have applied to
Australia.[57] Because of this, the
native title rights and interests of Indigenous peoples that existed prior to
colonisation can be recognised today under Australian law.

Protection policies

Indigenous survivors of frontier conflicts were moved onto reserves or
missions. From the end of the nineteenth century, various state and territory
laws were put in place to control relations between Indigenous peoples and other
Australians. Under these laws protectors, protection boards and native affairs
departments segregated and controlled a large part of the Aboriginal population.
It has been estimated that the Aboriginal population during the 1920s had fallen
to only about 60 000 from perhaps 300 000 or even one million people in
1788.[58]

Assimilation policies

In 1937, the Commonwealth Government held a national conference on Aboriginal
affairs which agreed that Indigenous peoples 'not of full blood' should be
absorbed or 'assimilated' into the wider population. The aim of assimilation was
to make the 'Aboriginal problem' gradually disappear so that Aboriginal people
would lose their identity in the wider community.

Protection and assimilation policies which impacted harshly on Indigenous
peoples included separate education for Indigenous children, town curfews, no
social security, lower wages, state guardianship of all Indigenous children and
laws that segregated Indigenous peoples into separate living areas, mainly on
special reserves outside towns or in remote areas.

Another major feature of the assimilation policy was stepping up the forcible
removal of Indigenous children from their families and their placement in white
institutions or foster homes.[59]

Stolen Children or Stolen Generations

The Stolen Generations refers to the generations of Indigenous children that
were forcibly removed from their families by compulsion, duress or undue
influence, as a result of protectionist and child welfare laws, practices and
policies in place in Australia for most of the 1900s. The purpose of the
removals was to ‘merge’, absorb’, or ‘assimilate’
Indigenous peoples into the non-Indigenous population to attain a similar manner
of living as non-Indigenous
people.[60]

The history of the Stolen Children varies depending on time and place. Table
1.4 shows where and when Indigenous children could lawfully be taken away
without their parents' consent and without a court order. Non-Indigenous
children could also be removed without their parents' consent, but only by a
court finding that the child was uncontrollable, neglected or abused.

Table 1.4 State and Territory laws authorising forcible removal of
Indigenous children
Where
When
Why
NSW & ACT
1915 -1940
If the Protection Board believed it was in the interest of the moral or
physical welfare of the child.
Northern Territory
1911 - 1964
Being 'Aboriginal or half-caste' if the Chief Protector believed it was
necessary or desirable.
Queensland
1897 - 1965
For 'Aboriginal' children, and 'half-cast' children living with Aboriginal
parent(s), if the Minister ordered it. These laws did not apply to Torres Strait
Islanders.
South Australia
1923 - 1962
Legitimate children (that is, children whose parents were lawfully married)
could only be removed if they were over 14 or had an education certificate.
Illegitimate children could be removed at any time if the Chief Protector and
State Children's Council believed they were neglected.
Victoria
1871 - 1957
If the Governor of the State was satisfied the child was neglected or left
unprotected. From 1899, for the better care, custody, and education of the
child.
Western Australia
1909 - 1954
Police, protectors and justices of the peace could remove any 'half-caste'
child to a mission. Extended to all 'natives' under 21 in 1936.

Source: Human Rights and Equal Opportunity Commission, Appendices 1-7, Bringing them home: Report of the National Inquiry into the Separation
of Aboriginal and Torres Strait Islander Children from Their Families
,
(1997).

Where were the children placed?

Indigenous children were forcibly removed from their families and communities
to the care of non-Indigenous people with the aim of assimilating them into
non-Indigenous society. In Queensland, this often meant separating the children
into dormitories on reserves. In New South Wales and Western Australia, many
children were trained in Indigenous-only institutions to become domestic
servants or farm labourers. Other children were transferred to orphanages and
children's homes where Indigenous and non-Indigenous children were brought up
together. In other cases, and especially after the 1940s, Indigenous children
were fostered or adopted into non-Indigenous
families.[61]

How many children were removed?

The full scale of removals is still not known because many records have been
lost. In its 1997 Bringing them home Report, the Commission estimated
that between one-third and one-tenth of all Indigenous children were removed
from their homes during the years in which forcible removal laws
operated.[62] Subsequent research by
Professor Robert Manne estimated the number of Indigenous children removed from
their families in the period 1910–70 was closer to the figure of one in
ten, or between 20 000 and 25 000
individuals.[63] The 2002 National
Aboriginal and Torres Strait Islander Survey (NATSIS) found that approximately
10% of all Indigenous peoples aged 35 years or over reported that they had been
taken away from their natural
family.[64]

What were the consequences of the removals?

Many members of the ‘Stolen Generation’ reported during the Bringing them home Inquiry (conducted between 1995 to 1997) that they
were forbidden to speak Indigenous languages, they were told their parents did
not want them, they experienced neglect as well as physical, emotional and
sexual abuse, they received little or no education, and were refused contact
with their families.

Separating Indigenous children from their parents and communities has been
reported to seriously impact on their safety, well being, mental health,
cultural identity, and development. The forced removal of Stolen Generations
people from their families and communities has in many cases prevented them from
acquiring language, culture and the ability to carry out traditional
responsibilities. The forced separation of children has also made it difficult
for those individuals to establish their genealogical links. Many members of the
Stolen Generations still have not been reunited with their families. The
legacy of forcible removal remains in the lives of Indigenous individuals and
communities today.

The Bringing them home Report recommended that for the purposes of
responding to the gross violations of human rights that occurred as a result of
the forcible removals that reparation be made. In addition to acknowledgement
and apology, the report recommended that reparation should include: guarantees
against repetition, restitution, rehabilitation and monetary compensation.

