At Melaleuca, in the remote southwest of the Tasmanian Wilderness World Heritage Area (‘TWWHA’), visitors may encounter the Needwonnee Aboriginal Walk. Established in 2011 by the Tasmanian Parks and Wildlife Service in consultation with the Tasmanian Aboriginal Land and Sea Council, the Walk is an interpretive nature trail over 1.2 kilometres that educates visitors about the lives of this ancient Aboriginal culture and their environs. Most of the interpretive installations are ephemeral, fashioned from organic materials in the local landscape, and include huts, tools, baskets, shell necklaces and a paperbark canoe. The area today is unoccupied except for the few intrepid tourists seeking an iconic ‘wilderness’ experience. Despite the good intentions behind creation of the Needwonnee Aboriginal Walk, it conveys the impression of a past or extinct culture now memorialised in an outdoors museum, without any voice and no longer heard. Yet many Aboriginal representatives in Tasmania see the TWWHA as ‘belonging to a much larger living cultural landscape and seascape’ that should be managed jointly with Aboriginal communities. The evolving governance of the TWWHA, which now recognises that Tasmania’s southwest region is a living cultural landscape rather than a museum, evokes a broader policy issue about how nature conservation often also involves decisions about the place of people. This issue sometimes gets framed negatively and rigidly around the ‘parks versus people’ dichotomy, 2 as though effective conservation depends on excluding the human presence. Not only is the notion of ‘pristine wilderness’, a nature without people, untrue for nearly all of the biosphere, this troubling narrative can undermine caring for country whose human inhabitants have evolved bespoke environmental knowledge and husbandry skills, as well as wrongly bleach from history the legal claims of such people. Of course, these observations are hardly insightful, especially in Australia whose environments have been socialised through some 50 000 years of Aboriginal occupation. More difficult to understand, as we tackle in our article, is how can Indigenous participation in environmental governance occur where such people were subject to genocide and whose survivors have struggled against the dominant culture‘s pernicious ideology of biological or cultural ‘extinction’.
In September 2017, the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 was passed by the Victorian Parliament. An essential element of the Act is the creation of the Birrarung Council, a statutory body to be the ‘independent voice for the river’. Of significance for Indigenous involvement in river management is the mandatory requirement for Traditional Owner representation on the Council. This development in river management, although new to Victoria, has some parallel with recent developments in Aotearoa New Zealand, namely the Whanganui River Treaty Settlement. In this settlement, the Whanganui River has been granted legal personality, the embodiment of that legal personality being in the form of a statutory river guardian containing Māori representation, to be the ‘independent voice’ of the river. But giving an independent voice to the environment (or an element thereof) may already have begun to enter the Victorian consciousness in the guise of the Victorian Environmental Water Holder (‘VEWH’). This article considers the Whanganui River Treaty Settlement, and in particular the granting of legal personality to the River as embodied in a guardian, and with all of the associated legal rights and responsibilities of a legal entity. It critically analyses various merits and weaknesses identified in the settlement to ascertain whether it enhances Māori participation in river management and can therefore provide a useful model for Victorian Traditional Owners. An important related question is whether this new model is indicative of wider changes to water governance, or merely the creation of just another voice in the already crowded water management debate. Can the guardianship model embrace the concept of Indigenous representation in river management, given that they are conceptually quite different? In that respect, this article argues that this particular guardianship model does not fundamentally change the water governance system, but gives an additional, albeit indirect, voice to Māori, a voice which emphasises Māori river values. The article then considers, by way of comparison with the Whanganui River guardianship model, whether the VEWH is reflective of a move towards a more independent management model, akin to an environmental guardian. Finally, this article examines the potential application of this guardianship model to individual rivers in Victoria, identifying five key issues that would need to be considered.
From 1 January 2015, trustees of Aboriginal and Torres Strait Islander land in Queensland have had the option of making available ordinary freehold land title ('freehold option'). In order to grant freehold title in these remote communities, where land is held communally in trust, native title must be extinguished.
