Final report of the Council for Aboriginal Reconciliation

As discussed in Chapter 1, Australia is the only Commonwealth country that has never signed an official treaty with its indigenous peoples. Finding out and reporting about whether or not a formal document or documents would advance reconciliation has been one of Council's tasks under its Act.

One of the eight key issues of Council's first term was seeking agreement on whether the process of reconciliation would be advanced by a document or documents of reconciliation. It sought to raise public awareness about this issue. Two conferences sponsored by Council - the Position of Indigenous People in National Constitutions, Canberra 1993, and a Forum at Old Parliament House, Adelaide 1994 - concluded that reconciliation and the nation would be advanced by a document of reconciliation. Council did not take a formal position on this issue in its first term.

I think there should be a document. I think this should also be part of our Constitution, so we can reconcile the past.

Raymond Finn, ex-Colebrook home kid (1999)

Momentum builds

Consultations leading up to Council's 1995 Social Justice Report and the 1997 National Reconciliation Convention in Melbourne confirmed growing public support for the notion of a document.

The 1995 Social Justice Report Going Forward: Social Justice for the First Australians made it clear that the 'treaty debate' would undoubtedly continue for some time. It also noted that the nation should acknowledge that agreements between Aboriginal and Torres Strait Islander communities and various sectors of the wider community, formalised in a document or documents, would assist the process of reconciliation.

A significant element of Council's 1995-1998 Strategic Plan related to obtaining the views of a wide cross-section of Australians on the need for, content, and manner of implementation of a document or documents of reconciliation.

The 1997 Australian Reconciliation Convention was a turning point in the reconciliation process. Participants at the Convention strongly urged the Council to produce a document or documents of reconciliation in time for the centenary of Federation.

The convention coincided with the tabling in the Commonwealth Parliament of the Human Rights and Equal Opportunity Commission's Bringing Them Home Report, and revealed overwhelming public support for the healing of relations between the nation and its first peoples.

The outcomes of the 1997 Convention led Council to develop a strategic plan that would include pursuing documents of reconciliation.

Goal 1 of the Strategic Plan for Council's final third term (1998-2000) was to 'Achieve recognition and respect for the unique position of Aboriginal and Torres Strait Islander peoples as the indigenous peoples of Australia through a national document of reconciliation and by acknowledgment within the Constitution of this country'.

Headed by the new chairperson Dr Evelyn Scott, the Council was convinced that documents would help Australia move towards becoming a reconciled nation, and that it should set in place a process to consult the Australian people. In order to move the debate beyond theory and generalities, the Council decided that the best way to proceed would be to provide a draft for public discussion.

Chairperson, Dr Evelyn Scott, and other Council members speaking to the media about the Draft Document for Reconciliation at its launch in June 1999.

Photo: Karen Mork

Developing the documents and consulting the nation

Council decided in 1998 that any document of reconciliation should express both the symbolic and practical aspects of reconciliation.

After much deliberation about its content, Council finally launched a Draft Document for Reconciliation on 3 June 1999. It included an aspirational Draft Declaration for Reconciliation and the outlines of four draft national strategies to advance reconciliation. These were: A National Strategy for Economic Independence ; A National Strategy to Address Aboriginal and Torres Strait Islander Disadvantage ; A National Strategy to Promote Recognition of Aboriginal and Torres Strait Islander Rights ; and A National Strategy to Sustain the Reconciliation Process .

Following the public launch, Council embarked on a nation-wide consultation process to record the views of the Australian people towards the draft document and reconciliation generally.

As a first step, the Council circulated the draft and an accompanying explanatory kit to tens of thousands of organisations, groups and individuals, including national peak bodies, all Federal, State and Territory members of Parliament, all local governments and political parties.

The draft was discussed at more than 300 meetings across the country. Responses came from these public meetings, public submissions and from 3,000 individual response forms. Council also conducted a number of reference group meetings, inviting Aboriginal and Torres Strait Islander and wider community representatives, to give their comments on the draft declaration and strategies.

Do we need a reconciliation document? The rise of racist politics tells us that we do. We need to find a constitutional way to acknowledge our shared history, and our shared future.

Moira Rayner, Consultant, Dunhill Madden Butler Solicitors 1998

A Memorandum of Understanding between ATSIC and the Council ensured extensive Aboriginal and Torres Strait Islander participation in the process. ATSIC representatives co-chaired many regional meetings.

Council recognised that those who had taken part in the consultation process were more likely to be sympathetic to reconciliation and the Council's goals, but might not be truly representative of the nation as a whole. Therefore, Council decided to commission independent social research to objectively test the draft Document. This qualitative and quantitative survey of opinion among the wider community and Aboriginal and Torres Strait Islander peoples indicated broad support for reconciliation and majority support for a document. However, as detailed in Chapter 4, it also highlighted that reconciliation required further community education and the resolution of many issues on which Australians were divided.

