Apartheid, Australian-Style
by Joel Wright
In 1992 when the High Court ruled that Australia was not terra nullius and recognised Native title still existed, the Government, under Section 51 (ss.xxvi) of the constitution, immediately moved Native Title legislation that extinguished Indigenous rights, and protected non-indigenous rights. The anti-native title legislation contains amendments that seriously undermine Indigenous rights recognised by the High Court in its original judgement, such as:
- Stringent eligibility, proof of identity and ancestry criteria, which requires the engagement of expensive specialist researchers, lawyers, anthropologists, archaeologists and genealogists.
- A sunset clause where Indigenous groups who have not been able to lodge a native title claim ten years after the enactment of Wik will lose all native title rights.
- All claims must be assessed by the Government’s National Native Title Tribunal.
- In the event there are disputes relative to the proof of ancestry and identity, DNA testing will be used to determine the amount of heritage biologically evident.
The High Court ruling was quite clear in determining the jurisdiction of native title. It
states that ‘native title does not exist on freehold title’, and that
‘only vacant Crown lands are subject to Native Title claims’. Yet then
opposition leader John Howard’s opposition to the High Court’s ruling to the
Australian public was based on the lie that, ‘Every Australian’s own back yard
[freehold title] was up for grabs’ by Indigenous peoples (Howard 1993), and thus native
title was not in Australia’s national interest.
As a consequence,
subsequent native title legislation requires that a community can prove they are the direct
descendants of the Indigenous people from the area under claim, and can demonstrate a continuing
association with that area. In framing the Native Title legislation, the government was concerned
that it did not create the potential for the inadvertent substantiation of indigenous ownership of
intellectual property rights and thus biological resources as a result of a successful native title
claim, as prescribed by section 8j of the UN Convention on Biological Diversity.
In Australia today existing intellectual property rights do not protect
traditional biodiversity-related knowledge, including that related to uses of plants and other
natural resources, against unauthorised commercial exploitation unless the knowledge has been
recorded in some way. (Fourmile 2000) The government in assessing Native Title implications
concluded that a successful Native Title claim could also be used as a prerequisite in establishing
ownership of intellectual property and or biological resources as demonstrated by the following
official government advice.
Access to biological resources may be affected by native title issues, which are not fully understood because no court determinations have been made. Such native title may extend to rights of possession, use or ownership of certain biological resources located within those areas, and may enable native title holders to control access to the areas or the resources. (CSWG 1996)
In direct response to this potential, the Government has approved the use of genetic testing as a method to limit the potential for successful Native title claims under the legislation. As it’s framed the Native Title legislation is in total contravention of section 8j of the United Nations Convention on Biological Diversity and totally inconsistent with the World Trade Organization’s agreement on Trade Related Aspects of Intellectual Property (TRIPS). The TRIPS agreement also proposes the use of genetic testing to determine cultural authority and provides exemptions (section 27b) to the provisions of (section 8j) of the Convention on Biological Diversity.
This represents the greatest threat ever faced by Indigenous people in their
quest to have their indigeneity recognised, on two main counts. In the first instance, culture is a
life-experience that is constantly evolving and inherited throughout one’s life. Thus it is
impossible to measure culture by comparing ancestral and descendant biological material. Secondly,
the inability of the test to eliminate the plethora of variables associated with multiple ancestries
prohibits accurate identification of ancestral biological material inherited by descendants hundreds
of years later.
This leaves the process open to Government or corporate
manipulation, possibly involving the further exploitation of indigenous rights, and raises serious
concerns for Indigenous peoples in terms of the legitimacy of genetic testing to accurately
determine cultural and political rights.
Scientists, policy makers and others who
propose that genetic testing be used to determine cultural and political authority imply their
acceptance of the racial ideology. They equate culture with race and assume that both
characteristics can be detected biologically. Likewise if Indigenous peoples seek to prove political
and cultural legitimacy through DNA analysis, we are complicit in racism and this further invests
rather than disinvests us in a colonial model (IIIRM 2001).
