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The policy that binds the right of the indigenous people of Australia

Introduction

The UN Declaration on the Rights of Indigenous Peoples recognises the rights of indigenous peoples, such as equality and non-discrimination and their cultural integrity and collective rights provided under Article 2; self determination, autonomy and participation as provided under Articles 3 and 4; and their rights to lands, territories and resources, development with identity, as provided under Articles 25, 26, 28, 29, and 32 (Office of the High Commission, 2013). Australia is a signatory to the UN Declaration. This essay will explore the political commitment and policy measures in regard to protection of rights of indigenous people.

Whether policy measures bind rights of indigenous people

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From 1967, the policy of integration was limited to “self management” where the aboriginal peoples were extended general social services and measures were employed to permit aboriginal communities control over their own affairs (Armitage, 2011, p.21). The establishment of the Commonwealth legislation after the amendment of the 1967 Australian Constitution led to measures such as the 1980 Aboriginal Development Commission or the Commonwealth Department of Aboriginal Affairs (Armitage, 2011, p.21). They provided aboriginals the means of developing own organisation and services. Current legislation provides them with the right to organise themselves and establish an independent identify within the society (Armitage, 2011, p.21).

Government’s action with respect to sovereignty and national land rights

Irrespective of the policy measures, the political implementation of the measures has not been in compliance with the UN Declaration. If considering the governments from 1972 Whitlam to the 2013 Abbott Government, the policy measures seem to ignore the elements of symbolism and Indigenous rights. Whitlam government (1972 – 1975) abolished the policy of assimilation and introduced self-determination (Maihāroa & Synott, 2016, p.18). It created the National Consultative Committee where indigenous people could elect indigenous members. However, in reality, the government did not provide much elective power (Maihāroa & Synott, 2016, p.18). Likewise, programmes such as the 1972 Commonwealth Department of Aboriginal Affairs focus on indigenous issues failed to effectively deliver the programmes (Maihāroa & Synott, 2016, p.19). It also created the Woodward Royal Commission into Land Rights in 1972 and enacted the Northern Territory (NIT) Land Rights Act 1976 (Ch). Though this Act returned 40% of the Northern Territory, the land was mostly economically unworkable and uninhabited by non-indigenous people (Maihāroa & Synott, 2016, p.19.). Claims for sovereignty and national land rights in the subsequent governments were rejected. The recent Abbott government (2013-2015) focussed on the socio-economic areas such as health and education (Maihāroa & Synott, 2016, p.21). The year 2013 saw the adoption of human rights-based approach in socio-economic policies. An example was the National Aboriginal and Torres Strait Islander Health Plan that emphasis on a health system that respects aboriginal culture and is based on non-discrimination involving a participatory process (Commonwealth of Australia , 2013). Other examples could be the National Aboriginal and Torres Strait Islander Suicide Prevention Strategy and the 2009 National Partnership Agreement on Indigenous Early Childhood Development (The Department of Health, 2013; The Department of Health, 2014). None of these policy measures touched upon the claims for sovereignty and national land rights. The aboriginal and Torres Strait Islander people face life outcomes that are different from those of non-Indigenous population. There has been a continuous dispossession and racism against the indigenous people. As such, there is a huge gap in terms of expectancy, health life and imprisonment rates (Amnesty International Australia, 2020). The government inactions within current policies do not comply with the UN Declaration. This is particularly true when it comes to indigenous rights to self-determination, practise and maintain their unique cultures, or their participation in policy development and implementation (Cooper, 2011). Self-determination implemented in Australia could be considered a failed experiment as it was conceived without proper infrastructure or resources so as to ensure sustainability. Policy makers adopt a deficit-based perspective towards Aboriginal and Torres Strait Islander people. As a result, there is no implementation of policies that provide for indigenous equality and political representation (Brown, 2009)

