Reconciliation and Social Justice Library

Bringing them Home - The Report

Self-determination

• The right to self-determination
• Implementing self-determination in Australia
• Implementing self-determination in other countries
• Recommendations

The right to self-determination

Independent states long denied that their Indigenous peoples enjoy the recognised international right of all peoples to self-determination. Self-determination is a collective right exercised by peoples. States preferred to describe their Indigenous populations as minorities, reserving the term `peoples' to describe nations and emerging post-colonial nations. However, according to the Chairperson of the United Nations Working Group on Indigenous Populations, Professor Daes, `Indigenous groups are "peoples" in every political, social, cultural and ethnological meaning of this term' (quoted by Coulter 1995 on page 131). Indigenous leaders in Australia have also argued that Indigenous peoples in Australia are `peoples' within the meaning of the term (Dodson 1993).

Once it is accepted that Indigenous peoples have a right of self-determination, debate surrounds the question what that right involves. Article 1 of the International Covenant on Civil and Political Rights defines the right of self-determination as involving the free choice of political status and the freedom to pursue economic, social and cultural development. The Covenant is binding on Australia.

Article 27 of the Covenant provides that `persons belonging to ... minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language'. Many international legal scholars consider that article 27 implicitly recognises a right to self-government or autonomy for Indigenous peoples and other minorities when that is necessary to protect their cultural distinctiveness. Some scholars have gone further and argued that customary international law recognises a right of cultural self-determination for Indigenous peoples (Iorns 1996 page 8). One aspiration Indigenous peoples have for the draft Declaration on the Rights of Indigenous Peoples is that it will put beyond doubt their right of self-determination.

`[The] free choice of political status carries no necessary implications' (Dodson 1993 page 41). Self-government, regional autonomy and integration into an existing nation state are all possible exercises of the right. Coulter summarises what self-determination means for some Indigenous peoples.

It is clear that Indigenous leaders mean self-determination to include freedom from political and economic domination by others; self-government and the management of all their affairs; the right to have their own governments and laws free from external control; free and agreed-upon political and legal relationships with the government of the country and other governments; the right to participate in the international community as governments; and the right to control their own economic development (Coulter 1995 page 131).

Self-determination is only likely to involve secession from an existing nation state in exceptional circumstances. Professor Daes has stated that self-determination for Indigenous peoples,

... means that the existing State has the duty to accommodate the aspirations of Indigenous peoples through institutional reforms designed to share power democratically. It also means that Indigenous peoples have the duty to try to reach an agreement, in good faith, on sharing power within the existing State, and to exercise the right to self-determination by this means and other peaceful ways, to the extent possible ... Furthermore, the right of self-determination of indigenous peoples should ordinarily be interpreted as the right to negotiate freely their status and representation in the State in which they live (quoted by Iorns 1996 on page 13).

The Working Group developed the draft Declaration on the Rights of Indigenous Peoples and governments are now discussing it through the United Nations Commission on Human Rights. `The purpose of the present standard setting is to recognise the specificity of a numerous group which has been largely ignored by the international community. The draft declaration is essentially seeking to protect the collective rights of Indigenous peoples' (Burger and Hunt 1994 page 411). Although it will not be binding, the Declaration is significant because it has been drafted in negotiations with Indigenous peoples' representatives and reflects the aspirations of Indigenous peoples. It has been referred to as `an historic statement of Indigenous people's rights' (Coulter 1995 page 123). Aboriginal and Torres Strait Islander peoples played an important part in the development of the draft Declaration, as did the Australian Government. It reflects more fully than any other international instrument the current goals of Indigenous peoples.

The draft Declaration affirms that Indigenous peoples have the right to self-determination. `[I]t may be said without exaggeration that all Indigenous peoples, certainly those which have participated in the drafting of the declaration, consider this right fundamental' (Burger and Hunt 1994 page 412). Other provisions in the draft Declaration apply this fundamental right to particular areas of activity. They affirm `the right of Indigenous people to control matters affecting them' (Coulter 1995 page 128).

Article 4 provides,

Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they choose, in the political, economic, social and cultural life of the State.

Article 31 sets out the extent of self-governing powers of Indigenous peoples.

Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.

Articles 19, 20 and 23 recognise a right to autonomy or self-government and control over decisions affecting them, including a right to maintain and develop Indigenous decision-making institutions and a right to determine and develop social and economic programs affecting them and to administer those programs through Indigenous institutions.

