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Aboriginal Law Bulletin (ALB)
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Nettheim, Garth --- "Human Rights for Aboriginal People in the 1980's: Conference Report" [1981] AboriginalLawB 21; (1981) 1(2) Aboriginal Law Bulletin 3

Human Rights for Aboriginal People in the 1980's:
Conference Report

Garth Nettheim

This Conference, arranged by the Aboriginal Law Research Unit, the University of NSW Law Faculty and the International Commission of Jurists (Australian Section), was held at the University of NSW on 31 October and 1 November. Financial assistance was provided by the Law Foundation of NSW. Some 200 people attended.

Senator Neville Bonner opened the Conference. He noted that 'the main area of conflict was, and still is, land', and went on to trace the failure of successive government policies for Aboriginal people. There remained a need, he said, for positive discrimination, notably through programmes designed and administered by Aborigines. 'But the most significant factor in the future rests on our ability to attain economic independence, and the way to this lies in the recognition of our right to land and the legal implementation of this right'.

International Obligations

The keynote speaker in the first session, 'Australia's International Obligations', was former Prime Minister, the Hon. E. G. Whitlam. Experience, he said, had vindicated his 1972 statement that Australia would be judged internationally by its treatment of her Aboriginal people. And he agreed with Senator Bonner that 'Aboriginal land rights are basic to the identity of Australia's Aborigines'. He criticised Australia's failure to ratify ILO Convention No. 107 which provides some recognition to the land rights of indigenous people. Mr. Whitlam also criticised Australian performance in regard to Aboriginal people, by reference to other international standards.He concluded by referring to various international agencies through which political pressure, from African countries in particular, might be generated to persuade the Federal Government to 'cease to condone the racial policies of the Court and Bjelke-Petersen governments'.

In the panel that followed Mr Whitlam's speech, Jim Hagen, former Chairman of the National Aboriginal Conference, spoke of the frustration that had led the NAC to remove the Aboriginal cause into the international arena by taking the Noonkanbah issue in 1980 to the U.N. Sub-commission on Prevention of Discrimination.and Protection of Minorities in . Geneva. Gary Foley of N.A.I.H.O.spoke about international lobby agtivity, that he and others had been engaged in and the significance of the report on Australia's Aboriginals by the World Council of Churches, Daniel Rowland of the University of NSW Law School discussed the relevance of various international human rights conventions and bodies. He also questioned the adequacy of Australian responses. Dr Keith Suter of the United Nations Association, spoke about 'the human rights revolution', the significance of non-governmental organizations, and the increasing international attention likely to be focussed on the position of Australian Aboriginals.

Land Rights - Implementation

The topic for the second session was 'Land Rights - Implementation'. The first speaker was Senator Peter Baume, federal Minister for Aboriginal Affairs. He stated that 'Aboriginals and Torres Strait Islanders representing 1.2% of the population now hold 9.6% of the land area of Australia. They hold some 738,032 sq. kms - more than half of it inalienable freehold. This has been achieved since 1976'. The minister restated the four principles which need to be satisfied by the Queensland Government in its current review of the status of Aboriginal and Islander reserves: (1) the integrity of the present reserve boundaries be maintained; (2) secure tenure for occupants and preservation of their rights to use the land; (3) local communities to play a significant role in the management of reserves; (4) full consultation with Aboriginals and Torres Strait Islanders before any decision is made. He reiterated federal Government preference for co-operation with State Governments rather than reliance on overriding federal legislative power, but that Commonwealth intervention might be necessary in the last resort. He went on to criticise what he saw as inadequate performance on land rights by the Government of NSW where 'All we have is an indication of intention, made during the last State election, to transfer a miniscule part - only 109 sq.. king of the land area - from a Statewide elected Aboriginal Lands Trust to several locally based Aboriginal bodies'. He also stressed that the implementation of a policy of land rights might take different forms in different parts of the country.