Assimilation policies

Attempts such as the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2013 failed to protect indigenous people (Castan, 2013). A 2017 report by UN special rapporteur Victoria Tauli-Corpuz notes Australia's inability to close the gap between the indigenous and the mainstream population. There is over-incarceration of the indigenous people despite the two decades of economic growth, significantly high cases of violence against women, incarceration and child removal and a lack of progress in the area of education, health and employment standards (Bridget Brennan, 2017). The alienation and indifference are non-compliance with the UN declaration. The policy makers seem to base reasoning on colonial representation of aboriginals without having regard to their cultural understanding and symbolism. Such view point could be seen in the 1961 definition by the Native Welfare Conference of Federal and State Ministers of the assimilation policy (Australian Law Reform Commission, 1986). Assimilation requires aborigines and part-Aborigines to live in the same manner as those of other Australians. They are required to be members of a single Australian community with the same rights, privileges, customs and beliefs as other Australians (Reynolds, 1972, p.175). The assimilation policy was seen as a reconciliation system that would lay the foundations for forgiveness by providing provision for appropriate forms of justice (Short, 2003). Legislations were enacted to that effect. The Council for Aboriginal Reconciliation Act 1991 is one example. Its object, as provided by Section 5, is to establish a formal process of reconciliation between Aborigines and Torres Strait Islanders and other Australians. Section 5 further states that such reconciliation will appreciate the cultures and achievements of Aboriginal and Torres Strait Islander and their unique position as indigenous peoples of Australia. The 1991 Act is criticised for basing the reconciliation process on a restrictive policy framing coupled with the lack of political (Short, 2003). Moreover, the reconciliation process has never ended. Reconciliation process took different discourses. First, it was establishment of the Council for Aboriginal Reconciliation (CAR) as the key driving body for reconciliation. It issued papers regarding history of race relations and created resources for group activities to be used in the communities, councils, schools and universities (Elder, 2017). Second was the decision of Mabo v Queensland (No.2) ([1992] HCA 23; (1992) 175 CLR 1), relating to a claim by group of four Meriam men and one Meriam woman against Queensland and the Commonwealth on their 'native title' to the Murray Islands. The High Court upheld their argument protecting the land rights of the Meriam people, who are the traditional owners of the Murray Islands in the Torres Strait (AIATSIS, 1992). The Mabo ruling led to the enactment of the Native Title Act 1993 (Cth). The Act 1993 aims to recognise and protect native title and establish a mechanism to determine claims to native title. Its preamble defines Aboriginal peoples and Torres Strait Islanders as descendants of the inhabitants before European settlement. It also recognises the High Court decision in Mabo that rejected the doctrine that Australia did not belong to anyone at the time of European settlement (Jagot, 2017). The Act 1993 was challenged in Western Australia v The Commonwealth ([1995] HCA 47), which upheld its enforceability. The third was the 1997 Human Rights and Equal Opportunity Commission report that highlighted ill treatment of indigenous children (Elder, 2017). However, new discourse shifted the focus from understanding race relations to land rights. From there, at the final months of reconciliation, the discourse focused on non-Indigenous contributions to the reconciliation. This divided the reconciliation process (Elder, 2017). Reconciliation has never completed although there were recent developments such as 2009 Reconciliation Australia campaign to solicit support from Australians and the most recent Recognise campaign. The latter seeks indigenous people’s place in the Constitution. However, there is a split of voices in relation to this campaign. Then came the December 2015 national Referendum Council to advise on a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution (Elder, 2017). However, the Turnbull government has rejected the referendum in 2017 on the ground this would contradict the principle of equal civic rights. The rejection has been criticised as lacking any form of reconciliation and recognition (Hunter, 2017). Given the developments since the 1961 definition provided by the Native Welfare Conference of Federal and State Ministers, the assimilation process has never been consistent or largely effective. Except for Mabo and the subsequent Act Native Title Act 1993 (Ch), there still remains a huge gap between the indigenous population and non-indigenous population with the former in disadvantaged positions.