After considering the results of these consultations, Council finalised its proposals in late April 2000.

A fuller examination of Council's consultation process can be found in Chapter 4 of this report. A summary of the social research is also included in Chapter 4 and fuller survey results are available at Council's website at www.reconciliation.org.au

After consulting the nation about its Draft Document the Council decided that the best way to engage the nation and bring all Australians with them on the journey towards reconciliation, was to release two succinct documents that would capture both the aspirational and practical requirements of reconciliation.

Appendix 1 contains the Australian Declaration Towards Reconciliation and the four strategies from the Roadmap for Reconciliation .

Council presented the documents to the largest gathering of community and national leaders in Australia's history. It included Aboriginal and Torres Strait Islander leaders, the Governor-General, the Governor of NSW, the Prime Minister, the Deputy Prime Minister and Leader of the National Party, the Leader of the Opposition, State Premiers and Chief Ministers, the Leader of the Democrats and the President of the Australian Local Government Association.

The occasion was broadcast live by SBS Television and was covered by more than 500 accredited media who took the message to the nation.

The magnitude of the event and the inspirational tone of many speeches was indicative of how far Australia had moved towards reconciliation during the life of the Council. The event also highlighted the many issues still to be resolved before Australia can be a truly reconciled nation.

These reconciliation documents were Council's recommendations to the Government and the Parliament about the 'nature and content' of documents of reconciliation and were therefore tabled in Federal Parliament in June 2000 in accordance with the Council for Aboriginal Reconciliation Act .

At the end of 2000, Council released four booklets to accompany the strategies in the Roadmap . These booklets are: Overcoming Disadvantage ; Achieving Economic Independence ; Recognising Aboriginal and Torres Strait Islander Rights; and Sustaining the Reconciliation Process . The booklets complement Council's strategies released in May because they discuss in greater detail actions and suggestions to the nation on how to deal with them.

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The Moeyoengu Koekapeer dancers from the Torres Strait awaiting the arrival of the national reconciliation documents at the Man O'War steps outside Sydney Opera House.

Photo: Effy Alexakis

The concept of documents

Over the last decade, the Australian community has embraced the concept of documents for reconciliation. Early in the life of the Council community groups began to produce their own documents of reconciliation to demonstrate commitments to the process. These documents kept coming in various types as Council's documents developed.

Some examples of documents coming out of the Australian community include reconciliation statements, pledges, charters, Aboriginal and Torres Strait Islander health and employment policies, partnership agreements and various types of specific and general commitments to the reconciliation process. These have come from governments, local councils, business, industry and community sectors. Council was encouraged to see the number that were drafted jointly with Aboriginal and Torres Strait Islander peoples.

Council has promoted agreements between parties at the local, regional and sectoral levels as a key part of the reconciliation process. Negotiated sectoral and regional agreements enable Aboriginal and Torres Strait Islander peoples to have greater control over their destinies.

The historic Cape York Regional Land Use Heads of Agreement was signed on 5 February 1996 by the Cape York Land Council, the Cattlemen's Union of Australia, the Australian Conservation Foundation, the Wilderness Society and the Peninsula Regional Council of ATSIC. It was the first such agreement on land use between Aboriginal and Torres Strait Islander interests, pastoralists and the environment movement.

President of the Cattlemen's Union of Australia, Mr John Purcell, and Executive Director of the Cape York Land Council, Mr Noel Pearson, after the signing of the Cape York Regional Land Use Heads of Agreement in 1996. (Including the hands of Hope Vale elder, Mr Peter Costello, and Executive Director of the Australian Conservation Foundation, Mr Jim Downey.)

Council regarded it as a model for reaching agreements that bypassed costly and often hostile court litigation.

In June 1998 Council hosted the launch of a guide prepared by the Australian Local Government Asso ciation (ALGA) Working Out Agreements: A Practical Guide to Agreements Between Local Government and Indigenous Australians .

ALGA's guide, produced in association with ATSIC and the National Native Title Tribunal, provides step-by-step advice for developing agreements and has led to many more agreements being reached.

Council is encouraged to see many organisations are proposing to adopt their own documents of reconciliation as part of their response to Council's documents. A fuller examination of commitments to Council's documents and to reconciliation generally, can be found in Chapter 8 of this report.

Public support for documents has also included support for Constitutional change that would recognise the unique first peoples status of Aboriginal and Torres Strait Islander peoples. The National Constitutional Convention in Canberra in February 1998 discussed constitutional recognition of Aboriginal and Torres Strait Islander peoples. Some of its conclusions were that a Preamble to the Constitution should include: acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders; recognition of Australia's cultural diversity; and a provision allowing ongoing consideration of Constitutional change.

