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Community Guide to the Social Justice and Native Title Reports 2005

Community Guide to the Social Justice and Native Title Reports 2005

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Social Justice & Native Title Reports 2005 - Community Guide cover

A note from the Commissioner

As you may know, my role as Social Justice Commissioner
requires me to produce two annual reports on Indigenous rights issues
- the Social Justice Report and the Native Title Report.

Last year we produced a Community Guide aimed at giving readers an
overview of the main issues in the reports. Following positive feedback
we have once again put together an easy-to-read outline on the major
developments and challenges in Indigenous affairs over the past year.

In my first 12 months as Commissioner, I have engaged with governments on
a range of issues and have worked to establish a regular process for dialogue
with government and key groups. I also visited Indigenous communities
across Australia listening to the views of many Indigenous Australians. In
the past year, I have completed a number of projects including:

  • A report on Indigenous young people with cognitive (brain function)
    disabilities and the Australian juvenile justice system;
  • Contributing to a submission to the Senate Select Committee on
    Mental Health, outlining the mental health concerns of Aboriginal
    and Torres Strait Islander people;
  • Participating in working group meetings on the Draft Declaration on
    the Rights of Indigenous Peoples at the United Nations in Geneva;
  • A range of projects relating to the 30th Anniversary of the Racial
    Discrimination Act.

Over the coming year, my Office will continue to focus on issues that have
been identified in the Social Justice and Native Title Reports.

Tom CalmaTom Calma is the Aboriginal
and Torres Strait Islander Social
Justice Commissioner.

Tom, an Aboriginal elder from
the Kungarakan tribal group and
a member of the Iwaidja tribal
group of the Northern Territory,
commenced his five-year term in
July 2004.

In this position, the Commissioner
advocates for the recognition
of the rights of Indigenous
Australians and seeks to promote
respect and understanding of
these rights among the broader
Australian community.

Tom has been involved in
Indigenous affairs at a local,
community, state, national
and international level and has
worked in the public sector for
over 30 years.

Photo - Angelina and Baby

'Angelina and Baby'
Bathurst Island 2004 © Heide Smith


The Indigenous Health Challenge

"I am recommending that the
governments of Australia commit
to achieving equality of health
status and life expectation between
Aboriginal and Torres Strait Islander
peoples and non-Indigenous people
within 25 years."
Tom Calma, Social Justice Commissioner, 2005

IMPROVING THE HEALTH STATUS OF ABORIGINAL and Torres Strait Islander peoples is a
longstanding challenge for governments in
Australia. While there have been some
improvements since the 1970"s, overall progress
has been slow and inconsistent. The inequality
gap between Aboriginal and Torres Strait
Islander peoples and other Australians remains
wide and has not been significantly reduced.

Aboriginal and Torres Strait Islander peoples do
not have an equal opportunity to be as healthy
as non-Indigenous Australians. Aboriginal and
Torres Strait Islander peoples do not enjoy equal access to primary health care and health
infrastructure which includes safe drinking
water, effective sewerage systems, rubbish
collection services and healthy housing.

Governments have made commitments to
try and address Indigenous health inequality
but always without a specified time frame.

Incremental funding increases have not been
enough to match Indigenous health needs
and, although there have been a number of
well intentioned strategies and frameworks in
Australia, there are few improvements to the
health of Indigenous Australians.

The data remains bleak and shows only slow
improvements in some areas of health status
with no progress on others over the past
decade. However, significant work has been
completed over the past 3 years to reinvigorate
the commitments of governments to address
Aboriginal and Torres Strait Islander health
inequality through the National Strategic
Framework for Aboriginal and Torres Strait Islander

This National Strategic Framework sets the
foundation for future work in the area of
Indigenous health inequality. The need to
address Indigenous health from a holistic
perspective is identified as an essential
commitment governments should make. Such
an approach means that governments must
commit to working in a holistic manner at a
program and policy level, to take a whole of
government approach, and most importantly, to
do this in partnership with Aboriginal and Torres
Strait Islander peoples.

The Social Justice Report 2005 proposes a human
rights based campaign to address the health
inequality of Indigenous Australians and asks
governments to commit to addressing the
health status of Aboriginal and Torres Strait
Islander peoples within a set timeframe. The
human rights based approach advocates that
Aboriginal and Torres Strait Islander peoples have a right to health.

