The purpose of restitution is to re-establish, to the extent possible, the situation that existed prior to the perpetration of gross violations of human rights. The children who were removed have typically lost the use of their languages, been denied cultural knowledge and inclusion, been deprived of opportunities to take on cultural responsibilities and are often unable to assert their native title rights.
Many stolen children will be unable to satisfy the requirement of a continuing relationship with their traditional land on their own.
It is undeniable that the forced removal of Aboriginal people from their families and the legacy of assimilation policies will have an impact on the ability of some Aboriginal people to claim native title rights ... NSWALC would expect the courts to approach the issue of connection to land in a manner which is sensitive to the historical realities of Aboriginal people and understanding of the ability of Aboriginal communities to rebuild despite the impact of policies aimed at their destruction. NSWALC believes the Inquiry into the removal of Aboriginal children should encourage such sensitivity and understanding (NSW Aboriginal Land Council submission 643 page 3).
However, native title is communal in nature and traditional Law recognises the authority of traditional owners to define the content and scope of that title. In other words, the traditional owners or claimants are entitled to determine whether or not to include a person removed in childhood.
The content of a particular group's native title, including what it has to say about the rights of particular individuals within the group, is determined by the indigenous group concerned according to their traditional law and custom, not the common law.
[Thus] it will be the relevant indigenous group which determines according to its traditional law and customs whether a particular individual who was taken away from their community and their land continues to enjoy native title rights and interests in relation to that land in common with the other members of the community (Cape York Land Council submission 576).
Traditional owners and claimant groups should, of course, remain free to define their membership to include people forcibly removed from their families, thereby including these people among those entitled to the benefits of a successful statutory or native title land claim.
Returning to country can be a critical step in the reunification and healing process for people removed as children. However, it is fraught with difficulties.
Many found the task of re-establishing themselves in their country was achievable, but others did not. Communities sometimes found it difficult to accept people who had spent so long away from country back into their social networks on a basis of equality with those who had not been removed. People who had suffered the trauma of removal often encountered the double jeopardy of suspicion, mistrust or even blame upon their return, despite the location of real responsibility in the governments of the day (Cape York Land Council submission 576).
Support is required to facilitate return. This support has two key aspects. First the `returnee' must be prepared for his or her return. This preparation would usually include some information about appropriate behaviour. Second the community needs to be prepared to receive the person returning. This preparation would usually include provision of information about the policies and effects of forcible removal. Where support is available, the return is more likely to be a success and the traditional owners are more likely to accept the `returnee' and reintegrate him or her into the community. Developing community genealogies will assist community leaders in their decision making on the return of people affected by removals.
Assistance should be given to those wishing to return to their and their families' traditional country and to assist them with negotiations with the Native Title holders of that country (Broome and Derby Working Groups submission 518 recommendation 3.2.2).
Traditional owners should be assisted to decide whether, and to what extent, they can include people who were removed as children. In particular, they need reliable information about the history of forcible removal, its effects and the involvement of particular individuals.
Assistance to return to country
| Recommendation 11: That the Council of Australian Governments ensure that appropriate Indigenous organisations are adequately funded to employ family reunion workers to travel with clients to their country, to provide Indigenous community education on the history and effects of forcible removal and to develop community genealogies to establish membership of people affected by forcible removal. |
Many people affected by the removal policies may be unable to return to their traditional country. In many cases the policies of removal and segregation have successfully destroyed their capacity to maintain their connection to their land. In some cases, traditional owners will be unwilling to reintegrate former community members. People who by reason of their removal are now unable to enjoy native title rights should be able to establish that loss in any claim for monetary compensation. The importance of compensating such loss was emphasised in numerous submissions to the Inquiry.
Grants of land and/or housing should be made to families of those who have lost access to traditional land and such land could be allocated in areas where these people grew up and with which they now identify (Broome and Derby Working Groups submission 518 recommendation 3.2.1).
I think compensation for me would be something like a good land acquisition where I could call my own and start the cycle of building good strong foundations for Aboriginal families. Because the whole thing started from people coming to this country and stealing the land, and then everything fell apart from then on. So I think for people who have been dispossessed of land, but more importantly dispossessed of our identities and dispossessed of where we came from ... I think to give us compensation in the form of some land acquisition would go very well into helping start stable family relationships and stable generations from here on in.
Confidential evidence 696, New South Wales.
What I'd like to have - I'd like to have me own house, me own block of land. Like, I figure they owe me that much. I've given most of my life, surely they can pay for that. Maybe if I was with me family I'd have a decent bank account instead of one with a dollar sixty-seven credit or something like that, or overdraft. I want me own block of land, something that I don't have to pay for again. Something I can call mine and no-one can take it away, because I haven't had that yet.
Confidential evidence 146, Victoria.
[T]he people who have become landless ... partly due to this kind of policy could be compensated by assistance to have a home and land of their own or for their family (Jack Goodluck, former Minster in the Uniting Church and Superintendent of Croker Island, evidence 119).
Other recommendations to the Inquiry have drawn attention to the need for broader measures of `cultural restitution'.