Visit http://www.humanrights.gov.au/social_justice/bth_report/index.html to read the Bringing them home Report.Compensation

To date a national tribunal has not been established to financially
compensate members of the Stolen Generations and their families, but some state/
territory schemes have been established.

Indigenous specific schemes

In Tasmania, the government passed legislation in 2006 that established a $5
million fund to provide payments to eligible members of the Stolen Generations
who were removed from their families as children by the state government. The
Act also enables children of deceased members of the Stolen Generations to apply
for a payment. The Scheme concluded in February 2008, with 84 members of
the Stolen Generations assessed as eligible to receive $58 333 and 22
descendents either $4000 or $5000.

Visit http://www.dpac.tas.gov.au/divisions/cdd/oaa/stolen_generations to read more about the Tasmanian scheme. Non-Indigenous specific
schemes

In Western Australia and Queensland there have been compensation schemes
established that compensate for abuse experienced by any person kept in state
institutions. Some Stolen Generation members will be eligible under these
schemes, although they are not targeted specifically to Stolen Generation
members.

In Western Australia, the state government announced a $114 million redress
scheme in 2007, known as ‘Redress WA’, for those who as children
were abused while in state care in Western Australia.

Visit http://www.redress.wa.gov.au/ to read
more about the WA Redress compensation scheme.

In Queensland, the 1999 report on the Forde Inquiry into the Abuse of
Children in Queensland institutions found significant evidence of abuse and
neglect of children in Queensland institutions from 1911 to 1999. In response to
the report, the Forde Foundation was established to make compensation payments
to acknowledge the impact of the past and help them move forward with their
lives.

Visit http://www.communities.qld.gov.au/community/redress-scheme/eligibility.html to read more about the Forde Foundation compensation scheme.The 1967
Referendum

Before 1967, Indigenous affairs was a state responsibility and the
Commonwealth Government only had responsibility for Indigenous peoples in the
Northern Territory.

In May 1967, a Referendum was held to amend the Australian Constitution
(sections 51 and 127) to allow Indigenous peoples to be included in the national
census, and to give federal Parliament the power to make laws in relation to
Indigenous peoples.

The Referendum was passed with a 'Yes' vote of around 91%.

The 1967 Referendum has meant that the Commonwealth Government could make
special laws in relation to the Aboriginal 'race' intended to benefit Indigenous
peoples. It has also meant that Australia’s census now includes
information on Indigenous peoples. The 1971 census was the first time Indigenous
peoples were included in the census.

Some mistakenly believe that the constitutional amendments provided further
citizenship rights to Indigenous peoples, such as the right to vote. But
Indigenous peoples’ voting rights at the state level had been recognised
in Victoria, New South Wales, Tasmania and South Australia since the 1850s. In
1895, South Australia gave women the right to vote, including Indigenous
women.[65] Only Queensland and
Western Australia barred Indigenous peoples from voting.

At the Commonwealth level, Indigenous peoples’ voting rights were
restricted by the Franchise Act 1902 which excluded Aborigines and other
‘coloured’ people from voting unless they had a state
vote.[66] This was further broadened
in 1962 when the Commonwealth vote was given to all Indigenous peoples, and
by 1965 Indigenous peoples had full and equal voting rights in all
states.[67]

Visit http://www.aph.gov.au/library/pubs/bp/1996-97/97bp11.htm to read more about the 1967 Referendum.

Equal pay

Having repeatedly rejected Indigenous claims to equal pay for equal work
during the 1930s and 1940s, the Commonwealth Conciliation and Arbitration
Commission finally granted Aboriginal stockmen award wages in
1965.[68] This determination had a
flow-on effect to other employed Indigenous people nationally.

Self-determination policy

The federal Labor Government led by Prime Minister Gough Whitlam adopted the
policy of 'self-determination' for Indigenous communities in 1972. This policy
was described as 'Aboriginal communities deciding the pace and nature of their
future development as significant components within a diverse Australia'. It
recognised that Indigenous peoples had a right to be involved in decision making
about their own lives.

Self-management policy

The federal Coalition Government led by Prime Minister Malcolm Fraser, which
came to power in late 1975, adopted the policy of 'self-management'. This policy
focused on Indigenous communities managing some government projects and funding
locally, but with little say in what projects would be created. The Hawke and
Keating Labor Governments from 1983-1996 used both self-determination and
self-management as key principles in their Indigenous affairs policies. The
Coalition Government led by Prime Minister John Howard from 1996 reverted to a
policy of self-management.

Land rights

In 1976, the federal government passed land rights law for Indigenous peoples
in the Northern Territory. Most other states also have some form of Land Rights
legislation in place, although the degree of control given to Indigenous peoples
over the land in question differs significantly from state to state.

Visit http://www.humanrights.gov.au/social_justice/nt_report/ntreport05/ch2.html to read more about Land Rights.

Native title

In the Mabo case of 1992, the High Court of Australia decided that
terra nullius (owned by no one) did not apply. It found that Indigenous
peoples who have maintained a continuing connection with their land according to
their traditions and customs may have their rights to land under traditional law
recognised in Australian law (see section 1.11, ‘What is Native
Title?’ below for further details.)

Northern Territory Intervention

On 21 June 2007, the Howard Government announced a ‘national emergency
response to, protect Aboriginal children in the Northern Territory from sexual
abuse and family violence.[69] The
national emergency response was also known as the ‘Northern Territory
Intervention’ or the ‘Northern Territory Emergency Response’
(NTER). The emergency response measures followed the release of a Report of the
Northern Territory Board of Inquiry into the Protection of Aboriginal Children
from Sexual Abuse. The report was titled Ampe Akelyernemane Meke Makarle:
Little Children are Sacred
. The Little Children are Sacred Report was
commissioned by the Chief Minister of the Northern Territory on 30 April 2007
and publicly released on 15 June 2007.