. . . equality within a generation

The right to health has 4 essential elements:

  • Availability - proper public health and health care facilities and programs have to be available in sufficient numbers across Australia;
  • Accessibility - health facilities must be within safe physical reach for all sections of the population especially disadvantaged groups such as Indigenous Australians;
  • Acceptability - all medical services must respect medical ethics as well as the culture of individuals; and
  • Quality - As well as being culturally appropriate, health services must be of a good quality.

It is a realistic aim for governments to commit
to ensuring an equitable distribution of primary
health care and equitable standards of health
infrastructure (such as water, sanitation, food and
housing) in a time period of no more than 10 years.

  • Further, it is realistic for governments to commit
    to the goal of achieving equality of health status
    and life expectation within the next generation.
    This would be in approximately 25 years.
    Governments must commit to increased funding
    levels that match the needs of Aboriginal and
    Torres Strait Islander communities.

    The main emphasis in rolling out the human
    rights based approach is for governments to
    build on already existing structures
    such as the National Strategic Framework
    and to incorporate a number of monitoring
    mechanisms to make sure that governments are
    accountable. It is recommended that the goals
    and aims of the National Strategic Framework
    for Aboriginal and Torres Strait Islander Health
    be incorporated into the operation of the new
    arrangements for Indigenous affairs and in
    particular the Indigenous Coordination Centres.

    This means that the whole of government
    structures that have been developed through
    the new arrangements for Indigenous affairs will
    be utilised and further built upon.

    The Social Justice Report 2005 proposes that the
    Australian Health Minister’s Conference agree to
    a National Commitment to achieve Aboriginal and
    Torres Strait Islander Health Equality
    and that bipartisan
    support for this commitment be sought
    in federal Parliament and in all state and territory

    This would mean that all governments commit
    to a program of action to address this inequality
    and aim to achieve equality of opportunity in the
    provision of health care and health infrastructure
    in 10 years.

    Governments should also commit to continue to
    work to achieve improved access to mainstream
    as well as continued support for
    community controlled health services with the
    full participation of Aboriginal and Torres Strait
    Islander peoples.

    The National Commitment by governments
    should acknowledge that achieving such
    equality for Aboriginal and Torres Strait Islander
    peoples will contribute significantly to the
    reconciliation process.

    photo - children on Bathurst Island

    Bathurst Island, 2004.
    Copyright © Heide Smith.

    The Indigenous land tenure debate

    The Native Title Report 2005 focuses on the
    Australian Government"s proposal to encourage
    private ownership and private leases on
    Indigenous lands.

    In 2005, the Prime Minister announced that he
    wanted to make "native title and communal land
    work better
    " by adding "opportunities for families
    and communities to build economic independence
    and wealth through use of their communal land

    The National Indigenous Council"s Indigenous
    Land Tenure Principles
    were published soon after
    the Prime Minister"s statement. These principles
    are directly aligned with the Prime Minister"s
    statement. The National Indigenous Council
    principles are designed to secure "improved social
    and economic outcomes from [the Indigenous]
    land base, now and into the future, but in a way
    that maintains Indigenous communal ownership

    While the intention to build economic
    independence on Indigenous land is welcomed
    and desirable, the Native Title Report 2005 argues
    that there are concerns about the content of the
    Indigenous Land Tenure Principles.

    The Native Title Report 2005 argues that
    individual lease options will not improve
    economic and social outcomes on Indigenous
    land. While land that is Indigenous-owned,
    controlled or set aside for the use of Indigenous
    peoples comprises approximately 16 percent
    of the area of Australia, the bulk of it is very
    remotely located and lacking the most basic
    infrastructure. This is one of the primary
    impediments to economic development.

    Furthermore, under existing arrangements, it is
    currently possible for Indigenous people to take
    out individual leases in every state and territory.
    Despite this existing opportunity, economic
    development has not flourished to date.
    Individual leasing of communally owned land is
    not, in itself, the solution to improve social and
    economic outcomes for Indigenous peoples.