In negotiating the draft `practically no Indigenous representatives have spoken of a right to secede from an existing country' (Coulter 1995 page 131). According to the Aboriginal and Torres Strait Islander Social Justice Commissioner, in the Australian context `[a] threat to Australia's territorial integrity is not a necessary concomitant of self-determination' (Dodson 1993 page 52). Indeed, international law specifically rejects interference in the domestic affairs of nation states or in matters which interfere with the existing territorial integrity of nation states. `[A] people exercising their right to self-determination may choose from - and may even be confined to - a range of possible outcomes other than "independence"' (Nettheim 1988 page 119).

Governments expressed concerns during the negotiations about the relationship between self-determination and secession. Canada asserted that Indigenous self-determination `could not be used to justify any action that would dismember or impair ... the political unity of sovereign democratic states' but it accepted a right to self-determination within those boundaries.

The Government of Canada accepts a right of self-determination for Indigenous peoples which respects the political, constitutional and territorial integrity of democratic states. In that context, exercise of the right involves negotiations between states and the various Indigenous peoples within those states to determine the political status of the Indigenous peoples involved, and the means of pursuing their economic, social and cultural development (Canadian Government 1996 page 2).

Australia played an important role in the development of the draft Declaration. Its comments on self-determination in 1995 echoed those of Canada in recognising the right.

[It means] Aboriginal control over the decision-making process as well as control over the ultimate decision about a wide range of matters including political status, and economic, social and cultural development. It means Aboriginal people having the resources and capacity to control the future of their own communities within the legal structure common to all Australians... Indigenous peoples, like all other peoples in independent states with representative government, do not have a right of secession, although they do have a right of self-determination (quoted by Iorns 1996 on page 15).

Australia sees the right of self-determination as an evolving right. It involves more than just the right of equal participation in national affairs but also includes `preservation of culture, distinct identity and language, together with a power to take decisions over their own affairs'. In practice `the extent of that right remains a matter of political debate, particularly where autonomy or self-government for our Indigenous people may be seen to conflict with the rights of others within the Australian community or with overall governmental responsibility to achieve particular outcomes' (quoted by Iorns 1996 on page 15).

Clearly, the implementation of self-determination is important for juvenile justice, child welfare, adoption and family law matters. It is the principle grounding a right for Indigenous people to exercise control over matters directly affecting their children, families and communities. The Indigenous perspective on self-determination provides for the development of control over these areas of social life through processes which may involve some form of autonomy or self-government. Australia's position internationally has certainly not precluded these developments. State governments too have formally supported a broad view of self-determination. For example, the Queensland Government told the Inquiry,

The essence of self-determination in this context [juvenile justice and child welfare] is an understanding that only Aboriginal people can find solutions to the problems which confront them, and that Aboriginal people have the right to make decisions concerning their own lives and their own communities and the right to retain their culture and develop it (final submission page 18).

Implementing self-determination in Australia

The Indigenous right to self-determination has been slowly accepted over the last 25 years. Although restricted interpretations of the right have applied in practice, nevertheless self-determination has been seen as critical in various State, Territory and Commonwealth laws and policies.

However, transfers of power are generally limited in scope and accompanied by resourcing of Indigenous organisations which is inadequate to allow them to fulfil their functions. Many Indigenous communities have demanded the right to exercise self-determination in the provision of services to their communities while many others already do so with limited resourcing and powers. No community has jurisdiction over matters so central to their survival as child welfare and juvenile justice.

Self-determination was a key component in the development of the Commonwealth approach to land rights legislation during the 1970s and underpinned the development of specific legislation covering Indigenous councils and associations. The establishment of ATSIC in the late 1980s and the more recent establishment of the Torres Strait Regional Authority (TSRA) further recognised the importance of self-determination in Indigenous affairs.

Discussing greater autonomy for the Torres Strait, the Chairperson of the TSRA, Gaetano Lui, stated, `the central force behind this plan [for the TSRA] is our strong commitment to empowering our people to determine their own affairs. It is about controlling our own destiny and putting power back in the hands of our people'. The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, replied, `it is a view that fits well with the Government approach to Indigenous affairs' (Herron 1996 page 5).

States and Territories have also transferred some decision-making powers to Indigenous peoples. Hundreds of Indigenous corporations have been established across the country to provide governmental-type services to their communities. Aboriginal and Torres Strait Islander child care agencies are among these. In addition, Indigenous councils with similar powers to local governments have been established in the Northern Territory and Queensland. In South Australia Anangu Pitjantjatjaraku, an Aboriginal corporation established under the Pitjantjatjara Land Rights Act 1982 (SA), is recognised as a local governing body. Land rights legislation in some other jurisdictions have provided for the exercise of some governmental-type powers.

In WA legislation authorises the recognition of Aboriginal community councils for the purpose of making community by-laws (Aboriginal Communities Act 1979). Some 29 communities have by-law making powers, some of which relate to law and order. Recognition of community councils under the Act and approval of by-laws are at the discretion of the Minister.