(Lack of) Understanding social determinants

The 2017 report by UN special rapporteur Victoria Tauli-Corpuz observed that Indigenous population is at grave social disadvantage in terms of human rights and education, health and employment standards (Bridget Brennan, 2017). Explaining the position of policy makers’ understanding of social determinants from health policy perspective, social determinants signify the conditions in which the indigenous people are born, grow, work, live, and of their age. It is observed that such determinants of indigenous health and rights recognised in policies are contested. It is mostly the importance of culture that is recognised (George et al., 2019). This means the overall social determinates of indigenous people are not considered. It was also observed that social determinants were generally acknowledged in health policies. However, the policies do not recognise the broader settings that identify health inequity. As a result, it affects the distribution of socio-economic resources (Fisher et al., 2016, p.553). Thus, if the key determinants are not even recognised, any concerned policy framework will lack the ability to advance and protect the rights of indigenous people. There seems to be a ‘Deficit discourse’ mode of thinking adopted to represent indigenous people in a negative, deficient and failure narrative (Fforde et al., 2013). The deficit approached is intertwined with the notion of ‘authenticity’. This complies with the models of identity embedded within race paradigms. Such deficit approach is interwoven with aspects of representation, policy as well as expression (Fforde et al., 2013).

Self Assertion is the key

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The deficit discourse is reflected in the absence of constitutional protection to indigenous people, failure of political implementation of appropriate measures, non- compliance with the UN Declaration, and consistent rejection by the government of the claims for sovereignty and national land rights. The introduction of the self-determination policies in the 1970s resulted in the government leaving out implementing community development and collaborative engagement. The absence of a single policy approach and prevalence of several policies and programmes left the organisations and communities to conduct self governance of the programmes. There has been successive government’s failure to invest in Indigenous self-governance (Smith, 2008 , p.86). Irrespective of this, indigenous people have been addressing complex internal relationships and representation issues. One example is that of the Council of Australian Government (COAG) trials that started in 2002–03 where indigenous community came to manage 90 different buckets in three years (Smith, 2008 , p.86). This is an example of self governance by the indigenous organisation and communities that ensure protection of their rights. Another example is that of managing protected marine site. Traditional laws enabled indigenous communities to create sites and spaces that are protected and made exclusive in order to manage these areas. This could happen because of the sensitive forms of indigenous marine governance (Godden, 2019, p.143). In this time where there is a decline of the environment and the biodiversity, indigenous communities are making stronger assertion in the area of managing the protected sites, including the marine areas (Smyth, 2008). Mabo and the enactment of the Native Title Act 1993 (Cth) are examples of self assertion of rights being the key to ensuring rights of the indigenous people.

Conclusion

This essay has found that weak political commitment has deprived the inherent rights of the original settlers. The root of a remedial action will lie in understanding and including indigenous knowledge in regard to policy measures. Recognition of inherent rights of indigenous population cannot commence without understanding them. The assimilation policy should be reversed. Instead of assimilating the indigenous, the non-indigenous population must assimilate with the original settlers. This means the deficit lies with the policy makers and such deficit could be removed by policies that actively advance indigenous participation in the form of more self governances.

Bibliography

AIATSIS, 1992. The Mabo Case. [Online] Available at: https://aiatsis.gov.au/explore/mabo-case [Accessed 02 January 2021].

Amnesty International Australia, 2020. The rights of Indigenous Peoples. [Online] Available at: https://www.amnesty.org.au/how-it-works/what-are-indigenous-rights/#:~:text=Indigenous%20peoples%20have%20the%20right%20to%20own%2C%20use%20and%20control,and%20resources%20(Article%2026). [Accessed 02 January 2021].

Armitage, A., 2011. Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand. UBC Press.

Australian Law Reform Commission, 1986. Recognition of Aboriginal Customary Laws (ALRC Report 31). Australian Law Reform Commission.

Bridget Brennan, 2017. Australia's progress on Closing the Gap 'woefully inadequate', UN says. [Online] Available at: https://www.abc.net.au/news/2017-09-11/closing-the-gap-progress-woeful-un-says/8892980 [Accessed 02 January 2021].

Brown, N., 2009. History, law, and policy as a foundation for health care delivery for Australian indigenous children. Pediatric Clinics of North America , 56(6), p.1561.