The Intervention was introduced through a set of federal government
legislation that included the following measures into the Northern Territory:

  • widespread alcohol restrictions on Indigenous land
  • income management schemes that partially or completely quarantined welfare
    recipients’ income
  • abolition of the Community Development Employment Projects program
  • enforcing school attendance by linking income support and family assistance
    payments to school attendance for all people living on Indigenous land and
    providing meals for children at school at parents' cost;
  • introducing compulsory health checks for all Indigenous children
  • acquiring townships prescribed by the Australian Government through five
    year leases including payment compensation
  • increasing policing levels in prescribed communities
  • intensified ground clean up and repair of communities to make them safer and
    healthier by marshalling local workforces through work-for-the-dole
  • improving housing and reforming community living arrangements in prescribed
    communities including the introduction of market based rents and normal tenancy
    arrangements
  • banning the possession of X-rated pornography and introducing audits of all
    publicly funded computers to identify illegal material
  • removing the permit system for common areas, road corridors and airstrips
    for prescribed communities on Indigenous land
  • improving governance by appointing managers of all government business in
    prescribed communities.[70]

The Intervention measures were also exempted from the application
of Australia’s Racial Discrimination Act 1975 (Cth) and Northern
Territory anti-discrimination
legislation.[71]

The current Rudd Government has conducted an independent review of the
Intervention 12 months after it commenced. Visit http://www.nterreview.gov.au/report.htm to read the report.Visit http://www.nt.gov.au/dcm/inquirysaac/pdf/bipacsa_final_report.pdf to read the Little Children are Sacred Report.

For a human rights analysis of the Northern Territory Intervention visit: http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html

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1.8 What is Aboriginal reconciliation?

Reconciliation is a process of improving, renewing or transforming relations
between Indigenous and non-Indigenous people for the future, which are based on:
understanding the historical relationship between Indigenous and non-Indigenous
people; understanding the past injustices and impacts of colonisation and
dispossession on Indigenous peoples; and respecting the cultures, identities and
rights of Indigenous
peoples.[72]

In 1991, the Council for Aboriginal Reconciliation was established for a 10
year period to promote reconciliation between Indigenous peoples and the wider
Australian community. The Council was established by legislation with 25
Indigenous and non-Indigenous members appointed by the Federal Government. At
the end of its 10 year period, the Council was also required to make
recommendations to the government on actions for achieving reconciliation.

In 2000, the Council provided the Australian people and government with a
declaration towards reconciliation, a Roadmap for Reconciliation, which contains four national strategies and a final report, titled Reconciliation: Australia's Challenge, which sets out a comprehensive
program of activities to address the 'unfinished business' of reconciliation.
The Council’s proposals identified four priority areas for achieving
reconciliation: achieving economic independence, overcoming Indigenous
disadvantage, recognising Indigenous rights and sustaining the reconciliation
process.

Reconciliation Australia was established as an independent not-for-profit
organisation in December 2000 to carry forward the reconciliation work of the
Council.

Visit http://www.austlii.edu.au/au/orgs/car/docrec/relevant/docbook/p4.htm to read more information on the Council for Aboriginal Reconciliation.

Visit http://www.reconciliation.org.au/i-cms.isp to read more about the work of Reconciliation Australia.

The Apology

On the 13 February 2008 Prime Minister Kevin Rudd apologised on behalf of all
Australians for the laws and policies which afflicted pain, suffering and loss
on the ‘Stolen Generations’ of Indigenous
peoples.[73] The Apology was adopted
with the support of all political parties.

The national Apology was a recommendation of the Bringing them home Report 1997 (section 5(a)).[74] The report identified that a national apology would contribute to the proper
recognition of Indigenous Australians as our first nations peoples and national
healing and reconciliation.

In recognition and respect, the national Apology should be spelt with a
capital ‘A’.

The Apology

I move:

That today we honour the Indigenous peoples of this land, the oldest
continuing cultures in human history.

We reflect on their past mistreatment.

We reflect in particular on the mistreatment of those who were Stolen
Generations—this blemished chapter in our nation’s history.

The time has now come for the nation to turn a new page in Australia’s
history by righting the wrongs of the past and so moving forward with confidence
to the future.

We apologise for the laws and policies of successive Parliaments and
governments that have inflicted profound grief, suffering and loss on these our
fellow Australians.

We apologise especially for the removal of Aboriginal and Torres Strait
Islander children from their families, their communities and their country.

For the pain, suffering and hurt of these Stolen Generations, their
descendants and for their families left behind, we say sorry.

To the mothers and the fathers, the brothers and the sisters, for the
breaking up of families and communities, we say sorry.

And for the indignity and degradation thus inflicted on a proud people and a
proud culture, we say sorry.

We the Parliament of Australia respectfully request that this apology be
received in the spirit in which it is offered as part of the healing of the
nation.

For the future we take heart; resolving that this new page in the history of
our great continent can now be written.

We today take this first step by acknowledging the past and laying claim to a
future that embraces all Australians

A future where this Parliament resolves that the injustices of the past must
never, never happen again.

A future where we harness the determination of all Australians, Indigenous
and non-Indigenous, to close the gap that lies between us in life expectancy,
educational achievement and economic opportunity.

A future where we embrace the possibility of new solutions to enduring
problems where old approaches have failed.

A future based on mutual respect, mutual resolve and mutual
responsibility.

A future where all Australians, whatever their origins, are truly equal
partners, with equal opportunities and with an equal stake in shaping the next
chapter in the history of this great country, Australia.

The Prime Minister the Hon Kevin Rudd

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1.9 The Declaration on the Rights of Indigenous Peoples

On the 14 September 2007 the United Nations adopted the Declaration of the
Rights of Indigenous Peoples
. The adoption of the Declaration concludes a 30
year process that had its origins in the late 1970s and that was led by the
United Nations Working Group on Indigenous Populations since 1984.