    The Native Title Report 2005 argues that in their
    current form, the Indigenous Land Tenure
    do not consider the various
    factors that impede opportunities for
    economic development on Indigenous
    land. They include:

    • native title law allows
      very few rights to land
      development and land assets. In
      most cases, native title provides traditional
      owners with little more than access to
    • much of the land under native title
      and land rights is marginal, arid desert
      or geographically isolated, and there
      is limited potential for economic
    • much of the land under native title or land
      rights lacks the most basic infrastructure
      to support development projects;
    • the entities with responsibility to progress
      native title interests to land,1 have either
      no funding, or insecure funding;
    • many Indigenous people in remote
      communities lack access to employment,
      and the means by which to repay
      mortgages or other debts to land; and
    • to date, there has been a lack of
      government policy to support economic
      development initiatives on Indigenous

    In order to promote economic
    development and to support
    housing development,
    governments must increase
    resources for both infrastructure
    and enterprise development projects.
    Government policy and commitment
    is required to support and sustain these
    activities over time. Maintaining traditional
    owner governance over land is essential in
    the development of these projects.

    International experience tells us that carving
    Indigenous land into small private land parcels
    creates more problems than it solves. Other
    countries, including NZ and USA, have attempted
    to remove communal land rights, and they are
    now reversing these policies. Australia should
    not make the mistakes that have been made

    In addition to presenting arguments about land
    tenure, the Native Title Report 2005 outlines
    human rights concerns with the Indigenous Land
    Tenure Principles
    Principle 4 proposes that in order to facilitate the
    process of granting individual leases:

    the consent of traditional owners should not
    be unreasonably withheld
    for requests for
    individual leasehold interests for contemporary

    involuntary measures should not be used
    except as a last resort and, in the event of any
    compulsory acquisition, strictly on the existing
    basis of just terms compensation2

    This principle is at odds with the very purpose
    of land rights and native title rights. The Native
    Title Report 2005
    argues that Principle 4 is
    not consistent with Australia"s obligations to
    protect the rights of its Indigenous citizens,
    and if implemented, would breach the Racial
    Discrimination Act 1975

    For traditional owners, the proposed Indigenous
    Land Tenure Principles
    may represent a foreign
    and Western view of wealth creation, which may
    be at odds with traditional views of communal
    ownership and communal tenure. Therefore,
    the Native Title Report 2005 advocates the
    requirement for parties to obtain the free, prior
    and informed consent of traditional land owners
    before any amendments are made to legislation
    or policy affecting Indigenous interests to land.

    See the NIC principles online at:

    See the Native Title Report 2005 online at
    or for a hard copy contact 1300 369 711.

    Photo - ocean near Broome, WA

    This ocean image is taken near Broome, Western Australia. In the foreground is a midden
    (a sandbank covered with shells discarded by the local people after the contents were
    eaten). Below the midden are the mangroves where all types of seafood is hunted and
    collected and finally, the beautiful warm waters. © Wayne Quilliam.

    1 Prescribed Bodies Corporate
    2 National Indigenous Council, Indigenous Land Tenure Principles,
    2005, emphasis added, <>


    This fire image was taken in the Kimberleys in Western Australia, as with many
    Aboriginal groups throughout Australia fire is used to regenerate the land, the natural
    process has been used for tens of thousands of years to sustain the earth.
    © Wayne Quilliam.

    12 months on ... the new arrangements for Indigenous affairs

    In last year's Social Justice Report I committed to monitoring how the new
    arrangements for Indigenous affairs impacts on
    Aboriginal and Torres Strait Islander peoples"enjoyment of their human rights.

    A key human rights issue in the new
    arrangements is the quality of Indigenous
    peoples" participation.

    Human rights law requires that when
    governments make decisions about issues
    such as: Indigenous peoples" socio-economic
    development; self-determination; right to
    non-discrimination or their right to different
    and appropriate treatment as minority cultural
    groups, that Indigenous peoples are able to
    participate in the decision-making process.
    Effective participation ensures that decisions are
    not imposed on people and communities.

    The Social Justice Report 2005 identifies four
    elements to ensuring effective participation:


      Gaps still remain in Indigenous representation
      at local, regional and national levels.