In the NT Indigenous community councils exercise local government powers under the `community government' provisions of the Local Government Act. Aboriginal local governing bodies recognised for local government funding purposes have also been established under NT and Federal incorporation legislation.

Councils on Aboriginal land in the Northern Territory are severely limited in what they can do and have to follow the rules and regulations of the NT government. The NT Government's legislation for community Government is a white-mans system and is in direct conflict with the rights of Traditional Land Owners ... He said that what the Northern Territory and Commonwealth governments were doing is to `manage' Aboriginal people but not giving them real control. Aboriginal Councils are more accountable to the Northern Territory and Commonwealth Governments than they are to their own communities (Kumantjay Ross quoted by NT Aboriginal Constitutional Convention Report 1993 on pages 19-20).

Some decision-making power was transferred to Indigenous communities in Queensland by the Community Services (Aborigines) Act 1984 and the Community Services (Torres Strait) Act 1984. Community councils are primarily responsible for local government services with some additional functions such as community police, community courts and management of natural resources. During the last few years the majority of councils have adopted model by-laws creating a range of offences relating to assault, property damage and alcohol-related conduct (Queensland Government final submission page 56).

There are practical and legislative limitations on the power of Queensland community councils including in the administration of justice. Community police suffer from poor training, poor facilities and high turnover rates. `Community courts are only operating on a handful of communities at present. Their usefulness is restricted by current requirements that they operate strictly along the lines of a magistrates' Court' (Queensland Government final submission page 56). Although the by-laws passed by community councils apply to juveniles, State police typically charge juveniles under other legislation. At present `community police have no jurisdiction to enforce offences against juveniles and community courts have no jurisdiction to hear offences against juveniles' (Queensland Government final submission page 61). There are currently no provisions to deal with child welfare matters.

The limitations of the legislative framework under which the community councils operate in Queensland was the focus of the Legislation Review Committee (1991). The Committee found that there was wide Indigenous support for communities exercising greater autonomy than was currently available and that the legislation does not provide a `culturally appropriate structure for government' (page 1). The Committee recommended that legislation should permit Indigenous communities to develop constitutions to suit their own conditions. These constitutions could specify the type of government structure most suitable for the community and the powers the community would exercise. Communities could choose to undertake government functions for health, education and law (including the recognition of customary rights, laws and traditions and the administration of justice, police and corrections).

In 1996 the Queensland Government introduced the Alternative Governing Structures Program (AGSP) to assist communities develop decision-making structures and processes by providing funds for the development of community-based plans. The Office of Aboriginal and Torres Strait Islander Affairs assists communities in negotiating with the relevant body for their plans to be implemented (Office of Aboriginal and Torres Strait Islander Affairs 1996a). One of the strengths of the AGSP is that it applies to all Aboriginal and Torres Strait Islander communities in Queensland, including urban and semi-urban communities, and is not limited to those operating under the Community Services Acts 1984 (Office of Aboriginal and Torres Strait Islander Affairs 1996a pages 13-14).

The organisers of the NT's Aboriginal Constitutional Convention prepared a document on Aboriginal self-government which outlined some of the definitional issues and areas of potential responsibility.

1. What is Aboriginal self-government? A process of redrawing the ancestral domain through the right of Aboriginal self-government. This is a fundamental human right of Indigenous people. The inherent right of Aboriginal people to govern themselves is not beyond the capacity of the Federal Government to recognise and demarcate. It is simply creating a fairer division of the power and sovereignty... 4. What does Aboriginal self-government mean?
* Greater Aboriginal self-determination and autonomy;
* Owning the design of decision making structures that are appropriate to the local situation, needs, and culture;
* Control and authority over internal affairs;
* Setting own priorities and determine policy, program design;
* Selectively taking on the delivery of services eg. education, child welfare, social services, health, policing and justice, land and resource planning and environment protection (Reynolds 1996 pages 141 and 143).

Australian governments have not fully considered the relationship between Indigenous self-determination and the federal distribution of powers. However, many Indigenous organisations have experience of local control and regional co-operation.

Aboriginal local governing bodies generally face a larger struggle to achieve equitable conditions for their communities and consequently the need for regional unity is increased. However because of the cultural value placed on local control, the regional unity is achieved without compromising the fundamental autonomy that traditional land owners have over their traditional areas. The model is a micro-scale of federal-style distribution of powers between levels of authority. Aboriginal local governing bodies have considerable experience in making such a model work (Pitjantjatjara Council Inc 1994 page 41).

