2010 Social Justice and Native Title
- Constitutional reform:
Creating a nation for all of us
- Towards a reconciled Australia: An agenda of hope
- The elements of meaningful
and effective engagement
- From community crisis to community control in the Fitzroy
- Reforms related to
Please be aware that this publication may contain the names or images of
Aboriginal and Torres Strait Islander people who may now be
A Note from the Commissioner
In my role as Aboriginal and Torres Strait Islander Social Justice
Commissioner, I am required to prepare two reports on Aboriginal and Torres
Strait Islander peoples’ human rights issues each year – the Native Title Report and the Social Justice Report.
Both Reports are tabled in federal Parliament. They consider major issues in
Aboriginal and Torres Strait Islander affairs over the past year and include
recommendations to governments that promote and protect the rights of Aboriginal
and Torres Strait Islander peoples.
This year’s Reports are my first as Social Justice Commissioner.
This Community Guide gives a brief overview of some of the key issues I
consider in the Native Title Report 2010 and the Social Justice Report
The Reports identify the key priorities and themes that will guide my work
during my five-year term.
My agenda will focus on developing stronger and deeper relationships between
Aboriginal and Torres Strait Islander peoples and the broader Australian
community; between Aboriginal and Torres Strait Islander peoples and
governments; and within Aboriginal and Torres Strait Islander communities
The Social Justice Report identifies how the United Nations
Declaration on the Rights of Indigenous Peoples (the Declaration) will
provide a framework for pursuing these key priorities and themes.
It also explores the significance of constitutional reforms in achieving a
reconciled Australia and profiles a case study of recent developments in the
Fitzroy Valley to argue that community-led development projects ensure the best
outcomes for addressing concerns in Aboriginal and Torres Strait Islander
In this year’s Native Title Report I outline the key priorities
and themes that will guide my work in native title. I also review a selection of
developments in native title law and policy that occurred during
2009–2010. In particular, I examine two ways that governments can rebuild
relationships with Aboriginal and Torres Strait Islander peoples — by
improving agreement-making processes; and through meaningful and effective
consultation and engagement with Aboriginal and Torres Strait Islander
Islander Social Justice Commissioner. Mick commenced his term in February
Mick is a descendent of the Gangulu people of central Queensland.
As Commissioner, he advocates for the recognition of the rights of Aboriginal
and Torres Strait Islander peoples in Australia and seeks to promote respect and
understanding of these rights among the broader Australian community.
Mick has been actively involved in advocacy in Aboriginal and Torres Strait
Islander affairs throughout Australia and has delivered strategic and
sustainable results in remote, rural and urban environments. He is a senior
executive with 25 years experience and a record of attaining high-level goals
and leading multi-million dollar service programs and organisational reform.
In the Social Justice Report 2010 I discuss the need for, and significance of constitutional reform and
outline some possibilities for that reform. Learning from past referenda I also
consider the next steps in the campaign leading to this reform.
Australian Constitution, the founding document and pre-eminent source of law in
the country, was given Royal Assent 110 years ago, Aboriginal and Torres Strait
Islander peoples were absent from its drafting. We were excluded from the
discussions concerning the creation of a new nation to be situated on our
ancestral lands and territories. And we were expressly discriminated against in
the text of the Constitution.
As a consequence, the Constitution did not
– and still does not – make adequate provision for us.
face of this history of exclusion, Aboriginal and Torres Strait Islander peoples
have consistently and vehemently fought to have our rights recognised and
acknowledged by the Australian Government and the Australian people.
If we face our history with courage, and if we pledge the integrity of our
improving relationship firmly within our Constitution, then a real dialogue
between us can proceed secure in the knowledge of our shared commitment
to the nation and its future.
Pat Dodson, Can Australia Afford Not to be Reconciled? (Speech
delivered at the National Indigenous Policy and Dialogue Conference, UNSW, 19 November 2010).
the federal level, a commitment has been made to hold a referendum on
constitutional recognition of Aboriginal and Torres Strait Islander peoples
during the current term of government or at the next federal election. As we
move towards this, we must keep an open mind as to what change should be made.