      Regional representative bodies should be
      established as soon as possible, particularly
      through Regional Partnership Agreements


      The new arrangements promise
      improvements to the way governments
      engage with Indigenous peoples and

      The creation of regional Indigenous
      Coordination Centres (ICCs), or government
      "one stop shops", are one way this may be
      achieved, however, 12 months on it is still too
      early to assess their success.


      The new arrangements aim to improve the
      lives of Indigenous peoples - their health,
      education, communities etc.

      But without the existence of better
      monitoring and evaluation processes it is
      difficult to tell whether the new arrangements
      are improving things or not.


      Shared Responsibility Agreements (SRAs),
      highlight the need for the effective
      participation of Indigenous peoples, are
      discussed in detail below.

    Shared Responsibility Agreements

    In examining whether a SRA is in breach
    of human rights, it is important to look at
    each agreement individually and not make
    generalisations. Factors to take into
    account include whether a SRA
    was negotiated according
    to the principle
    of free, prior
    and informed
    consent. There is
    also the question
    of what is being
    provided through a

    A SRA that provides
    business opportunities,
    community facilities or
    training places is likely to
    conform to human rights

    A SRA that makes the provision of health
    services, food, water and sanitation dependent
    on the community providing something in
    return could be in breach of human rights

    For further information on the articles in this Community Guide see the following fact sheets available on the Human Rights and Equal Opportunity Commission"s website at

    Fact Sheet One: Reforms to the Community Development Employment Program

    Fact Sheet Two: Shared Responsibility Agreements

    Fact Sheet Three: Participation and engagement of Aboriginal and Torres Strait Islander peoples in decision making


    The Indigenous Health Challenge: A national commitment to health equality

    Health Fact Sheet One: The health status of Aboriginal and Torres Strait Islander peoples

    Health Fact Sheet Two: The socio-economic status of Aboriginal and Torres Strait Islander peoples

    Health Fact Sheet Three: Equality of opportunity and health of Aboriginal and Torres Strait Islander peoples


    Photo - Commissioner Calma speaking

    Aboriginal and Torres Strait Islander Social Justice
    Commissioner Tom Calma discussing a range of
    Indigenous issues at a recent community forum


    Key terms

    What are the new arrangements in Indigenous affairs?

    After the abolition of the Aboriginal and Torres Strait Islander Commission (or ATSIC) the Australian Government put in place a series of reforms that are known as the "new arrangements for Indigenous affairs". Key elements of these are ICCs, SRAs and RPAs.

    What are ICCs? (Indigenous Coordination Centres)

    The Office of Indigenous Policy Coordination (OIPC) was established in Canberra and each capital city to coordinate policy nationally and ICCs have been set up in each of the former ATSIC regions to deliver a whole-of-government approach to programs and service delivery on a regional basis and to collaborate with Indigenous communities at the local level.

    What are Shared Responsibility Agreements?

    The term "Shared Responsibility Agreement" describes an agreement that is based on the principle of mutual obligation between Aboriginal and Torres Strait Islander communities and groups and Australian governments.

    What is mutual obligation?

    In practice, this means that governments agree to provide things to a community on the condition that the community agrees to provide something in return.

    What are RPAs? (Regional Partnership Agreements)

    RPAs will set out how governments and the community will engage at the regional level. Indigenous regional representative structures, when created, will play a key role in the development of RPAs.

    What is free, prior and informed consent?

    Free, prior and informed consent describes a process that should be followed by all people when they want to do business on Indigenous peoples" land or when they develop policies that impact on Indigenous peoples. The free, prior and informed consent process contains the following elements:

    • Free - implies no coercion, intimidation or manipulation;
    • Prior - implies that enough time has been allowed for meaningful community consultation and consensus building;
    • Informed - implies that all the information necessary to make a decision has been provided and understood.
    • Consent - means a community has the right to withhold consent to a proposal if they do not agree to it.

    For further information refer to the Engaging the marginalised: partnerships between indigenous peoples, governments and civil societies brochure on the HREOC website at:

    Handy Contacts For The Human Rights And Equal Opportunity Commission

    Call 1300 369 711 to order hard copies and CD-ROMs of the Social Justice and Native Title Reports
    and for additional copies of this Community Guide

    The Social Justice Report 2005 is available at

    The Native Title Report 2005 is available at

    If you have any feedback please email us at