The Declaration sets out how existing human rights apply to the situation of
Indigenous peoples. It includes:

  • The right of indigenous peoples to enjoy all human rights,
    non-discrimination, self-determination and autonomy, maintenance of indigenous
    institutions and the right to a nationality (Articles 1-6).
  • Life, integrity and security (Articles 7-10): the rights to
    freedom from genocide, forced assimilation or destruction of culture, forced
    relocation from land, right to integrity and security of the person, and right
    to belong to an Indigenous community or nation.
  • Cultural, spiritual and linguistic identity (Articles 11-13):
    rights to practice and revitalise culture and the transmission of histories and
    languages, as well as the protection of traditions, sites, ceremonial objects
    and repatriation of remains.
  • Education, information and labour rights (Articles 14-17):
    rights to education, access to media (both mainstream and indigenous specific)
    and rights to protection of labour law and from economic exploitation.
  • Participatory, development and other economic and social
    rights
    (Articles 18-24): rights to participation in
    decision-making, through representative bodies; rights to their own institutions
    to secure subsistence and development; special measures to be adopted to address
    indigenous disadvantage and ensure non-discriminatory enjoyment of rights;
    guarantees against violence and discrimination for women and children; right to
    development; and access to traditional health practices and medicines.
  • Land, territories and resources rights (Articles
    25-32): rights to maintain traditional connections to land and territories;
    ownership of such lands and protection of lands by State; establishment of
    systems to recognise indigenous lands; rights to redress and compensation for
    lands that have been taken; conservation and protection of the environment;
    measures relating to storage of hazardous waste and military activities on
    indigenous lands; protection of traditional knowledge, cultural heritage and
    expressions and intellectual property; and processes for development on
    indigenous land.
  • Indigenous institutions (Article 33 – 37): rights
    to determine membership and to maintain institutions (including judicial
    systems), to determine responsibilities of individuals to their communities, to
    maintain relations across international borders, and right to the recognition of
    treaties, agreements and other constructive arrangements with States.

In addition, the Declaration recognises the principle of free,
prior and informed consent (see Articles 11 and 32). The principle of free,
prior and informed consent can be applicable in a number of contexts including:
access to and use of indigenous lands and territories, natural resources,
traditional knowledge etc. and in relation to the development and implementation
of any laws, policies and programs dealing with or affecting indigenous
peoples.[75]

Visit: http://www.un.org/esa/socdev/unpfii/en/drip.html to view the Declaration.

Visit http://www.humanrights.gov.au/social_justice/declaration/index.html for more information about the Declaration and its impact in Australia.

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1.10 What is the right to self-determination?

Self-determination is the right of all peoples of the world to 'freely
determine their political status and freely pursue their economic, social and
cultural development' (Article 1 of the International Convention on Civil and
Political Rights
).[76] Self-determination is a collective right (belonging to 'peoples') rather than an
individual right.

The right to self-determination for indigenous peoples has been clearly
recognised in the Declaration on the Rights of Indigenous Peoples.

Article 3: Indigenous peoples have the right to self-determination. By virtue
of that right they freely determine their political status and freely pursue
their economic, social and cultural development.

This right must be exercised consistently with international law. This means
that that the Declaration does not authorise the territorial integrity of a
nation to be affected, or authorise secession. This is guaranteed in Article 46
(1) of the Declaration which states:

Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any activity or to perform any
act contrary to the Charter of the United Nations or construed as authorising or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent
States.

In practice, recognising the right to self determination means a government
recognises indigenous peoples' distinct cultures and forms of social
organisation, governance and decision-making; and transfers responsibility and
power for decision-making to indigenous communities so they can make decisions
in relation to issues that affect them.

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1.11 What is native title?

'Native title' is the name given by Australian law to Indigenous peoples'
traditional rights to their lands and waters. Those rights can range from a
relationship similar to full ownership of the land through to the right to go
onto the land for ceremonies or to hunt, fish or gather foods and bush
medicines. To have their native title rights recognised, the Indigenous group
has to prove they still have a connection with their country according to their
traditional laws.

Did you know?

Native title rights can range from a relationship similar to
full ownership of the land through to the right to go onto the land for
ceremonies or to hunt, fish or gather foods and bush medicines.

In many cases, native title rights and interests are extinguished by the
creation of titles and interests in land following colonisation. However, in
some cases Indigenous and non-Indigenous interests in land can co-exist - for
example, Indigenous peoples might be able to visit their country freely even
though it is on a cattle station. Wherever there is a conflict between the two
sets of interests, the non-Indigenous interest will prevail.

Native title cannot be recognised on land which is fully owned by someone
else. It can only be recognised in areas like:

  • vacant land owned by the government (this is called 'Crown Land')
  • some national parks and forests
  • some pastoral leases (where the pastoralist rents a cattle or sheep station
    from the government without owning the land)
  • Aboriginal reserves
  • beaches, seas, lakes and rivers that are not privately
    owned.

How many native title determinations have been
made?

As at 24 September 2008, the total number of native title determinations
(decisions made on a claim) in Australia numbered 116. Of these, 81 were
determinations that native title
exists.[77]

Visit http://www.nntt.gov.au/ to read more about native title determinations.

Is native title the same
as land rights?

Native title is not the same as land rights. Land rights are granted through
legislation whereas native title is the recognition of rights based on the
traditional laws and customs that existed before colonial occupation. Unlike
land rights, native title rights are not granted by government so cannot be
withheld or withdrawn by Parliament or the Crown, although they can be
extinguished by an Act of government.