It would be unwise to prematurely confine the debate to preambular recognition
of Aboriginal and Torres Strait Islander peoples.
The recognition of
Aboriginal and Torres Strait Islander peoples is about nation-building.
Opportunities for nation-building are rare moments in time when we, the
Australian people, direct the transformation of the nation and its identity.
Building a nation based on respect for the dignity and humanity of the first
peoples of this land is something to which all Australians should strive. This
nation-building process will form an integral part of moving towards a
It will facilitate the building of positive
relationships based on trust and mutual respect between Aboriginal and Torres
Strait Islander peoples and the broader Australian community. This is critical
to overcoming Indigenous disadvantage.
Recognition of Aboriginal and Torres Strait Islander peoples in the
- address a history of exclusion of Aboriginal and Torres Strait Islander
peoples in the life of the nation
- improve the sense of self worth and social and emotional well-being of
Aboriginal and Torres Strait Islander peoples both as individuals, communities
and as part of the national identity
- change the context in which debates about the challenges faced by Aboriginal
and Torres Strait Islander communities take place and
- improve the relationships between Indigenous and non-Indigenous
History shows that for a referendum to be successful some critical
factors are essential. They include:
- bipartisan political support
- popular ownership
- popular education.
The campaign to recognise Aboriginal and
Torres Strait Islander peoples in the Constitution must ensure these critical
factors are met.
This will be a long hard journey. But it’s the journey
that will mark the maturity of the nation, not just the destination – as
important as that will be.
The opportunity to actively participate in an
act of nation-building and true reconciliation is rare and should be cherished.
This is an opportunity that I believe will be seized by the people of
In this year’s Social Justice Report and Native Title Report, I
identify the key priorities and themes that will guide my work during my
When I first assumed the role of Social Justice Commissioner, I looked at the
array of socio-economic indicators and human rights issues in trying to
determine my priorities.
I have visited Aboriginal and Torres Strait Islander communities and
organisations in remote parts of Australia, in our regions and in urban centres,
to listen and to learn.
I have attended sessions of international human rights mechanisms to better
understand how international engagement can assist our efforts to ensure that
Australia honours its commitments to respect, protect and fulfil our rights.
I concluded that the focus for my term must be underpinned by two unshakeable
and personal commitments:
- to address disadvantage still faced by Aboriginal and Torres Strait Islander
- to work to achieve a truly reconciled Australia.
In the Social Justice Report I outline my priorities that will guide my work as
the Social Justice Commissioner. The Declaration will provide the framework to
progress these priorities.
In the Native Title Report I build on this framework in the context of
Aboriginal and Torres Strait Islander peoples’ rights to lands,
territories and resources. I discuss how the Declaration will inform my work
relating to native title and land rights and explain the four broad themes I
will focus on.
Over the next four years, I look forward to working with Aboriginal and
Torres Strait Islander peoples, governments, non-Indigenous Australians and
other stakeholders, to build stronger and deeper relationships capable of
addressing disadvantage and to achieve the full realisation of our human rights
in a spirit of partnership and mutual respect.
Priorities of the Social Justice Commissioner, 2010–2015
- To advance the full implementation of the United Nations Declaration on
the Rights of Indigenous Peoples in Australia.
- To promote the development of stronger and deeper relationships:
- between Aboriginal and Torres Strait Islander peoples and the broader
- between Aboriginal and Torres Strait Islander peoples and governments
- within Aboriginal and Torres Strait Islander
- between Aboriginal and Torres Strait Islander peoples and the broader
Native title priorities of the Social Justice Commissioner,
During my term I will focus on four broad themes in native title and land
rights. These themes are:
- Building an understanding of, and respect for, our rights to our lands,
territories and resources throughout Australia.
- Creating a just and fair native title system through law and policy reform.
- Promoting effective engagement between governments and Aboriginal and Torres
Strait Islander peoples.
- Enhancing our capacity to realise our social, cultural and economic
‘Oh Happy Day’, Sharon Minniecon waving Torres Strait
Islander and Aboriginal Flags with the Australian and Aboriginal Flags in the
background. Photo: Ruth Melville (2008).