Council Chairperson, Dr Evelyn Scott, publicly supported adding a preamble question to the Republic Referendum on the basis that any proposed preamble would acknowledge Aboriginal and Torres Strait Islander people as the original 'inhabitants and custodians' of Australia. She said such a preamble would contribute greatly to reconciliation. Such recognition remains a goal of the Council, even though it was not agreed in the 1999 Referendum.

We declare that a treaty with Aboriginal and Torres Strait Islander peoples is essential for effective reconciliation.

Extract from 'Delegates Response to the Draft Document for Reconciliation', Second National Youth Reconciliation Convention, Geelong, 1999.

Unresolved Reconciliation issues

As it comes to the end of its final term the Council recognises that there are many issues still to be addressed before reconciliation can be achieved.

Australia will not become a reconciled nation while there are differences in social and economic outcomes between Aboriginal and Torres Strait Islander peoples and other Australians, and a perception that Aboriginal and Torres Strait Islander peoples are denied their rights. All four strategies in Council's Roadmap for Reconciliation and the companion booklets to these strategies address some of the issues still to be resolved.

Council's two booklets: Overcoming Disadvantage and Achieving Economic Independence offer practical ways to resolve social and economic disadvantage in areas such as health, housing, education, and employment. They both propose that these outstanding issues be resolved through partnerships between Aboriginal and Torres Strait Islander peoples, governments, business and other sectors of the Australian community.

Council's publication Recognising Aboriginal and Torres Strait Islander Rights , is a different type of document that does not deal with the practical aspects of reconciliation. Instead it takes Australians into the complex arena of rights. The strategy invites all people to enter the debate and understand the issues that are central to the aspirations of Aboriginal and Torres Strait Islander peoples.

This booklet identifies outstanding rights based issues under the categories: Social Justice and Equality; Land Culture and Heritage; Self-determination and Political Participation; and Constitutional and Legislative Reform. It highlights the need for further action to resolve such matters as deaths in custody, native title, the Stolen Generations, Aboriginal and Torres Strait Islander law and the protection of Aboriginal and Torres Strait Islander cultures, heritage and languages.

These outstanding rights issues are different from, but equally as important as, the practical issues of economic independence and disadvantage. Aboriginal and Torres Strait Islander rights derive from citizenship and the unique 'first peoples' status of Aboriginal and Torres Strait Islander peoples.

There is an important connection between rights issues and the practical aspects of reconciliation. The denial of the enjoyment of rights underpins much of the social and economic disadvantage of Aboriginal and Torres Strait Islander peoples. The dispossession of many Aboriginal and Torres Strait Islander peoples from their lands and the removal of children from their families are some of the causes of disadvantage. Therefore the resolution of outstanding rights issues in relation to native title and the Stolen Generations is necessary for some Aboriginal and Torres Strait Islander peoples to achieve economic independence and overcome disadvantage.

The National Strategy to Recognise Aboriginal and Torres Strait Islander Rights also identifies community education and awareness as critical to the resolution of these outstanding issues. A properly informed community that understands the issues is more likely to lend the necessary support for Australia to become a reconciled nation.

Public education is an outstanding issue of reconciliation. This is a major focus of Council's National Strategy to Sustain the Reconciliation Process . The strategy introduces Reconciliation Australia Ltd, a new public body that will play a major role in educating the Australian community about reconciliation issues. The National Strategy to Sustain the Reconciliation Process , unlike the practically focused strategies concerning disadvantage and economic independence and the rights-based focus of the strategy addressing rights, also recognises the importance of symbolism. As well as education, it deals with symbols, protocols and leadership.

Part of Council's legislative requirement is to recommend a 'means of giving effect to' its reconciliation documents which were released in May this year. In May Council also released a discussion paper entitled Reconciliation Implementation and Framework Agreements Legislation . Council has now decided, on the basis of its own deliberations, public consultations and expert advice, that legislation would be an appropriate means of giving effect to its documents. Accordingly Council engaged expert consultants to assist in the task and has included in this report a piece of draft legislation for the Commonwealth Parliament and explanatory notes (see Appendix 3). Council also calls upon the governments of all States and Territories to enact complementary legislation.

It is my hope and that of other church leaders that in the important period between 2000 and 2001 we shall been able to move forward in that process of reconciliation. I believe there needs to be a formal document much like a solemn covenant between our respective peoples in which we seek forgiveness, ask for reconciliation and for the strength to move on together in the building of a truly just and equitable society here in Australia.