A land rights grant may cover traditional land, an Aboriginal reserve, an
Aboriginal mission or cemetery, Crown Land or a national park. Native Title only
covers land on which a traditional relationship continues to exist from the time
of colonisation.

Land for Aboriginal communities or enterprises may also be purchased with
money from the Aboriginal and Torres Strait Islander Land Account (formerly Land
Fund) created in 1995. The Land Account was the second part of the federal
government’s response to the High Court’s Mabo decision (the
first part of the response being the introduction of native title legislation),
in recognition of the fact that the majority of Indigenous peoples had been
dispossessed and would be unable to regain ownership and control of their land
through native title processes.

Native title landmarks

1992: First recognition of native title - the Mabo case

In the Mabo case of 1992, the High Court of Australia
recognised the native title rights of the Meriam people of the Torres Strait. It
recognised for the first time that Indigenous peoples who have maintained a
continuing connection with their country, according to their traditions and
customs, may have their rights to land under traditional law recognised in
Australian law.

Visit http://www.austlii.edu.au/au/cases/cth/high_ct/175clr1.html to read more information about the case.

Visit http://www.adcq.qld.gov.au/pubs/Mabo_oration.rtf to read the inaugural Queensland Mabo Oration delivered by Noel Pearson, Cape
York Institute in 2005.

Visit http://www.adcq.qld.gov.au/ATSI/FindingthePromise.html to read the Mabo Oration delivered by Professor Larissa Behrendt, University of
Technology, Sydney in 2007.

1993: The Native Title Act 1993

In 1993, the Native Title Act was passed to recognise and protect
surviving native title rights throughout Australia and set up a process for
settling claims and conflicts about native title.

The Act:

  • established a claim process for Indigenous peoples seeking recognition of
    native title, including the establishment of the National Native Title
    Tribunal
  • provided a definition of native title
  • provided that, in relation to future developments on the land, native title
    would have no lesser protection than other interests in land
  • allowed Indigenous groups claiming native title to negotiate about mining
    developments proposed on the land before proving their claim (the
    ‘right to negotiate’)
  • validated non-Indigenous interests that would have been invalid as a result
    of the recognition of native title.

Visit http://www.nntt.gov.au/What-Is-Native-Title/Pages/What-is-Native-Title.aspx for more information about the Native Title Act 1993.

1996: The question of pastoral leases - the Wik Case

In the 1996 Wik case, the High Court held that pastoral leases in
Queensland do not necessarily cancel out native title rights and interests, and
that they could co-exist with the rights of pastoralists.Visit http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1996/40.html?query=wik for more information about the case.

1998: The Wik amendments to the Native Title ActIn
response to the Wik case, the federal government amended the Native
Title Act.
The amendments:

  • reduced the right to negotiate so that it only applies to mining activities
    and some compulsory acquisitions
  • validated leases granted by government’s that were thought to be
    invalid because of native title, and confirmed the extinguishment of native
    title on a range of leases and other land tenures, such as freehold land
  • upgraded pastoral leaseholds by increasing the activities that could take
    place under the lease without having to negotiate with native title holders
  • made it more difficult to register native title applications
  • introduced ‘Indigenous Land Use Agreements’ (ILUAs) which
    provide native title groups with an opportunity to negotiate voluntary but
    binding agreements with others, including pastoralists and mining companies,
    about their lands and waters.

The 1998 amendments to the Native
Title Act
were referred to the United Nations Committee for the Elimination
of all forms of Racial Discrimination (CERD) and found to be in breach of
Australia's international human rights obligations. CERD has since twice
reaffirmed its findings and continues to criticise the Australian Government for
their failure to address this breach.

2001: Croker Island (Commonwealth v Yarmirr)

The Croker Island case recognised that native title could exist on sea
country but that any native title rights that were recognised must not exclude
the rights of any other person.

Visit http://www.austlii.edu.au/au/cases/cth/HCA/2001/56.html to read more information about the case.

2002: Ward (Western Australia v Ward)

In the Ward case, the High Court found that native title is made up of
a bundle of rights and that these rights can be extinguished either in part or
as a whole. One way native title rights are extinguished is by the grant of
inconsistent non-Indigenous interests in the same area of land. For example, the
creation of a pastoral lease in Western Australia extinguishes the right of the
traditional owners to exclusive possession of that land. However, it does not
extinguish the rights of the traditional owners to enter the land in order to
hunt or fish or perform ceremonies, because these rights can co-exist with the
rights of the pastoralist. In the case of freehold, native title is completely
extinguished.

Visit http://www.austlii.edu.au/au/cases/cth/HCA/2002/28.html to read more information about the case.

2002: Yorta Yorta (Members of the Yorta Yorta Community v
Victoria
)

The High Court found that in order to have native title recognised the
claimant group must show that it, or its members, have practised their
traditional laws and customs continuously since European settlement.

Visit www.austlii.edu.au/au/cases/cth/HCA/2002/58.html to read more information about the case.

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Further reading

Australian Human Rights Commission (formerly the Human Rights and Equal
Opportunity Commission)

Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007,
Human Rights and Equal Opportunity Commission, Sydney,
(2007), at:http://www.humanrights.gov.au/Social_Justice/sj_report/sjreport07/index.html.

Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007
, Human Rights and Equal Opportunity Commission, Sydney,
(2007), at:http://www.humanrights.gov.au/Social_Justice/nt_report/ntreport07/index.html.

Aboriginal and Torres Strait Islander Social Justice Commissioner, Bringing them home Report, Human Rights and Equal Opportunity Commission,
Sydney, (1997), at: http://www.humanrights.gov.au/social_justice/bth_report/index.html.

Human Rights and Equal Opportunity Commission, Us Taken-Away Kids,
(2007), at: http://www.humanrights.gov.au/bth/taken/index.html.