‘effective engagement’ are common threads that run throughout the Native Title Report 2010 and the Social Justice Report
In this year’s Native Title Report I build on the
importance of ‘effective engagement’ in the creation of stronger
relationships between governments and Aboriginal and Torres Strait Islander
peoples. I look at a particular aspect of engagement and relationship-building
– that is, consultation, cooperation, and free, prior and informed
There is an urgent need for governments to improve their
approach to engaging with Aboriginal and Torres Strait Islander peoples. While
this Chapter focuses on native title and land rights, the issues highlighted are
relevant across government laws, policies and programs.
Over the years,
the failures of governments to engage with Aboriginal and Torres Strait Islander
peoples effectively have been the subject of international scrutiny.
International human rights bodies have repeatedly called upon Australia to
consult with us adequately before adopting laws and policies that affect our
right to our lands, territories and resources.
In the Native Title
Report I explore the practical steps that governments can take to ensure
that consultation processes are meaningful and effective. I also analyse the
relevance of consultation and consent to the design and implementation of
‘special measures’ under the Racial Discrimination Act 1975 (Cth) (RDA).
I then analyse the consultation processes in relation to two
law reform initiatives that were pursued by the Australian Government during the
- the Native Title Amendment Bill (No 2) 2009 (Cth)
- the amendments to the provisions of the Northern Territory
National Emergency Response Act 2007 (Cth) concerning the power of the
Australian Government to compulsorily acquire five-year leases over certain
I argue that the consultation processes concerning these
measures were inadequate in several key aspects. Further, the inadequacy of the
consultation processes calls into question whether these measures can properly
be regarded as special measures under the RDA.
While I am pleased that
the Australian Government is committed to the principle of strong engagement
with Aboriginal and Torres Strait Islander peoples, events during the Reporting
Period have demonstrated that there is much room for improvement in the
Australian Government’s approach to engaging with Aboriginal and Torres
Strait Islander peoples.
Features of a meaningful and effective consultation process
- The objective of consultations should be to obtain the consent or agreement
of the Aboriginal and Torres Strait Islander peoples affected by a proposed
- Consultation processes should be products of consensus.
- Consultations should be in the nature of negotiations.
- Consultations need to begin early and should, where necessary, be
- Aboriginal and Torres Strait Islander peoples must have access to financial,
technical and other assistance.
- Aboriginal and Torres Strait Islander peoples must not be pressured into
making a decision.
- Adequate timeframes should be built into consultation processes.
- Consultation processes should be coordinated
across government departments.
- Consultation processes need to reach the affected communities.
- Consultation processes need to respect
representative and decision-making structures.
- Governments must provide all relevant
information and do so in an accessible way.
This is a summary
of the ‘Features of a meaningful and effective consultation process’
set out in Chapter 3 and Appendix 4 of the Native Title Report 2010.
Social Justice Commissioner Mick Gooda outlines his agenda at the National
Press Club, 3 November 2010. Commissioner Gooda emphasised the need for
effective consultation and engagement with Aboriginal and Torres Strait Islander
peoples. Photo: Sandy Spiers Photography (2010).
In this year’s Social Justice Report I look at
the courageous steps that the communities of the Fitzroy Valley took to address
the problem of alcohol abuse and its impacts on the most vulnerable members of
the community. In doing so, I outline the process of moving from community
crisis to community control.
In 2007, a number of Fitzroy Valley community leaders decided it was time
to address these issues. Since then, the residents of the Fitzroy Valley have
taken control of their challenges, their issues and their aspirations.
In the Social Justice Report I examine three ways in which these
communities have taken control:
- Community-led alcohol restrictions to address the damage caused by alcohol
abuse. A significant portion of the community including local elders and
community leadership supported and successfully lobbied for alcohol
- The creation of an innovative governance structure, the Fitzroy Futures
Forum, which combines local voices with government voices. It has led to the
development of trusting relationships and has built community capacity and
- The development of a community-led collaborative project to address an issue
identified by the community as one of concern, Fetal Alcohol Spectrum Disorders.