Legal Aboriginality is a contemporary catalyst point for the relationship between settler law and Aboriginal persons. Through constructing a legal Aboriginal personhood, Australian settler colonial legal systems make major contributions to understanding their foundations relative to the Indigenous peoples they constructed these foundations upon. The current model, comprising three tiers of self-identification, community-identification and descent, is an attempt to capture a legal Aboriginality that closely mirrors Aboriginal self-understanding. Although occasionally outwardly determined by the courts, this definition of Aboriginality increasingly turns inward as a model for determining the membership of Aboriginal statutory bodies, Aboriginal Lands Councils ('ALC') and Aboriginal Corporations ('AC'), those same bodies also conferring Confirmations of Aboriginality for administrative purposes.
Some level of legislative protection of Indigenous cultural heritage is a feature of all Australian jurisdictions at a state (or territory) and Commonwealth level. The Victorian 'Aboriginal Heritage Act 2006' ('AHA') is often regarded as an example of one of the most effective of such regimes due both to its integration with the processes under the 'Native Title Act 1993' (Cth) and its recognition of the appropriately central role of traditional Aboriginal owners in managing their heritage.
The ongoing impacts of colonisation have 'direct and immediate relevance to both criminal behaviour and to processes of criminalisation' of Indigenous people in Australia. Decolonising, that is, addressing or reversing the impacts of colonisation, is necessary to improve the way in which the criminal justice system interacts with Indigenous people, and to reduce the shameful rates of Indigenous incarceration. In this article, I suggest that Neighbourhood Justice Centres ('NJC'), a type of problem-solving court focussing on community engagement, may be part of the solution. I propose that they can operate as a decolonising agent by facilitating Indigenous empowerment and self-determination.
In the preamble of the 2001 Stockholm Convention on 'Persistent Organic Pollutants' we find the following acknowledgement: ' that the Arctic ecosystems and Indigenous communities are particularly at risk because of the biomagnification of persistent organic pollutants and that contamination of their traditional foods is a public health issue'. The vulnerability of the Indigenous populations of the Arctic to persistent organic pollutants ('POPs') was an impetus behind the 'Stockholm Convention' and although the relationship between POPs and the health of Indigenous peoples, especially children and the unborn, has been known for a very long time, there has been little in terms of legislation and public policy initiatives to diminish toxic chemicals in the food and natural environment of the Inuit. In addition to POPs, the children and adults of the Arctic communities are also disproportionately exposed to heavy metal contamination due to the presence of mercury, lead and cadmium, among others. In 2013, the 'Minamata' Convention on Mercury was adopted, under the auspices of the United Nations Environment Programme ('UNEP') and building on the 1998 to the 1979 Convention on Long-Range 'Transboundary Air Pollution on Heavy Metals'. Given the long-term effects on the Inuit of these substances, it begs the question whether this situation is in fact a crime against future generations of the Inuit.
Aboriginal and Torres Strait Islander peoples of Australia face a curious conundrum. Their continued existence and continuing sovereign obligations to Country, culture and community are self-evident. Yet the Australian national narrative is that Indigenous sovereignty was extinguished at the time of the arrival of the British 'settlers'. Today Australian mainstream law suggests that Aboriginal and Torres Strait Islander people exist as peoples only for purposes, and against criteria, determined by state and federal governments. In other words, apart from limited and highly circumscribed opportunities created through native title, cultural heritage laws and some states' land rights systems, the Australian state neither acknowledges Aboriginal and Torres Strait Islander peoples' status as distinct political collectives (nations, societies, communities, or however else they prefer to describe themselves) nor recognises their inherent rights to self-governance. While they consistently have advocated for this recognition - through the Yirrkala bark petitions, the Barunga Statement, the Aboriginal Tent Embassy, and most recently in the Uluru Statement from the Heart - nation-to- nation and government-to-government relations have not become an aspect of Australian mainstream law. This lack of legal status for Aboriginal and Torres Strait Islander collectives results in serious constraints on their self-governing capacity, constraining the scope of their jurisdiction and limiting the potential of Indigenous governing institutions.