Implementing self-determination in other countries

A number of submissions to the Inquiry (ALSWA submission 127, SNAICC submission 309, Anglican Church Social Responsibilities Commission submission 525) and research commissioned by the Inquiry (Iorns 1996) drew attention to the development of Indigenous self-determination models in other countries. In these examples, self-determination for Indigenous peoples has involved the complete or partial transfer of jurisdiction for the administration of juvenile justice and child welfare. The devolution of self-government powers to Indigenous peoples in Canada has occurred in the absence of federal government recognition of an obligation at international law but rather in recognition of the desirability of the transfer in the interests of Indigenous survival and national well-being (Iorns 1996 page 21).

United States

The decisions of Chief Justice John Marshall during the first half of the nineteenth century recognised that Indian tribes have an inherent right of tribal sovereignty and are entitled to self-government. In 1832 in Worcester v Georgia the Supreme Court struck down a series of laws enacted by the State of Georgia which would have had the effect of nullifying the Cherokee Nation's constitution and its customary law. It affirmed that, although no longer completely sovereign, Indian nations retained their inherent right to self-government. Since then Indian governments have been entitled to exercise legislative, executive and judicial powers, subject to the powers of the US Federal Government. Most Indian nations have some land on which to base their government structures and authorities (Iorns 1996 page 22).

Two developments of particular interest to this Inquiry are the Indian Child Welfare Act and tribal courts. Commonwealth legislation along the lines of the Indian Child Welfare Act 1978 has been recommended to the Inquiry in numerous submissions (see for example SNAICC submission 347, Anglican Social Responsibilities Commission submission 525 pages 9-11).

The Indian Child Welfare Act 1978 is a Federal Act passed by the US Congress in response to the American Policy Review Commission's recommendations. The Commission was established by Congress in the mid-1970s to examine, among other matters, current law and practice as it affected Indian people. The Task Force's Final Report outlined the need for Indian child welfare legislation.

The Task Force Report cites a frequently asked question: since both Indian and non-Indian systems act in the best interests of the child, what difference does it make as to who makes decisions about Indian children. The answer to the question is then set out in the Report. The difference is that these decisions are inherently biased by the cultural setting of the decision maker ... when decisions are made by non-Indian authorities (quoted by Thorne undated on page 1).

The Task Force noted the discretionary nature of child welfare interventions and the cultural judgments explicitly and implicitly made by non-Indian welfare officers when intervening in Indian families (Thorne undated page 3).

In the hearings which preceded passage of the Indian Child Welfare Act, the Congressional Committee found that Indian children are the most vital resource for the continued existence of Indian Tribes and therefore must be protected. It also found that an alarmingly high proportion of Indian families were broken up by the often unwarranted removal of children by public and private agencies and that an alarmingly high proportion of these children were placed in non-Indian homes and institutions. `States have failed to recognise the tribal, social, and cultural standards prevailing in Indian communities and families. The Act was passed to remedy these problems' (Thorne undated page 7).

The Indian Child Welfare Act 1978 gives exclusive jurisdiction to tribal courts in child welfare proceedings about Indian children who live on or have their permanent home on a reservation. Congress can make an exception to this rule by giving jurisdiction to a State Court. State courts have joint jurisdiction with tribal courts over welfare matters which involve Indian children who do not have permanent residence on a reservation. State courts must transfer jurisdiction to tribal courts if this is requested by the parent, Indian custodian or Tribe unless one parent objects, the tribe has declined to handle the matter or the State court finds `good cause' not to transfer the case (section 101).

If a State court has jurisdiction over a welfare matter pertaining to an Indian child the Indian Child Welfare Act sets out a number of safeguards for that child. The Indian custodian of the child and the child's Tribe can intervene and participate at any point in the proceedings and all parties have a right to examine all reports and documents filed with the court (section 102). Parties seeking orders have to demonstrate to the court that active efforts have been made to provide remedial services. The party seeking a care order has to notify the parent, Indian custodian and the child's Tribe of the proceedings (section 102(d)). The Indian custodian or Indian parent has a right to court-appointed counsel (section 102(b)). Voluntary relinquishment must be in writing and a judge must be satisfied that the terms of the agreement are understood by the parent or Indian custodian. Voluntary consent to foster care arrangements can be withdrawn at any time (section 103(a) and (b)).

Section 105 incorporates an Indian Child Placement Principle. An emergency removal of a child is permitted where the child is in imminent physical danger (section 112). In these circumstances either the case must be referred expeditiously to the tribal court or the child must be returned home.