Australian Bureau of Statistics

Australian Bureau of Statistics, Population Characteristics: Aboriginal
and Torres Strait Islander Australians
, Catalogue No. 4713, (27 March
2008).

Australian Bureau of Statistics, The Health and Welfare of
Australia’s Aboriginal and Torres Strait Islander Peoples 2008
,
Catalogue No. 4704.0, (29 April 2008).

Australian Bureau of Statistics, Housing and Infrastructure in Aboriginal
and Torres Strait Islander Communities, Australia
, Catalogue No.
4710.0, (2007).

Australian Bureau of Statistics, National Health Survey: Aboriginal and
Torres Strait Islander 2004-05
, Catalogue No. 4715.0, (11 April 2006).

Productivity Commission

Steering Committee for the Review of Government Service Provision Reports, Overcoming Indigenous Disadvantage in Australia, (2005), at:http://www.pc.gov.au/speeches/cs20070629.

Other Indigenous health publications and websites

Aboriginal and Torres Strait Islander Social Justice Commissioner and the
Steering Committee for Indigenous Health Equality, Close the Gap: National
Indigenous Health Equality Targets
, Australian Human Rights Commission,
Sydney, (2008), at:http://www.humanrights.gov.au/social_Justice/health/targets/health_targets.pdf

Department of Health and Ageing, National Strategic Framework for
Aboriginal and Torres Strait Islander Health 2003-2013
, Department of Health
and Ageing, (2007), at:http://www.health.gov.au/internet/main/publishing.nsf/Content/6CA5DC4BF04D8F6ACA25735300807403/$File/nsfatsihimp2.pdf.

Office for Aboriginal and Torres Strait Islander Health:http://www.health.gov.au/oatsih.

Publications about colonial history

B Attwood, The Making of the Aborigines, Allen & Unwin, Sydney
(1989).

Aboriginal and Torres Strait Islander Social Justice Commissioner, Bringing them home Report, Human Rights and Equal Opportunity Commission,
Sydney, (1997), at: http://www.humanrights.gov.au/social_justice/bth_report/index.html.

R Manne, ‘In denial: The stolen generations and the right’, The Australian Quarterly Essay, Issue 1, Schwartz Publishing (2001).

P Read, The Stolen Generations: The Removal of Aboriginal Children in New
South Wales 1883-1969, NSW Government Printer, Sydney, (1982).

H Reynolds, Frontier: Aborigines, Settlers and Land, Allen and Unwin,
Sydney, (1987).

H Reynolds, The Other Side of the Frontier: An Interpretation of the
Aboriginal Response to the Invasion and Settlement of Australia,
James Cook
University, Townsville, (1981).

H Reynolds, Why Weren’t We Told? A Personal Search for the Truth
about our History
, Viking, Ringwood Victoria, (1999).

L Ryan, The Aboriginal Tasmanians, Second Edition, Allen and Unwin,
Sydney, (1997).

Publications and websites about reconciliation

Reconciliation Australia
http://www.reconciliation.org.au/i-cms.isp.

Reconciliation Australia archives
http://www.austlii.edu.au/au/other/IndigLRes/car/.

Council for Aboriginal Reconciliation, Australian Declaration Towards
Reconciliation
, Council for Aboriginal Reconciliation, (2000), at:
http://www.austlii.edu.au/au/other/IndigLRes/car/2000/12/pg3.htm.

Council for Aboriginal Reconciliation, Roadmap for Reconciliation,
Council for Aboriginal Reconciliation, (2000), at:
http://www.austlii.edu.au/au/other/IndigLRes/car/2000/10/.

Report of the Royal Commission into Aboriginal Deaths in Custody

Commonwealth of Australia, National Report (Volumes I-V), (1991), at:
http://www.austlii.edu.au/au/other/IndigLRes/rciadic/index.html
.

For Information about the new arrangements in the administration of
Aboriginal affairs

Department of Families, Housing, Community Services and Indigenous
Affairs:
http://www.facsia.gov.au/internet/facsinternet.nsf/indigenous/nav.htm
.

Parliament of Australia, Parliamentary Library:
http://www.aph.gov.au/library/INTGUIDE/sp/spindigenous.htm
.

Australian Government, Indigenous Porthole:
http://www.indigenous.gov.au/
.

Ministerial Council for Aboriginal and Torres Strait Islander Affairs:
http://www.mcatsia.gov.au/
.

Secretaries' Group on Indigenous Affairs Annual Report 2006–2007:
http://www.fahcsia.gov.au/indigenous/annual_report/default
.

Australian National Audit Office, Whole of Government Indigenous Service
Delivery Arrangements
, (2007), at:
http://www.anao.gov.au/uploads/documents/2007-08_Audit_Report_101.pdf.

For Information about CDEP

Australian Government, Centrelink:
http://www.centrelink.gov.au/internet/internet.nsf/publications/co041.htm.

Race Discrimination Commissioner, The CDEP Scheme and Racial Discrimination,
Human Rights and Equal Opportunity Commission, Sydney, (1997), at:
http://www.humanrights.gov.au/pdf/race_discrim/cdep_scheme.pdf.

For further studies on Aboriginal and Torres Strait Islander
peoples

Australian Institute of Aboriginal and Torres Strait Islander Studies:
http://www.aiatsis.gov.au/.

For information about the Torres Strait Regional Authority

Australian Government, Torres Strait Regional Authority:
http://www.tsra.gov.au/.

For information about the Mabo case

Mabo No 2: Mabo and Others v Queensland [1992] 175 CLR 1, at:
http://www.austlii.edu.au/au/cases/cth/high_ct/175clr1.html.

For more information about the National Native Title Tribunal

Australian Government, National Native Title Tribunal:
http://www.nntt.gov.au/Pages/default.aspx.