In the context of
TRIPS and the UN Convention on Biological Diversity, the introduction of the native title amendments
means that Indigenous people now require greater access to the institutional repositories possessing
Indigenous cultural heritage, of which may constitute evidence under the Native Title Act 1993. Its
obvious that in order for Indigenous people to access and reclaim this body of knowledge we need to
develop the academic and professional base within the Indigenous community. The government
in response to this need has negatively geared Indigenous participation in Higher Education by
formulating policies based on “Practical Reconciliation” as is demonstrated with
the following statistical outcomes.
Cuts to Indigenous
away–from–base support funding in 2000 caused Indigenous higher education
commencements to decline by 15.2%. Indigenous postgraduate commencements comprise 0.07% of all
postgraduate commencements. Indigenous researchers constitute 0.06% of all postgraduate researchers
in 1999. Indigenous support funding per student has decreased to 1997 levels. In 2000 the merit
based equity scholarship scheme was abolished reducing Indigenous Higher education places
significantly per annum. Indigenous people comprise 0.67% of University staff. Of all Indigenous
staff in Indigenous Centres 53% are employed on a limited term basis compared to 48.5% for
non-indigenous staff. Within Indigenous centres an estimated 45.4% of staff are employed on a
limited term basis compared with 32.7% for the sector. (NTEU 2001)
The effect of
these policies on Indigenous people is severe to the degree where the ability to establish
socio-economic foundations is reduced and this is reflected in every available indicator measuring
social trends of the Indigenous community. Including work for the dole schemes, Indigenous
unemployment is above 40%. (CGC 2000) Of all Indigenous workers only 60% are full time compared to
72% for non-Indigenous workers. Indigenous combined wage average is 40% less than the non-Indigenous
wage average. Only 31% of Indigenous people own homes compared with 71% for non-Indigenous people
(ABS 1996).
But it gets much worse if we consider the relationship between
poverty and crime, and the disproportionate over representation of Indigenous people and their
deaths in Australian prisons. The Royal Commission into Aboriginal Deaths in Custody (RCIADIC)
examined the circumstances of the deaths of 99 Indigenous persons in police or prison custody that
occurred between January 1980 and May 1989. In the post–RCIADIC decade, 1990 to 1999, there
were a further 115 Indigenous persons who died in police or prison custody, and a further 30 died
during police operations - an increase on the previous decade. In 2000-01, 1,727.4
Indigenous adults per 100,000 were imprisoned compared to 115.6 for non-Indigenous adults.
(Productivity Commission, 2001) The number of Indigenous people in custody doubled in the
post RCIADIC decade. (Williams 2001) There were twice as many Indigenous people in prisons as
attending university in the post RCIADIC decade. (Collins 2001) Yet the Indigenous
population is 2.4% of the total Australian population of approximately nineteen million (ABS
1996).
Given these statistics, it’s plausible to argue that the
Australian Government’s Indigenous education and employment policy initiatives are
complicit in maintaining a process of systemic genocide, through a process of socio-economic and
political apartheid.
In researching the cause of Indigenous employment
disadvantage Norris states that ‘a significant proportion of all research into the causes
of Indigenous employment disadvantage, conclude that poor Indigenous education levels is the primary
factor’. This is demonstrated in the following analysis of conclusions by Altman and
Hunter, as reported in Ruth Fincher and John Nieuwenhuysen (1998), Australian Poverty: Then and
Now:
Altman and Hunter (1998) too attribute Indigenous employment disadvantage to
lack of skill or human capital, without fully investigating this assumption. This concentration on
the deficit of Indigenous people rather than possible systemic problems faced by Indigenous people,
is a theme which runs through much that has been written on Indigenous employment disadvantage. If
the skills deficit argument holds, education should redress this disadvantage, but evidence from the
1996 Census shows otherwise. Over 8% of Indigenous Australians with a degree were unemployed
compared with approximately half that for non-Indigenous graduates and diplomates; similarly twice
as high a proportion of Indigenous than non-Indigenous people with vocational qualifications or
without qualifications were unemployed. (Fincher & Nieuenhuysen, 1998)
The fact that this country has not met its moral obligation owed to the Indigene, nor is
likely in the near future, is a demonstration of the continuation of the Apartheid mentality of the
Australian government. This represents our challenge today: to engage with the critical
misrepresentations of our identity, aspirations and opportunity, within the context of policy design
across the spectrum of Indigenous affairs.