Senator Susan Ryan, ALP shadow minister for Aboriginal Affairs, spoke next. She pointed out that the major. part of Aboriginal land holdings were constituted by the operation of the Pitjantjatjara Land Act in South Australia, and the Aboriginal Land Rights (Northern Territory) . Act.: The more difficult task would be to secure adequate land rights elsewhere in the country. She referred to her private member's bill concerning Queensland and the the Keane Committee proposals for New South Wales. She considered that, politically, 'community opinion is on the side of land rights', and that 'no government or political party has been damaged by supporting land rights'. 'Bipartisanship', she added, 'neutralises the racists'. But, in the absence of political will at State level to concede land rights, as in Queensland, federal intervention was essential. She concluded, 'Land rights is ultimately a national issue'.

Pat O'Shane, formerly task force co-ordinator for the Keane Committee in 'NSW spoke of the findings of the Committee on issues of health, housing, employment and education. She stated that Aborigines in this country have been over-administered and that 'we could do a far better job of administration of our own affairs. In fact we have proved that we can'. She went on to outline' the Keane Committee's proposals on land rights in New South Wales. Dr Ken Maddock, anthropologist from Macquarie University, spoke about problems in the operation of the Northern Territory land rights legislation; the concentration of land rights decision-making in the two major land councils; the system of permits for access to Aboriginal land; and the use by Land Councils of the large sums of money to come from mining developments.

Customary Law

The third session focussed on Customary Law. The first speaker was Bruce Debelle who has been responsible for the Australian Law Reform Commission's reference on Aboriginal customary law. He referred to the variability of Aboriginal communities in size, location, and retention of traditional law; problems of secrecy; and the human rights issues presented by traditional marriage rules and punishments. He discussed a number of possible means by which Aboriginal law might be accommodated in Australian law, and also the possibility of developing justice mechanisms within Aboriginal communities.

Chris Kirkbright, a recent Aboriginal law graduate, set out to present an urban, 'mixed-blood' viewpoint, and was critical of suggestions that such people had no traditions or values requiring accommodation by the law. Pam Ditton of the Central Australian Aboriginal Legal Aid Service was critical of the Commission for inadequate concern for women's perspectives, and also for inadequacy of consultation generally. David Weisbrot of the University of NSW:Law: -School discussed the means by which recognition had beenn given to customary law in other countries, notably Papua New Guinea. He was critical of the Commiccion's failure to consider the overseas ,experience, and also of its apparent conception of Aboriginal customary law as static.

Workshop discussions followed and produced a number of resolutions directed to the New South Wales government in relation to land rights and to the Australian Law Reform Commission concerning customary law.

Makarrata: What can be achieved?

In the final session, 'Makarrata or Treaty - What can be achieved? Who will be the parties?', Dr H. C. Coombs, Chairman of the Aboriginal Treaty Committee, suggested that preparation of the Aboriginal position on the proposed agreement might follow the model of the convention processes that led white Australia to acceptance of the Commonwealth Constitution. Lyall Munro Snr., a member of the Makarrata sub-committee of the National Aboriginal Conference, talked of the background to the NAC's work on the Makarrata proposal and of its work to date. He presented the 24 demands put to the Government by the NAC in Melbourne early in October.

Michael Dodson invoked the vivid metaphor of a stolen and stripped motor car shell as representing an Aboriginal perspective on what white Australia was now proposing to return to the original owners. Bryan Keon-Cohen sketched ways by which the Aboriginal people might attempt to assert sovereign status in negotiations. He also'discussed the,. prospects, of incorporating a Makarrataa agreement in the Commonwealth Constitution. Paul Coe of the Aboriginal Legal Service (NSW) Ltd. said that the Makarrata will be meaningless unless the Australian people recognize Aboriginals as a sovereign.people. In the absence of such national recognition, international recognition would be sought. He concluded: 'The fight will still go on. And the longer the fight goes on, the better we're becoming equipped at it.'

In closing the Conference Dr Coombs welcomed the growing confidence and experience of Aboriginal people. He saw the Makarrata issue as being about, not what white Australia could give, but what white Australia should acknowledge. Further, settlement of outstanding issues will be not only for the benefit of Aboriginals but equally, if not more so, for the benefit of white Australia.

The proceedings are to be published. Inquiries may be directed to Ms Jane Trethewey, Faculty of Law, University of NSW, P.O. Box 1, Kensington. N.S.W., 2033

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