The most litigated and debated provisions of the Indian Child Welfare Act relate to the shared jurisdiction between State and tribal courts over Indian children who live off reservations. In Mississippi Band of Choctaw Indians v Holyfield (1989) both parents were Indians and residents of the reservation. The mother gave birth to twins in a town 200 miles from the reservation. The parents both signed a consent to adoption form and 31 days after the birth a Final Decree of Adoption was issued by the Chancellor of the Court of Harrison County. No reference was made to the children's Indian status anywhere in the proceedings. The Tribe sought an order to nullify the adoption decree on the basis that under the Indian Child Welfare Act it had exclusive jurisdiction over the child. In a one page judgment the Supreme Court of Mississippi affirmed the adoption on the basis that the mother had intentionally given birth off the reserve and neither parent had lived on the reserve after the birth. On appeal the US Supreme Court found that the parents had been domiciled on the reservation at the date of birth and so the tribal court had had sole jurisdiction. The Supreme Court noted that, because three years had passed since the adoption, nullification of the adoption and separation of the twins from their adoptive parents would cause much pain. Nevertheless the Supreme Court declined to determine the matter holding instead that `we must defer to the experience, wisdom, and compassion of the tribal courts to fashion an appropriate remedy'. The case was sent to the tribal court for determination.

The Supreme Court commented,

Tribal jurisdiction under s1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of the Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians ... In addition, it is clear that Congress' concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside of their culture (page 105 reproduced in The Indian Child Welfare Handbook undated).

The Supreme Court of Utah had encapsulated much of the debate in an earlier decision cited with approval by the US Supreme Court in Holyfield.

This relationship between Indian tribes and Indian children domiciled on the reservation finds no parallel in other ethnic cultures found in the United States. It is a relationship that many non-Indians find difficult to understand and that non-Indian courts are slow to recognise. It is precisely in recognition of this relationship however, that the ICWA designates the tribal court as the exclusive forum for the determination of custody and adoption matters for reservation-domiciled Indian children, and the preferred forum for non domiciliary Indian children (In re Adoption of Halloway 1986 pages 969-970).

Tribal courts were first established in 1883 as an adjunct to the process of assimilation to outlaw customary law and `civilise' Indians. The tribal courts which operate today derive from the Indian Reorganisation Act 1934. Indian tribes were authorised to establish tribal constitutions and governments and to enact laws covering internal matters including law and order. The tribal courts could be established as part of a tribal constitution or as a part of a law and order code.¹

Some 108 Indian tribes operate tribal courts, ranging from small tribes of 65 members and courts that deal with three cases annually to the Navajo nation of nearly 200,000 members and a judicial system that handles 40,000 cases annually. Not surprisingly the court systems vary dramatically `depending upon the population of the reservation they service, the demand for services, the funding available, the extent of jurisdiction possessed by the courts, and the philosophical orientation of the tribal governments' (Canadian Royal Commission on Aboriginal Peoples 1996a page 191).

Tribal courts have broad jurisdiction, including criminal law. However, tribal criminal codes cover essentially offences falling within a summary jurisdiction. Major offences, including homicide, rape and drug offences, must be dealt with in a federal court. The Indian Civil Rights Act 1968 restricts the operation of tribal courts by limiting the penalties they can impose to a maximum fine of $US5,000 or one year in prison or both. That Act also imports into tribal law the protections of the US Bill of Rights including criminal law protections with due process guarantees.

The US tribal court system was extensively reviewed by the Manitoba Aboriginal Justice Inquiry (1991) and the Canadian Royal Commission on Aboriginal Peoples (1996a). Clear advantages and disadvantages were catalogued. On the negative side, partly as result of the way they were established, the tribal courts and the codes they enforce are not uniquely Indian. Tribal courts were a form of dispute resolution imposed by the federal government (Canadian Royal Commission on Aboriginal Peoples 1996a page 184). At the same time, the tribal court system is not simply a static creation of the federal government. It is a dynamic system which in some instances has been changing to incorporate Indigenous cultural values. The limits imposed by the federal government have not restricted the development of Indigenous justice systems. For instance, the Navajo Nation has undertaken a program over the last decade to introduce Navajo common law as the law of preference in written opinions, as a means of interpretation of codes and as the source of principles and rules. Traditional justice methods have been adapted through the introduction of a Navajo Peacemaker Court (Canadian Royal Commission on Aboriginal Peoples 1996a pages 187-191).

While acknowledging shortcomings of the tribal court system, the Commissioners of the Manitoba Aboriginal Justice Inquiry noted that American Indian tribes were committed to the preservation and expansion of their court system. The system was perceived by tribal members to be,

... more understanding of their situation, more considerate of their customs, their values and their cultures, more respectful of their unique rights and status, and likely to be more fair to them than the non-Aboriginal justice system has been. In such a situation, where the court has the inherent respect of accused and the community, the impact and effect of its decisions will be that much greater ...

