As 2015 draws to a close, it is a fitting time to reflect on what's been achieved throughout the year. It has been a busy year for the Indigenous Law Centre. Some of our more recent activity is described in detail below, but here's a quick snapshot of some of our 2015 achievements:
The year started with Centre Director Professor Megan Davis being elected Chair of United Nations Permanent Forum on Indigenous Issues. Read Megan's United Nations update below.
A new Centre Coordinator and Editor for the Indigenous Law Bulletin, Emma Rafferty, joined the ILC in October, bringing 15 years of editorial experience to the role. You can read more about Emma's first edition below.
The joint ILC–AustLII project to update the Indigenous Law Resources library is progressing well, with Phase 1 due for completion by year's end, and Phase 2 slated for commencement in 2016.
Megan Davis was appointed to the Referendum Council, announced Monday 7 December by Malcolm Turnbull and Bill Shorten. Co-chaired by Patrick Dodson and Mark Liebler and consisting of 14 other members, the Council is charged with overseeing the next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander people in Australia’s Constitution.
Thank you to all of our subscribers for your support throughout 2015, and wishing you all the best for the holiday season and 2016.
– The ILC Team
ILB: Subscribe now for 2016
ILB November/December 2015 Vol 8 No 21
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Megan Davis appointed to Referendum Council
Professor Megan Davis has been appointed to the Referendum Council announced on 7 December by Malcolm Turnbull and Bill Shorten. Co-chaired by Patrick Dodson and Mark Liebler and consisting of 14 other members, the Council is charged with overseeing the next steps towards a successful referendum to recognise Aboriginal and Torres Strait Islander people in Australia’s Constitution. However Professor Davis, speaking on Radio National on 8 December, cautioned that the model should be right before focus turned to a possible date for the referendum.
‘If the reforms aren't going to make a significant difference to their lives, if it's not going to advance the legal status or position that they have currently, then it's a huge amount of political capital and money to expend on something that's not going to take us forward,’ she said.
‘In terms of deadlines, I think we just have to get the model right, we have to get communities back on side,’ she said. ‘Deadlines are important, but I don't think we should focus on the date before we have even come up with a model.’ The Council met for the first time on 14 December.
The Indigenous Law Centre has been working in the area of Constitutional reform for more than 30 years. The ILC has been pushing for Aboriginal conventions that will take place next year: it is our position that it is for Aboriginal people to decide in what form constitutional reform takes. You can access our resources here.
First ever book on Indigenous land reform in Australia
In the last decade there have been widespread reforms to Indigenous land in Australia as part of the government’s new approach to Indigenous policy. Beyond Communal and Individual Ownership, by the ILC’s Dr Leon Terrill, is the first ever book-length study of these significant and far-reaching reforms.
Starting with township leasing in the Northern Territory, the book describes how the reforms came about and what they mean for Indigenous land owners and communities. It contains a detailed analysis of land reform theory—from Hernando de Soto to the meaning and significance of ‘tenure security’—as well as a careful study of the reforms themselves.
The book challenges conventional approaches to framing debate about Indigenous land reform in Australia, arguing that we need to move beyond the concepts of communal and individual ownership in order to understand Indigenous communities and the consequence of land reform.
In addition to critiquing the existing reforms and the debate that led to their introduction, the book also offers a framework for developing alternative approaches to reform that better meet the needs of communities on Indigenous land.
United Nations update from Megan Davis
2015 United Nations Climate Change Conference
The 2015 United Nations Climate Change Conference—or COP 21—was held in Paris, France, from 30 November to 12 December 2015. The conference negotiated the Paris Agreement, a global agreement on the reduction of climate change.
In her role as Chair of the United Nations Permanent Forum on Indigenous Issues, Megan Davis issued a statement on COP 21, calling on all States to make sure that Indigenous peoples fully participate in processes such as the Paris Agreement, so that the they are implemented at the national and local levels in a sustainable way that is in line with Indigenous peoples’ traditional knowledge and practices.
Expert Group Meeting on Indigenous Peoples and Agenda 2030 for Sustainable Development
On 22 and 23 October 2015, the Department of Economic and Social Affairs, Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous Issues organised a two-day expert group meeting on Indigenous peoples and the 2030 Agenda for Sustainable Development.