The Most Reverend Peter Hollingworth, Archbishop of Brisbane

This section presents an outline of the proposed legislation, which focuses on the main features of the proposal, the structure and the aims of the legislation. Appendix 3 to this report provides a more detailed discussion of the provisions, the options considered and the rationale for those pursued. The Council has taken the step of illustrating how those choices may be presented in legislation. It is not intended that the draft bill presented here represents an expert drafting exercise, indeed it has not had the benefit of consideration by the Office of Parliamentary Counsel. However, it does provide an impetus to pursue the legislation for those who support the Council's vision and it is a considered effort to indicate how the first steps may be taken toward resolving the issues that stand in the way of reconciliation.

The proposed legislation begins with a Preamble, interpretation and objective sections. These set out the Council's intention and aims in recommending the legislation and will provide guidance for interpretation of the Act.

Part 1 of the proposed legislation deals with the preliminary matters. It is then divided in four substantive parts namely:

Part 2 of the legislation will give recognition to the unique status of Aboriginal and Torres Strait Islander peoples and incorporate the Australian Declaration Towards Reconciliation into the legislation by attaching it as a Schedule to the Act. In the Council's documents, in particular, Recognising Aboriginal and Torres Strait Islander Rights , it is recommended that all legislation concerning Aboriginal and Torres Strait peoples carry such a recognition.

Part 3 of the legislation implements the Council's conclusion that unresolved issues for reconciliation at all levels need to be identified and dealt with in order for reconciliation to be achieved. It seeks to do this by establishing a series of National Conventions that will identify and prioritise unresolved issues for discussion and debate and make recommendations for action. The Conventions are intended to provide a forum for the discussion and eventual resolution of unresolved issues for reconciliation through the involvement of Aboriginal and Torres Strait Islander peoples, governments and the wider community. The Council recognises that this process will be particularly important in reaching outcomes on issues that require the involvement of the whole community.

Effective documents of reconciliation can only reflect changing community attitudes, ... Documents can support change, but cannot of themselves deliver the change itself.

Campbell Anderson, Chairman, Business Council of Australia, Managing Director, North Limited (1998)

Negotiations between Aboriginal and Torres Strait Islander peoples and the government

Part 4 provides a mechanism that will allow the Commonwealth Government and the Aboriginal and Torres Strait Islander Commission to work together to develop a process that will facilitate the resolution and agreement upon unresolved issues for reconciliation at the national level. It works towards resolution through a formal agreement and thus implements the Council for Aboriginal Reconciliation's aim that the reconciliation process provide real and practical outcomes. This part also sets down fundamental principles, or protocols, upon which negotiations should be based. Negotiations at the national level will provide a framework and a model for negotiations at other levels.

Part 5 sets out a series of reporting and monitoring processes that will evaluate the progress made in achieving reconciliation. There are three mechanisms proposed. The first is a requirement that reference to the progress towards reconciliation be made by the Aboriginal and Torres Strait Islander Social Justice Commissioner in the Yearly Report required under the Human Rights and Equal Opportunity Commissioner Act 1986 . The second is a comprehensive National Report on the Progress Towards Reconciliation to be made every three years by an independent body or task force. The third is the establishment of a Parliamentary Joint Committee which would monitor the progress towards reconciliation. This section therefore seeks to meet the Council for Aboriginal Reconciliation's concern that there be a constant and diligent assessment of the implementation of the Council's recommendations and the progress towards reconciliation.

A final document of reconciliation will serve as the symbolic basis on which Australians can progress a lasting understanding of reconciliation. My understanding is that it should also serve as a practical blueprint for future initiatives within the Australian community to advance reconciliation.

Richard Court MLA, Premier of Western Australia - 1999

The relationship between the Conventions and the negotiations

Parts 3 and 4 are intended to reflect the dual processes of discussion, negotiation and resolution of issues between Aboriginal and Torres Strait Islander peoples and the wider community and concurrent negotiations between Aboriginal and Torres Strait Islander peoples and the government. This proposal acknowledges that there will be some negotiations, in this case at the national level, that will be directed by the relevant parties to that process. However, the Council has conceived the Convention processes as providing a link between the broader community action and formal negotiations. While each of these processes must necessarily remain distinct, with their own process for resolution and outcomes, it is hoped that this model will allow some reference between the two processes that will allow the wider community to be a part of, and to move forward with, the developing agreements between Aboriginal and Torres Strait Islander peoples and government.

There are aspects of this proposal that require additional resourcing and it is implicit in the Council's recommendations that adequate funding be provided, whether through an accompanying appropriation bill or other mechanisms to ensure the effective implementation of the Council's vision for the legislation. The Council also urges those who have responsibilities under the proposed legislation to pursue the aims in the spirit of reconciliation. In particular, ATSIC must be provided with adequate resources to enable delegates to attend any National Reconciliation Convention to which they are invited.