In order to consolidate the recent gains made by the communities of
the Fitzroy Valley, governments must reform the way they do business.
Governments will be more effective if they develop service delivery models in
collaboration with local communities.
The Fitzroy Valley experience
clearly shows the transformative potential of community empowerment, community
control and genuine engagement in addressing social challenges confronting
Aboriginal and Torres Strait Islander communities. When communities take
control, it leads to different and positive outcomes.
The story of the
Fitzroy Valley shows how strong local leadership can drive communities to deal
with the most sensitive and intractable issues on their own terms. It is a story
... I want to tell a different story. It is about how Aboriginal people can
be the authors of our stories and not passive and powerless subjects in stories
told and written by others.
... I want to talk about how the leaders of the Fitzroy Valley in the
Kimberley are working together to create a pathway of hope and community
vitality and resilience... if our journey of social reconstruction could be
measured as a one kilometre track, we have only travelled the first metre.
The start of the journey has depended on the leadership of the Aboriginal
community but the journey from this point on will largely be shaped by a
partnership that we can create and build with governments.
June Oscar, Community member and CEO of Marninwarntikura (Speech
delivered at the Western Australian Equal Opportunity Commission Forum, Perth,
10 August 2009).
Its exciting being in Fitzroy Crossing right now. I’m working with
Indigenous people across the whole Valley, male, female and families as well,
young people as well out in the schools. And I know when I look at those little
kids... they are going to inherit this change. They are going to grow up in a
community and start its healing process, its doing it on its own terms, its
facing its own histories, and with this extraordinary effort by all, is going to
face a much better future.
Charmaine Clarke, former Drug and Alcohol Counsellor, Kimberley Mental
Health and Drug Service, in the documentary Yajilara.
The road into Fitzroy Crossing. Photo: Andy Gargett
In November 2009 the National Native Title Tribunal (NNTT) registered the
400th Indigenous Land Use Agreement (ILUA). President of the NNTT
Graeme Neate recognised that:
[t]he fact that 400 ILUAs have now been registered Australia-wide
indicates that this form of agreement is continuing to work well for land users
around the nation.
Graeme Neate, ‘Native title reaches another
milestone’ (Media Release, 27 November 2009).
In the Native Title Report I consider one way
that governments can build and maintain relationships with Aboriginal and Torres
Strait Islander peoples is through reaching just and fair agreements.
Agreement-making is a significant part of the native title system. For
Aboriginal and Torres Strait Islander peoples, agreement-making can be an
expression of free, prior and informed consent and the beginning of cooperative
relationships with governments and other parties.
agreement-making does not always result in beneficial outcomes for Aboriginal
and Torres Strait Islander peoples who face significant barriers to reach just
and equitable agreements. These include inadequate financial resources and
access to appropriate professional advice. There are also significant barriers
embedded within native title law and policy, such as the onerous burden of proof
faced by Aboriginal and Torres Strait Islander peoples. To facilitate positive
outcomes from agreement-making, governments need to take action to ensure that
the playing field is level.
During the Reporting Period (1 July
2009–30 June 2010), the Australian Government advanced a number
of initiatives designed to promote broader land settlements and improve the
ability of Aboriginal and Torres Strait Islander peoples to enter into
I analyse these initiatives in this year’s Native Title Report. I also review some of the achievements in
agreement-making that occurred during the Reporting Period.
While it is
arguable that the initiatives of the Australian Government do not go far enough,
in general I welcome the Government’s attempts to reform the adversarial
culture of the native title system. However the Government needs to commit to a
more substantial reform agenda if it truly wants the system to change.
encourage the Australian Government to build on its reforms designed to improve
agreement-making, but to do so in a way that fully respects our
Theo Homeland. Photo: Fabienne
Social Justice and Native Title
The Social Justice Report 2010 is available at: http://www.humanrights.gov.au/social_justice/sj_report/sjreport10/
The Native Title Report 2010 is available at:
For hard copies of the Social Justice and Native Title Reports and for additional copies of this Community Guide, call 1300 369 711 or order
online at: www.humanrights.gov.au/about/publications/
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