All this leads us to conclude that tribal courts clearly have played a vital role in meeting the needs of American Indians for a fair, just and culturally acceptable legal system (1991 Volume 1 pages 296 and 298).

Canada

The Canadian Government has recognised Aboriginal autonomy and self-government and has made specific settlements with different Aboriginal First Nations including land claim settlements and self-government agreements. The Canadian Government announced in 1995 that it would negotiate with Aboriginal First Nations to define the exact powers to be transferred, the jurisdictions to be exercised and the nature of fiscal responsibilities (Iorns 1996 page 23).

The devolution of child welfare and criminal justice, including juvenile justice, to Aboriginal nations has occurred to some extent in a number of areas. A number of Aboriginal self-government agreements which have been negotiated, including four Yukon agreements, have explicitly included jurisdiction over child welfare matters.

A joint approach to criminal justice issues is being developed in some Aboriginal nations (Iorns 1996). As a result of the Yukon self-government agreements, the Yukon First Nations will not unilaterally exercise power over the administration of justice for at least ten years, during which time power can only be exercised subject to a separate joint justice agreement (page 25). A different approach has been taken by the Sechelt Peoples who were granted self-government under Federal legislation. The Sechelts have been granted almost total control of their affairs including their own constitution. The arrangement attempts to replace externally imposed authority with `internally legitimised tribal authority' (ALSWA submission 127 page 221).

The Canadian Royal Commission on Aboriginal Peoples considered at length the relationship between Indigenous self-determination and the development of native criminal justice systems including juvenile justice. The Commission concluded,

The Aboriginal right of self-government encompasses the right of Aboriginal nations to establish and administer their own systems of justice, including the power to make laws within the Aboriginal nation's territory ... The right to establish a system of justice inheres in each Aboriginal nation. This does not preclude Aboriginal communities within the nation from sharing in the exercise of this authority. It will be for the people of each Aboriginal nation to determine the shape and form of their justice system and the allocation of responsibilities within the nation (1996a page 177).

The Royal Commission report does not offer a `blueprint' by pre-determining or circumscribing the shape of Aboriginal justice systems. The Commission recognised that Aboriginal justice initiatives have tended to be small scale and developed on an ad-hoc basis. `Often these initiatives fight the same battles over and over again with different orders of government and with differing results and almost always operating with limited budgets and under the shadow of a pilot program mentality' (page 179). In addition the Royal Commission recognised that different Aboriginal nations and communities will have different preferences and timetables for change.

Some may wish to give priority to justice processes that take place outside the courtroom; others may see the development of an Aboriginal court system as more responsive to the problems facing them; yet others may wish to proceed along both paths simultaneously to ensure that the system works in an integrated and complementary fashion. It is not our purpose to predetermine or circumscribe choice but rather to create conceptual and legal space for these developments to occur (page 197).

The Royal Commission was primarily concerned with providing a framework for the development of Aboriginal justice systems on a more comprehensive basis. It therefore considered in detail the jurisdictional basis for establishing Aboriginal justice systems (pages 219-257). It found that Aboriginal people's inherent right of self-government is recognised and affirmed in section 35 of the Canadian Constitution Act 1982. The right is not absolute and is exercised within the framework of Canada's federal system. It encompasses the right of Aboriginal nations to establish and administer their own systems of justice including the power to make laws within the Aboriginal nation's territory (page 310).

The Royal Commission concluded that `Aboriginal jurisdiction in relation to justice should be treated as a right; the exercise of that right should, however, be progressive and incremental, dependent upon the choice, commitment and resources of each Aboriginal nation' (page 257). The 18 recommendations on criminal justice provide a framework for facilitating the development of an Aboriginal jurisdiction. The first of these is that,

Federal, provincial and territorial governments recognize the right of Aboriginal nations to establish and administer their own systems of justice pursuant to their inherent right of self-government, including the power to make laws, within the Aboriginal nation's territory (page 312).

Other recommendations provide that Aboriginal justice systems should have a choice concerning the types of matters they will determine and which offenders will come before them. Offences and offenders not dealt with by the Aboriginal justice system would be dealt with by the non-Aboriginal justice system. Non-Aboriginal residents within Aboriginal jurisdictions should have a choice of where their case will be heard except if the offence is unique to the nation's system and is designed to protect cultural values.

The Royal Commission recommended that Aboriginal justice systems should include an appellate structure with a pan-Canadian Aboriginal appeal body. Appeals from that body would be to the Canadian Supreme Court. There should be negotiation between federal and provincial governments and Aboriginal nations for agreements to govern the nature of Aboriginal justice jurisdiction, the establishment of Aboriginal charters to supplement the Canadian Charter of Rights and Freedoms and the need to prioritise the interests of Aboriginal women and children in the development of Aboriginal justice systems.