For information about land rights legislation and land purchases

Australian Government, Indigenous Land Corporation:
http://www.ilc.gov.au/site/page.cfm
.

top | contents


[1] Unpublished paper, Aboriginal
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[2] United Nations High Commissioner for Human Rights, The Rights of Indigenous
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[3] Australian Bureau of
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[4] Australian Bureau of Statistics, Population Characteristics:
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[5] Australian Bureau of
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[6] Australian Bureau of Statistics, Population Characteristics:
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[7] Australian Bureau of
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[8] Steering Committee for the
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[9] Royal Commission into
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[10] Australian Bureau of Statistics, The Health and Welfare of
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[11] Australian Bureau of
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[12] Australian Bureau of
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[13] Australian Bureau of Statistics, Causes of Deaths, Catalogue No. 3303.0, (14 March 2008), p. 53.

[14] Australian Bureau of
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Strait Islander Peoples 2008
, Catalogue No. 4704.0, (29 April 2008), p
157.

[15] Australian Bureau of
Statistics, Causes of Deaths, Catalogue No. 3303.0, (14 March
2008), p. 51.

[16] Australian Bureau of
Statistics, Causes of Deaths, Catalogue No. 3303.0, (14 March
2008), p. 51.

[17] Australian Bureau of Statistics, The Health and Welfare of
Australia’s Aboriginal and Torres Strait Islander Peoples 2008
,
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[18] Australian Bureau of
Statistics, National Health Survey: Aboriginal and Torres Strait Islander
2004-05
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[19] Steering Committee for the
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– Key Indicators 2007
, Productivity Commission, (2007), p. 19.

[20] Australian Bureau of
Statistics, National Health Survey: Aboriginal and Torres Strait Islander
2004-05
, Catalogue No. 4715.0, (2005), p. 2.

[21] Australian Bureau of
Statistics, National Health Survey: Aboriginal and Torres Strait Islander
2004-05
, Catalogue No. 4715.0, (2005), pp. 12-22.

[22] Steering Committee for the
Review of Government Service Provision, Overcoming Indigenous Disadvantage
– Key Indicators 2007
, Productivity Commission, (2007), p 524.

[23] Australian Bureau of
Statistics, Population Characteristics: Aboriginal and Torres Strait Islander
Australians
, Catalogue No. 4713, (27 March 2008), p. 50.

[24] Australian Bureau of
Statistics, Population Characteristics: Aboriginal and Torres Strait Islander
Australians
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[25] Australian Bureau of Statistics, Population Characteristics:
Aboriginal and Torres Strait Islander Australians
Catalogue No. 4713, (27
March 2008), p. 80.

[26] Australian Bureau of
Statistics, Population Characteristics: Aboriginal and Torres Strait Islander
Australians
Catalogue No. 4713, (27 March 2008), p. 86.

[27] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2001, Human Rights and Equal Opportunity Commission, Sydney, (2002), Chapter
2.

[28] Australian Bureau of Statistics, Population Characteristics:
Aboriginal and Torres Strait Islander Australians
Catalogue No. 4713, (27
March 2008), p. 83.

[29] Australian Bureau of Statistics, Population
Characteristics: Aboriginal and Torres Strait Islander Australians
Catalogue
No. 4713, (27 March 2008), p. 103.

[30] Australian Bureau of Statistics, Population Characteristics:
Aboriginal and Torres Strait Islander Australians
Catalogue No. 4713, (27
March 2008), p. 130.

[31] Australian Bureau of
Statistics, Population Characteristics: Aboriginal and Torres Strait Islander
Australians
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[32]Australian Bureau of Statistics, Housing: Housing Assistance, Year Book Australia 2008, Catalogue No. 1301.0, at: http://www.abs.gov.au/AUSSTATS/abs@.nsf/bb8db737e2af84b8ca2571780015701e/51232D8E96659BA7CA2573D20010FB02?opendocument (viewed 30 March 2008).

[33] Australian Bureau of
Statistics, The Health and Welfare of Australia’s Aboriginal and Torres
Strait Islander Peoples 2008
, Catalogue No. 4704.0, (29 April 2008),
p. 1.

[34] Australian Bureau of Statistics, Housing and Infrastructure
in Aboriginal and Torres Strait Islander Communities, Australia
, Catalogue No. 4710.0, (20 August 2007).

[35] Australian Bureau of
Statistics, The Health and Welfare of Australia’s Aboriginal and Torres
Strait Islander Peoples 2008
, Catalogue 4704.0, (29 April 2008), p. 1.

[36] Steering Committee for the
Review of Government Service Provision, Overcoming Indigenous Disadvantage
– Key Indicators 2007
, Productivity Commission, (2007), p. 20.

[37] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2007, Human
Rights and Equal Opportunity Commission, Sydney (2007), p. 116.

[38] Cited in Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
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[39] Australian Bureau of Statistics, Prisoners in Australia, (Catalogue No. 4517.0), 13 December (2007), p 6.

[40] N
Taylor, Juveniles in Detention in Australia, 1981-2006, Australian
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[41] P Williams Deaths in
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[42] J Joudo, Deaths in Custody in Australia: National Deaths
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[43] Australian Bureau of Statistics, Table 6. Prisoners, Prisoners in Australia, Catalogue No. 4517.0, (13 December 2007), p.
20.

[44] Steering Committee for the
Review of Government Service Provision, Overcoming Indigenous Disadvantaged:
Key Indicators 2005
, Productivity Commission, (2005), p. 152.

[45] M Neutze, W Sanders, & G Jones, Public Expenditure on
Services for Indigenous People: Education, Employment, Health and Housing
,
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[46] Australian Bureau of
Statistics, The Health and Welfare of Australia’s Aboriginal and Torres
Strait Islander Peoples 2008,
Catalogue No. 4704.0, (29 April 2008), p. 188.