Castan, M., 2013. Closing the Gap on the Constitutional Referendum. Indigenous Law Bulletin, 8, p.13.

Commonwealth of Australia , 2013. NATIONAL ABORIGINAL AND TORRES STRAIT ISLANDER HEALTH PLAN 2013–2023. [Online] Available at: https://www1.health.gov.au/internet/main/publishing.nsf/content/B92E980680486C3BCA257BF0001BAF01/$File/health-plan.pdf [Accessed 02 January 2021].

Cooper, D., 2011. Closing the gap in cultural understanding: social determinants of health in Indigenous policy in Australia. In Aboriginal Medical Services Alliance of the Northern Territory (AMSANT). Darwin, 2011.

Elder, C., 2017. Unfinished business in (post) reconciliation Australia. Australian Humanities Review , 61 , pp.74-93.

Fforde, C. et al., 2013. Discourse, deficit and identity: Aboriginality, the race paradigm, and the language of representation in contemporary Australia. Media International Australia, 149(1), pp.162-73.

Fisher, M. et al., 2016. To what extent do Australian health policy documents address social determinants of health and health equity? Journal of Social Policy, 45, p.545.

George, E., Mackean, T., Baum, F. & Fisher, M., 2019. Social determinants of Indigenous health and Indigenous rights in policy: A scoping review and analysis of problem representation. International Indigenous Policy Journal, 10(2).

Godden, L., 2019. The Evolving Governance of Aboriginal Peoples and Torres Strait Islanders in Marine Areas in Australia. In N. Bankes, S. Allen & O. Ravna, eds. The Rights of Indigenous Peoples in Marine Areas. Bloomsbury Publishing.

Hunter, F., 2017. Government rejection of referendum proposal sends 'shockwaves' through Indigenous community. [Online] Available at: https://www.gooriweb.org/news/2000s/2017/age27oct2017.pdf [Accessed 02 January 2021].

Jagot, J., 2017. The Rule of Law and Reconciliation. [Online] Available at: https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-jagot/jagot-j-20171020#_ftn6 [Accessed 02 January 2021].

Maihāroa, K.T. & Synott, J.P., 2016. Peacebuilding and the Rights of Indigenous Peoples: Experiences and Strategies for the 21st Century. Springer International Publishing.

Office of the High Commission, 2013. The United Nations Declaration on the Rights of Indigenous Peoples. [Online] Available at: https://www.ohchr.org/documents/issues/ipeoples/undripmanualfornhris.pdf [Accessed 02 January 2021].

Reynolds, H., 1972. Aborigines and Settlers: The Australian Experience 1788-1939. Cassell Australia, Sydne.

Short, D., 2003. Reconciliation, assimilation, and the indigenous peoples of Australia. International Political Science Review , 24(4), pp.491-513.

Smith, D., 2008. From collaboration to coercion: a story of governance failure, success and opportunity in Australian Indigenous affairs. The Australian National University , p.75.

Smyth, D., 2008. Just Add Water? Taking Indigenous Protected Areas into Sea Country. In D. Smyth & G. Ward, eds. Protecting Country: Indigenous Governance and Management of Protected Areas. Australian Institute of Aboriginal and Torres Strait Islander Studies.

The Department of Health, 2013. National Aboriginal and Torres Strait Islander suicide prevention strategy. [Online] Available at: https://www1.health.gov.au/internet/main/publishing.nsf/Content/mental-pub-atsi-suicide-prevention-strategy [Accessed 02 January 2021].

The Department of Health, 2014. National Partnership Agreement on Indigenous Early Childhood Development (NPA IECD). [Online] Available at: https://www1.health.gov.au/internet/main/publishing.nsf/Content/oatsih-npa_iecd#:~:text=The%20National%20Partnership%20Agreement%20on%20Indigenous%20Early%20Childhood,2008%2C%20by%20the%20Council%20of%20Australian%20Governments%20%28COAG%29. [Accessed 02 January 2021].


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