Cultural and language education centres, meeting centres and land acquisition are the kind of reparations and facilities that community opinion indicates may be appropriate as recompense for past suffering and dislocation (ALRM submission 484 at 22; see also Cape York Land Council submission 576). Full support be provided to Kimberley Aboriginal organisations promoting Aboriginal culture, language, identity and history (Broome and Derby Working Groups submission 518 recommendation 3.3.3).
The significance of Indigenous languages to the maintenance of family relations and the preservation and transmission of cultures was not lost on missionaries and protectors. The speaking of languages was frequently prohibited.
People were also punished for speaking language. In many places language became something that had to be hidden; we were taught to be ashamed if we spoke anything other than English (Kimberley Language Resource Centre submission 759 page 2).
[The old people] didn't like you listening in and wouldn't explain things to you, what it was about ... Then again they were frightened of white-fellas, Superintendents [-] they were very very frightened ... If old people tried to teach the younger people, they were sent to Palm Island, at the pleasure of the Superintendent in those days. It was a crime to teach us languages, that's why we were going backwards ... The old people were frightened of getting sent away ... That's why a lot of our people were frightened to teach us our language. It was fear (quoted by Aird 1996 on page 14).
The loss of language is intimately connected with the loss of identity for those forcibly removed and their descendants.
The story of language loss is the story of separation. With the removal of children from their families and displacement to missions, authorities effectively isolated these children from the nurturing and supportive structures of all aspects of their culture.
It is well known that the mission children were not only discouraged from speaking their native languages, but in many cases physically punished for doing so.
`What must be remembered is that language is not simply a tool for everyday communication, but through recording of stories, songs, legends, poetry and lore, holds the key to a people's history and opens the door to cultural and spiritual understanding (Aboriginal and Torres Strait Islander Corporation of Languages submission 854 page 2).
The Kimberley Language Resource Centre submitted,
Language and identity are closely linked, and for many of us our language is a symbol of identity central to our self-esteem, cultural respect and social identification. Our languages provide more than just a way to talk to each other. They provide a way for us to interpret the reality we see around us. The words we use to name things, to describe feelings, understandings and each other, carry meanings particular to us. If we lose these words, we lose part of ourselves ...
... when our children were stolen from our families one of the things that happened was that the language learning cycles were broken. Transmission from generation to generation is a crucial link in language maintenance. Taking the children away broke this link (submission 759 page 1).
The Royal Commission into Aboriginal Deaths in Custody commended the establishment of language and culture centres and recommended that governments support these Indigenous initiatives (Recommendation 56). A network of regional language centres is now established with funding administered by ATSIC under the Aboriginal and Torres Strait Islander Language Identification Program (ATSILIP). The Program was reviewed for ATSIC in 1995 by the National Language and Literacy Institute of Australia. The Review `strongly recommended' a continuation of the program to the end of 1999-2000 `with an expectation that it may need to be extended further, given the range of languages involved and the work that needs to be done' (Recommendation A.1). The Program was also strongly endorsed in 1996 by the National Board of Employment, Education and Training, with a similar recommendation for extension. Core tasks of the language centres are language recording and maintenance and teaching languages.
The existing language centre model is clearly appropriate for the task of assisting people affected by forcible removal to recover their languages. Local and regional negotiations will be required to determine whether the language centre is the appropriate body to take on other tasks envisaged by the Inquiry, notably that of recording and storing personal testimonies of forcible removal and its effects and that of archiving local history records. The generic term `language, culture and history centres' is used to indicate the range of tasks that need to be performed. Existing language centres may be expanded. Alternatively new institutions may be established.
Language, culture and history centres
| Recommendation 12a: That the Commonwealth expand the funding
of Indigenous language, culture and history centres to ensure national coverage
at regional level.
Recommendation 12b: That where the Indigenous community so determines, the regional language, culture and history centre be funded to record and maintain local Indigenous languages and to teach those languages, especially to people whose forcible removal deprived them of opportunities to learn and maintain their language and to their descendants. |
The Inquiry has found that a key objective of forcible removals was to sever the link between the child and his or her family, community and culture. For many people the practices used to advance this objective have resulted in an inability to establish their Aboriginality by reference to the frequently applied three-pronged definition. For many purposes proof of Aboriginality now requires (1) proof of descent from the Indigenous peoples of Australia, (2) self-identification as an Indigenous person and (3) acceptance by the Indigenous community as an Indigenous person.
Some people who were forcibly removed and their descendants are not acknowledged as members by their own communities of origin, while others are unable to locate their communities. The application of a definition requiring acceptance as Indigenous by the person's community must not be permitted to discriminate against the most direct victims of the forcible removal policies.
Indigenous identification
| Recommendation 13: That Indigenous organisations, such as Link-Ups and Aboriginal and Islander Child Care Agencies, which assist those forcibly removed by undertaking family history research be recognised as Indigenous communities for the purposes of certifying descent from the Indigenous peoples of Australia and acceptance as Indigenous by the Indigenous community. |
This recommendation extends only to a person's general acceptance as an Indigenous person. It does not propose that the organisations mentioned should be authorised to certify membership of a particular Indigenous community for any particular purpose such as Land Council membership. This is entirely a matter for the particular community itself, which may in its discretion rely on the advice of a link-up worker or other organisation.