Recommendations

In Canada and the United States governments have shown their willingness to depart from the culture of control which has characterised relationships between Indigenous peoples and colonial societies. The change in attitudes in the Canadian context is evident in the inter-governmental negotiations between Indigenous peoples on a regional basis. The governments of Canada through creative and inclusive federalism have recognised Indigenous Canadians' jurisdiction in a broad range of areas including those affecting children's well-being. They have also acknowledged and made a commitment to negotiating self-government on a local and regional basis with Indigenous peoples.

Given the vastly different circumstances of Aboriginal peoples throughout Canada, implementation of the inherent right cannot be uniform across the country or result in a `one-size-fits-all' form of self-government (Government of Canada 1995 page 4).

The Canadian Government's range of negotiation options include Indigenous Canadians living on and off a land base.

Metis and Indian groups living off a land base have long professed their desire for self-government process that will enable them to fulfil their aspirations to control and influence the important decisions that affect their lives (Government of Canada 1995 page 19).

In contrast to the Canadian experience, Australian `self-governance' models have been established within paternalistic legislative frameworks in which limited powers are delegated and functions are performed with inadequate resources, often in adverse circumstances.

Self-determination and responsibility for children

Self-determination can take many forms. It could involve a regional agreement and/or the establishment of regional authorities.² Alternatively, it may take the form of community constitutions. It can cover a range of areas including matters dealing with children and juveniles.³ There are many possibilities from the exercise of local government style powers through to the development of State-like powers within the federal structure.

The Northern Land Council provided the Inquiry with a view of self-determination which implied full self-government.

By self-determination we mean far more than the forms of quasi-control allowed through certain government institutions such as ATSIC or community government councils in the NT. This may include special funding arrangements with Commonwealth, states and territory governments (submission 765 page 16).

Some communities or regions may see the transfer of jurisdiction covering juvenile justice, welfare and adoption as central to exercising self-government. Others may wish to work within the existing structure modified to provide legislative recognition of the right of Indigenous organisations to have the key role in the decision-making processes. The level of responsibility for children which Indigenous communities wish to take must be negotiated by the communities themselves.

Many submissions to the Inquiry supported this approach.

Self-determination [is] the right of Aboriginal people to build mechanisms within our own communities for dealing with a range of issues that everybody else deals with at the moment on our behalf. Even if a child commits an offence within the city area or the community, we are not saying that nothing should be done with that child, but we do believe that whatever punishment, or whatever outcome of that child being picked up by police or authorities, is not a matter for the authorities or the police or the courts to deal with. It is really a matter for the Aboriginal community. Unless we are given the right and we are entrusted and given the opportunity to build up the mechanisms within our community to deal with these issues there is no end in sight ... If we are going to break down that system there has got to be a beginning where the Aboriginal community is able to build up the mechanisms. One of the reasons why we cannot deal with it at the moment is that we have never been given the chance and we have never been resourced, we have never been given the trust, and never really had the opportunity ... [There are] some ad hoc arrangements that take place here and elsewhere in Australia, where the department does not know what to do with our kids, when the police do not know what to do with our lads on the street, they dump them on us. Now, we try as best we can to cope with that issue, but if it was done more formally and a structure set up so the Aboriginal community can build up over a period of time our ability and our mechanisms to deal with this issue then ... It does not matter which Aboriginal child is taken away from its parents, or picked up by police or the authorities, you take them to the Aboriginal community to be dealt with and you exclude the operation of the general law. Now, there may be some limitation on that. It depends on the severity of the issues which gave rise to the child attracting the attention of the authorities ... In the next five or ten years it may well be impossible for the Aboriginal community to deal with some youth who have been involved in some very, very serious offences and so there may be limitations on the sorts of things that we deal with, but it seems to me that should not stop negotiations taking place between the Aboriginal community and governments as to where those limitations are and how the mechanisms can be built up between and within Aboriginal communities (Michael Mansell, Tasmanian Aboriginal Centre, evidence 325).

The Aboriginal Legal Service of WA recommended `that Local, State and Commonwealth governments facilitate the transition of identified Aboriginal communities to limited or complete self-government (or any other plan that is considered appropriate for the particular community), including any legislative reform, training, infrastructure development or provision of any other assistance that may be required' (submission 127 page 222). Tangentyere Council (NT) called for a change in the `structural relationship of Aboriginal people to the State' (Tangentyere Council submission 542 page 4).