The meeting was aimed at developing strategic guidance and action-oriented recommendations to mobilise action and support to include Indigenous issues in the implementation of the 2030 Agenda. The meeting brought together Indigenous experts, including representatives of the three UN mechanisms with specific mandates concerning Indigenous peoples, academic experts and statisticians, and representatives of the UN system.
The discussion was structured around three main areas:
reflections on the goals and targets adopted in the 2030 Agenda;
indicators for measuring progress for Indigenous peoples; and
monitoring development progress for Indigenous peoples and experiences in data collection.
There was also a break-out session that focused on strategic brainstorming on the way forward.
International Day of the World's Indigenous Peoples
The International Day of the World's Indigenous Peoples is commemorated annually on 9 August in recognition of the first meeting of the UN Working Group on Indigenous Populations, held in Geneva in 1982.
This year, the day focused on promoting the health and well-being of the world’s Indigenous peoples through the 2030 Sustainable Development Agenda. According to the UN, there are an estimated 370 million Indigenous people in some 90 countries around the world who constitute 15 per cent of the world's poor and about one third of the world's 900 million extremely poor rural people.
UN Secretary-General Ban Ki-moon noted that Indigenous peoples regularly encounter inadequate sanitation and housing, lack of prenatal care and widespread violence against women as well as enduring high rates of diabetes, drug and alcohol abuse, youth suicide and infant mortality. In Australia, he warned, many Aboriginal communities have a diabetes rate six times higher than the general population.
In her remarks on the day, Megan Davis said the active and ongoing involvement of Indigenous peoples in the development, implementation, and management and monitoring of policies, services and programs affecting the well-being of their communities is essential.
‘Only by acknowledging the interrelationship between health and the social determinants of health, such as poverty, illiteracy, marginalisation, the impact of extractive industries, environmental degradation, and the lack of self-determination, will any new human development goals be truly achievable among Indigenous peoples,’ she said.
‘Thus, on the eve of the adoption of a new development agenda, new indicators of Indigenous peoples' health and well-being must be defined in consultation with Indigenous peoples. Similarly, States should seriously engage in the disaggregation of data in order to better inform the effectiveness of their health policies and plans for Indigenous peoples,’ she said.
Megan Davis at the Commemoration of International Day of World's Indigenous Peoples, pictured here with Secretary-General Ban Ki-moon.
The updated library will be provisionally released in December 2015 and will be fully functioning by April next year.
As Indigenous research and perspectives are still often neglected in mainstream library collections, the project, which is supported by a Major Research Equipment Infrastructure Initiative Grant (UNSW), aims to further develop the AustLII library as a free and accessible online database of significant Indigenous legal materials.
‘When launched, the library will make freely available around 700 new documents, dating from 1831 to 2015,’ ILC Project Officer Stijn Denayer said. ‘Particularly noteworthy inclusions are important new resources relating to land rights, discrimination, intellectual property and cultural heritage.’
The library will not only include parliamentary papers, government reports and policy documents affecting Indigenous peoples, but also features reports and submissions by civil society organisations, as well as documents related to significant test cases and legal proceedings.
Native title and Indigenous empowerment
Two of Australia’s leading experts on native title, Val Cooms and Jason Behrendt, were guest speakers at a book event and panel discussion hosted by the Indigenous Law Centre and Gilbert + Tobin Centre for Public Law on 24 November 2015.
The panel discussion addressed the topic of ‘Native Title and Indigenous Empowerment’ and featured contributions from the editors as well as the two guest speakers. A large audience heard about the possibilities and constraints of native title and statutory land rights, with a recurring theme being finding ways to make the most of what native title provides.
In September, Acting Director Dr Kyllie Cripps taught the Indigenous Law Centre elective subject, Indigenous Children and the Law. The students were privileged on day two to have a visit from the Yarramundi Kids and Chris Burke. Chris, the director of Yarramundi Kids, is a master puppeteer and has a wealth of experience as a teacher and therapist. For those not familiar with the Yarramundi Kids, they feature on NITV’s ‘Strong, Smart and Deadly’, a series which incorporates the whole family, and features puppets, animation, Darug language, Indigenous role models and stories.