This focus on contested
knowledge will allow for an engagement with the past – its residue – and provide
the necessary impetus for forging strong cultural foundations for the future. Cultural attrition
over the period of colonisation, together with the onus to prove native title resting on the
Indigenous peoples, exacerbates the need for relevant education, training and employment programs
based on Indigenous cultural heritage research and relativities.
In today’s
knowledge-based economy, education is highly valued, and plays an ever-critical role in employment
and income. From a human capital perspective, education not only promotes personal development, it
is a crucial investment in economic prosperity in the future. (CRRF 1999)
As such
the Australian Government along with the universities have a direct responsibility to support the
development of programs that provide the academic, legal, political and economic agency necessary
for Indigenous peoples to reclaim their culture and, as a consequence, reclaim a small piece of
their lands. In the words of the NTEU’s Indigenous Education Policy, ‘As sites of
critical learning, universities are powerful agents for social change and have a responsibility to
provide an environment free from racism in all of its forms.’ (NTEU
2000)
Indigenous communities are autonomous living cultures, which derive individuality
from many different forms of belief and philosophical foundations and are distinct cultures in their
own right. Acknowledging local Indigenous cultural identity allows Indigenous groups to put into
place important cultural protocols. It allows Indigenous peoples to assert their own definition of
themselves and their relationship to the rest of Australian society. (Wright and Louizo
2000)
Indigenous spirituality can be said to characterise the essence of
Indigenous identity, which reveals itself as cultural heritage and cultural practice. What
colonialism considered primitivism is a holistic approach both to the relationship of people to the
land, and of the land with culture.
By shifting the focus in the curriculum from
teaching and learning about culture as another subject, to teaching and learning through the local
culture as a foundation for all education, it is intended that all forms of knowledges, ways of
knowing and worlds eye views be recognised as equally valid, adaptable and complementary to one
another in mutually beneficial ways (ANKN 1998).
In order that these protocols
are met, it is important to ensure that both cultural integrity and local relativity are respected
and incorporated as the basis in developing Indigenous education and employment programs.
The following list is an example of subjects specifically relevant to Indigenous people and can be
expanded across all disciplines.
- Indigenous pre- and post-colonial history
- Indigenous Land Rights
- Native Title research and processes
- Environmental management
- Cultural site identification and restoration
- Cultural practice research and revival
- Cultural Tourism development
- Hospitality and Management
- Indigenous Medical services and research
- Indigenous Legal and Political representation
- Indigenous Micro and Macro Economics
These courses will aid the creation of relevant employment outcomes locally, which in turn
facilitates economic autonomy, political agency, and thus self-determination. The establishment of
this cultural framework at every level of mainstream society will allow Indigenous people to realise
their own potential and speaks to the creation of viable regional agreements. In Australia today
partnerships are being established between private business, state institutions and Indigenous
people that point in the direction of the drafting of a national Treaty. Through the
negotiation of Indigenous Land Use agreements, enterprise bargaining, Higher Education agreements
and Memoranda of Understanding, Indigenous peoples are beginning to claim their rightful place in
society. Unfortunately those hostile to the interests of Indigenous Australians keep up a relentless
agitation against the push for a Treaty.
A treaty would re-establish political
rights based on race. A treaty would be socially divisive. A treaty would inhibit Aboriginal
self-determination. Aboriginal self-government would be undemocratic. Sociologically it is too late
to revive Aboriginal sovereignty. A treaty jeopardises Australian sovereignty. (Windshuttle
2001)
Comments like these illustrate the degree of racism driving the treaty
debate in Australia, and demonstrates the hurdles Indigenous people must overcome in this pursuit.
It is becoming more obvious that I will not see a Treaty in my lifetime and am left with this
thought to reflect upon in maintaining the rage.
We must, I believe, leave our
children with a formal acknowledgement in our constitution of the existence of Aboriginal and Torres
Strait Islander peoples, one that goes beyond the racialised citizen and encompasses the explicit
rights of peoples within our nation state. (Langton: 2001)
By negotiating
partnerships, treaties, regional and Higher Education agreements (e.g. Deakin University, 1997) that
are enshrined within the constitution, Australian society and the Indigenous community can take the
first steps toward real reconciliation as opposed to John Howard’s model of
“practical reconciliation”, which is nothing more than apartheid,
Australian-style.