Link-Up (NSW) drew the Inquiry's attention to Canadian Children's Services. `The destiny of Aboriginal children should be determined by Aboriginals as is the case in the Canadian First Nation Peoples Children's Services' (Link-Up (NSW) submission 186 page 176).

The Kimberley Land Council and Broome and Derby Working Groups (WA) both stated,

...we believe that control should be placed in the hands of Aboriginal people themselves, not government departments. Aboriginal people are in a position to assess the situation of clients and determine how best to deal with problems and can draw on their knowledge of extended families, Aboriginal tradition and culture to provide indigenous ways of dealing with crises situations (submission 345 page 28 and submission 518).

ATSIC noted that in `both current policies, and the development of new policies in relation to Indigenous children, governments must consolidate the principles of self-determination and empowerment' (submission 684 page 42).

Before informed decisions can be made there needs to be proper negotiation between government and Indigenous communities and organisations relating to self-determination in juvenile justice, welfare and adoption matters. Communities must be in a position to make choices about what they see as suitable long-term solutions to particular issues.

There are no insurmountable constitutional, legal or administrative barriers to transferring or sharing jurisdiction. The development of night patrols in Tennant Creek and Alice Springs in the NT are practical examples of Aboriginal people taking initiatives and exercising a level of control in the maintenance of law and order. They establish that core functions can be shared to the satisfaction of Indigenous people and government authorities. These are practical examples of shared jurisdiction in maintaining law and order (Dodson 1996 pages 62-63).

Funding

In 1992 the Council of Australian Governments endorsed a `National Commitment to Improved Outcomes in the Delivery of Programs and Services to Aboriginal Peoples and Torres Strait Islanders'. This commitment arose from an agreement by all levels of government on the need for co-ordination of delivery of programs and services to Aboriginal and Torres Strait Islander peoples. Guiding principles of this agreement are empowerment, self-determination and self-management by Aboriginal and Torres Strait Islander people. The commitment is consistent with a co-operative approach which recognises the responsibility of all levels of government for the delivery of services to Indigenous people.

States and Territories currently have responsibility for welfare and juvenile justice services to all sectors of the community. The Commonwealth has special responsibility to Indigenous people under the `races power' in the Constitution and under human rights treaties ratified under the `external affairs power'. Shared financial responsibility for the implementation of the recommendations of this Inquiry is required to fulfil these State, Territory and Commonwealth responsibilities. The need for proper funding was endorsed by the Social Responsibilities Commission of the Anglican Church.

It will not be possible for the Australian States to implement ... minimum standards without additional funding for training and for the support of Indigenous communities. Indigenous communities may not have the necessary expertise or resources initially to fulfil their roles in arrangements giving them more direct control over services ... control over services is not a euphemism for poor quality provision (submission 525 page 11).

The provision of funding must take cognisance of the principle of self-determination. Funding arrangements have been criticised for their excessive legality and complexity, onerous reporting provisions, failure to acknowledge organisations intellectual property. Indigenous organisations wherever possible should be the decision makers or at a minimum have primary input into funding decisions.

Other human rights

Australia has ratified many international conventions which establish human rights standards to which Australia is required to conform. Indigenous people in Australia have increasingly looked to international conventions to offer protection from discrimination and promotion of human rights (Dodson 1993).

A number of submissions called on the Inquiry to consider and incorporate the provisions of the United Nations Convention on the Rights of the Child (CROC) which was ratified by Australia in 1990. The Aboriginal Legal Service of WA noted that the Convention imposes an obligation on governments to protect the family unit, the interest of children growing up in a family where possible and the right of individuals to a family life. `Children, like adults, have rights to freedom from arbitrary interference with family life, freedom from arbitrary detention, liberty of the person and freedom of choice of residence' (submission 127 page 359).

Article 3.1 of CROC states that `in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'. CROC envisages that it will normally be in the child's `best interests' to be brought up with his or her birth family and by both parents (articles 9 and 18). CROC also recognises a right of the child to inherit and participate in the culture(s) into which he or she was born and an obligation on the state to provide assistance where children are removed from their cultural environment (articles 8.1, 20, 29.1(c) and 30).

Article 20. 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 3. ...when considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background. Article 30. In those States in which ethnic, religious or linguistic minorities or persons of indigenous origins exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her culture, to profess and practise his or her own religion, or to use his or her own language.

According to the ALSWA `these principles create a double issue in regards to Aboriginal youth, in that they are to be protected both as children and as members of an Indigenous culture' (submission 127 page 360).

Article 12 of CROC recognises the child's right to have the opportunity to express his or her views in any judicial or administrative proceedings which affect him or her, provided the child is capable of forming views. The views of children should be given weight in accordance with their age and maturity.

Self-determination