In the classroom, both Chris and the Yarramundi Kids brought a playful approach to serious problems. They discussed with students a range of issues including the importance of hearing children’s voices and understanding their perspectives. They also engaged students in a conversation about how children interpret violence perpetrated against them and their loved ones, and how the students, as professionals, can adapt their practices to be more responsive to children’s needs. It was an amazing afternoon full of new insights, and Kyllie and the ILC would like to thank Chris and the Yarramundi Kids for their inspiring visit and for all of the valuable information they shared.
Chris Burke, director of Yarramundi Kids, visiting the ILC.
Australian Indigenous Law Review
The forthcoming volume 18(2) of the Australian Indigenous Law Review (AILR) contains both a general section and a thematic section. In keeping with our practice of connecting academic scholarship with contemporary issues of significance, the thematic section contains further contributions to discussion around constitutional recognition. It begins with an article by the ILC’s Megan Davis on the space being allowed for Indigenous engagement with the issue of recognition in Australia. It also contains an article on the lessons to be learned from New Zealand’s approach to recognising Maori peoples, by Shireen Morris; an analysis of the various options for replacing section 51(xxvi) of the Constitution, by Lisa McAnearney; a discussion of the key legal challenges to introducing an Indigenous advisory body into the Constitution, by Gabrielle Appleby; and a critique of arguments with respect to an advisory body, by George Williams.
The general section contains articles on cultural tourism in India’s Andaman Islands, by Jonathon Liljeblad; the ‘invisibility’ of female Indigenous offenders in the youth justice system, by Clement Ng; the impact of state governments on the outcome of native title negotiations, by Lily O’Neill; and the application of restorative justice principles to environmental offences that impact on Indigenous relationships to country, by Rob White.
The AILR is Australia’s oldest Indigenous law journal. The current volume is published without the financial support of the Australian Government, following its decision to defund the ILC in 2014. The journal is now being managed by a hands-on, academic editorial board comprising Kathy Bowrey, Kyllie Cripps, Megan Davis, Mehera San Roque and Leon Terrill.
As the current volume attests, the journal continues to attract and publish high-quality articles on issues of significance for Indigenous peoples from senior and emerging scholars across a variety of fields. If you are interested in contributing to the AILR, our submission policy and style guide can be found here.
Indigenous Law Bulletin
The July/August Vol 8 No 19 edition of the Indigenous Law Bulletin was a thematic edition on the continuing conversation around constitutional recognition, prompted by the release of the Join Select Committee’s final report which was tabled in June, and the subsequent meeting between 40 Aboriginal and Torres Strait Islander people with the Prime Minster and Opposition Leader in Canberra. Articles by Gabrielle Appleby, Anne Twomey, Melissa Castan and Fergal Davis examine the Cape York Institute’s proposal for the establishment of an Indigenous parliamentary or advisory, and constitutional law experts Prof Megan Davis and Cheryl Saunders write about self-determination and the concept of consultation respectively.
In Indigenous Law BulletinSeptember/October Vol 8 No 20, Sandy Lamalle distils the conclusions of Canada's Commission on Truth and Reconciliation's report; Robyn Gilbert explains the ALRC's recommended changes to the Native Title Act; Tammy Solonec and Cassandra Seery, and Dennis Eggington and Sarouche Razi re-examine the closure of Oombulgurri in terms of its legality and implications, and Eamon Ritchie and Terri Janke unpack who owns the copyright for Native Title Connection Reports.
The final edition of the year, November/December Vol 8 No 21, is due to publish just prior to Christmas and includes a detailed and contextual analysis of the High Court of Australia’s decision in North Australian Aboriginal Justice Agency Ltd v Northern Territory  HCA 41 by Jonathon Hunyor. It also features a piece about superannuation accessibility and Indigenous disadvantage by ASIC’s Alya Gordon and Nathan Boyle; a comparison of Australia’s ‘right to negotiate’ with Canada’s ‘duty to consult’ by Kate Madden and more. It also features the artwork of Christian Thompson.
Call for submissions
Both the Australian Indigenous Law Review (AILR) and the ILB are currently welcoming submissions from Indigenous and non-Indigenous authors, on a wide range of topics.
The ILB publishes shorter pieces, usually around 2000 words excluding footnotes and written in a manner that is accessible to its wide readership.
The AILR publishes longer pieces, usually between 6,000 and 14,000 words including references, and welcomes more in-depth analysis. All contributions to the AILR are double blind peer reviewed.