[47] Australian Bureau of
Statistics, The Health and Welfare of Australia’s Aboriginal and Torres
Strait Islander Peoples 2008,
Catalogue No. 4704.0, (29 April 2008), p.
216.

[48] Australian Bureau of Statistics, The Health and Welfare of
Australia’s Aboriginal and Torres Strait Islander Peoples 2008,
Catalogue No. 4704.0, (29 April 2008), p. 189.

[49] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Building a sustainable National
Indigenous Representative Body – Issues for consideration
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Rights and Equal Opportunity Commission, Sydney, (2008), p12.

[50] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2004, Human Rights and Equal Opportunity Commission, Sydney, (2004), p 67.

[51] J Howard (former Prime
Minister), Transcript of the Prime Minister, The Hon John Howard MP, Joint
Press Conference with Senator Vanstone, Parliament House
, Canberra, (15
April 2004), p. 1-2.

[52] Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2004, Human Rights and Equal
Opportunity Commission, (2005), p. 67.

[53] R Broome, ‘The Statistics of Frontier Conflict’,
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Experience
, National Museum of Australia, Canberra, (2003), p. 88-97.

[54] J Burton, ‘History of
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Authority, at: http://www.tsra.gov.au/the-torres-strait/general-history.aspx (viewed 29 September 2008).

[55] Council for Aboriginal Reconciliation, Valuing Cultures:
Recognising Indigenous cultures as a valued part of Australian heritage,
(1994), p. 9.

[56] Australian Institute of
Aboriginal and Torres Strait Islander Studies, National Indigenous Languages
Survey Report 2005
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[57]Mabo v Queensland (No. 2) [1992] 175 CLR 1.

[58] R Broome, Aboriginal Australia, 2nd Edition,
(1994), p. 174.

[59] Human Rights and Equal
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[60] Human Rights and Equal
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Inquiry into the Separation of Aboriginal and Torres Strait Islander Children
from Their Families
, (1997), p. 31.

[61] Human Rights and Equal
Opportunity Commission, Bringing them home: Report of the National Inquiry
into the Separation of Aboriginal and Torres Strait Islander Children from Their
Families
, (1997), pp. 158 – 176.

[62] Human Rights and Equal
Opportunity Commission, Bringing them home: Report of the National

Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from Their Families
(2007), p. 37.

[63] R Manne, ‘In Denial:
The Stolen Generations and the Right’, The Quarterly Essay, (2001),
issue 1, p27.

[64] Australian Bureau of
Statistics, National Aboriginal and Torres Strait Islander Social Survey,
2002
,Catalogue No. 4714.0., (2002), p. 32.

[65] ‘Indigenous people and
the vote’, Australian Electoral Commission, at: http://www.aec.gov.au/voting/indigenous_vote/aborigin.htm (viewed 29 September 2008).

[66] ‘Indigenous people and
the vote’, Australian Electoral Commission, at: http://www.aec.gov.au/voting/indigenous_vote/aborigin.htm (viewed 29 September 2008).

[67] ‘Indigenous people and
the vote’, Australian Electoral Commission, at: http://www.aec.gov.au/voting/indigenous_vote/aborigin.htm (viewed 29 September 2008).

[68] Australian Trade Union Archives, Timeline, http://www.atua.org.au/atua_timeline.htm (viewed 26 September 2008).

[69] M Brough (former Minister
for Families, Community Services and Indigenous Affairs), National emergency
response to protection children in the NT
, (Media Release, 21 June 2007).
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[70]Northern Territory
National Emergency Response Act 2007
(Cth); Social Security and Other
Legislation Amendment (Welfare Payment Reform) Act 2007
(Cth); Families,
Community Services and Indigenous Affairs and Other Legislation Amendment
(Northern Territory National Emergency Response and Other Measures) Act 2007
(Cth); Appropriation (Northern Territory National Emergency Response) Act
(No. 1) 2007-2008 (2007)
Cth; and Appropriation (Northern Territory
National Emergency Response) Act (No. 2) 2007-2008 (2007)
(Cth).

[71] In the Social Justice
Report 2007
the Aboriginal and Torres Strait Islander Social Justice
Commissioner found that the Intervention legislation had been improperly
exempted from the Racial Discrimination Act or Northern Territory
anti-discrimination legislation, and could not be deemed to be a ‘special
measure‘ under the Racial Discrimination Act. In order to address
these concerns, the Social Justice Report 2007 outlined a ten point
action plan for amending the Intervention to make it consistent with
Australia’s human rights obligations and ensure equal treatment of
Indigenous children and their families before the law.

[72] Council for Aboriginal
Reconciliation, Reconciliation Information Sheet 1: Building New Relationships,
1998. Athttp://www.austlii.edu.au/au/other/IndigLRes/car/1998/1/Inf_sht1.html (viewed 26 September 2008)

[73] K Rudd, Apology to Australia’s Indigenous
Peoples
, (Speech delivered at the House of Representatives, Parliament of
Australia,13 February 2008). Athttp://www.pm.gov.au/media/Speech/2008/speech_0073.cfm (viewed 26 September 2008).

[74] Human Rights and Equal
Opportunity Commission, Bringing them home: Report of the National Inquiry
into the Separation of Aboriginal and Torres Strait Islander Children from Their
Families
, (1997), p 652.

[75] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2006, Human
Rights and Equal Opportunity Commission, (2007), Chapter 3.

[76]International Covenant on
Civil and Political Rights
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[77] National Native Title
Tribunal, Native Title Determinations, http://www.nntt.gov.au/Applications-And-Determinations/Search-Determinations/Pages/Search.aspx (viewed 26 September 2008).