Consumer leases offer low-income consumers the option to hire household items that they do not have the money to purchase upfront. They are marketed by consumer lease providers as a cheap way to purchase important household items. However, recent studies illustrate that the price ultimately paid to hire goods under a consumer lease contract will generally exceed the retail value of the goods hired and that it is the most expensive form of finance available. Despite this, consumers are often persuaded to enter into consumer lease contracts as a result of predatory practices engaged in by providers. These predatory practices are most effective with low-income consumers who may be experiencing financial difficulties and who live in remote areas that make it difficult to shop for alternative goods or seek financial and legal advice. The problems associated with consumer leases are particularly prevalent in remote and rural Indigenous communities where issues such as geographical isolation, financial hardship, and cultural practices make them vulnerable targets for providers. This article explores in detail the ongoing problems faced by Indigenous consumers when entering consumer leases. After setting out some of the key aspects of consumer leases and the general problems associated with their use, the article explores the operation of consumer leases in Indigenous communities and enforcement actions relating to Indigenous consumers that have been undertaken by the Australian Securities and Investments Commission. The article also reports the results of interviews conducted by the authors that indicate that, despite regulatory reforms and enforcement actions, Indigenous communities continue to be vulnerable consumers. This vulnerability has led many Indigenous consumers to pay exorbitant amounts for household items that could be purchased more cheaply or through less costly credit products. As a result, Indigenous consumers entering into consumer leases often find they are unable to afford to pay for other essential items, which in turn forces them into even greater financial distress. The article concludes with observations regarding the potential negative effects of consumer leases in Indigenous communities and reforms that may address these problems.
This article explores the changes in Indigenous child welfare and juvenile justice in the context of neoliberalism. Neoliberalism is associated with a free market economy involving deregulation, government austerity, free trade and privatization. One outcome of this has been the greater concentration of wealth and power. This paper is primarily concerned with the values and ideas that underpin neoliberalism. It is argued that neoliberalism has seen a disavowal of colonialism in understanding both child welfare and juvenile justice and is fundamentally assimilationist when it comes to Indigenous people. Two issues in particular stand out when considering the transformation of child welfare and juvenile justice under neoliberalism. The first is the role of managerialism and the related ascendancy of risk-thinking. The second is the rise of responsibilisation and welfare conditionality and its links with criminalization. Both have led to a growing punitiveness in responses to Indigenous children.
There is growing interest among public servants, Indigenous organisations, and scholars in Canada, Australia, and New Zealand in the idea of shifting from classical New Public Management accountability models to models that reflect mutual or reciprocal accountability as a means of delivering more effective and responsive health care to Indigenous communities. However, little progress has been made with respect to developing and implementing workable reciprocal accountability models. In this paper, we argue that a consideration of Indigenous perspectives on reciprocity and accountability is an essential, yet mainly overlooked, component of the development of effective and appropriate accountability models between Indigenous peoples and statebased funders. Indeed, many Indigenous peoples have long histories of engaging in reciprocity-based relationships with each other and their environments. Drawing from Indigenous knowledge in this regard offers novel insights that can inform how models of reciprocity are constructed and understood. More specifically, we argue that consideration of Indigenous perspectives on treaties and treaty-making as a way to interpret the substance of mutual roles and responsibilities enables a shift to models of reciprocal accountability that are based on the mutual building of long-term, trust-based relationships, while also providing a frame that emphasises the maintenance of the sovereignty of the entities that are party to such relationships.
The publication in 1997 of the 'Bringing Them Home Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families', was a crucial breakthrough in recognition of the genocidal treatment of Indigenous children in Australian history. Tony Birch commented at the time that the public emotional outpourings that followed were 'a reaction of the moment', and he cited Slavoj Zizek's observation that 'in order to forget an event, we must first summon up the strength to remember it properly'. For some white historians, remembering 'properly' began with the commitment to painstakingly research and document the systematic forced removals in settler colonial history. For many remembering 'properly' was ignited by Indigenous testimony to the National Inquiry and reading published autobiographies,5 whose ways of telling and remembering challenge the discourse of western historiography and illuminate the resilience of generations of Indigenous individuals, families and communities.
This article presents the findings of a component of the National Assessment of Australiau0027s Childrenu0027s Courts (the u0027national studyu0027). Specifically, this article focuses on the perceptions of magistrates in the New South Wales (NSW) Childrenu0027s Court (u0027NSWCCu0027 or the u0027Courtu0027) in relation to the issues facing Indigenous young people in the Courtu0027s criminal jurisdiction generally, and the potential of Indigenous youth courts more specifically. Part II outlines the method for the national study from which this article stems, as well as the method for the NSW component of the study. Part III provides an analysis of NSWCC magistratesu0027 perceptions of challenges and reforms in the Courtu0027s criminal jurisdiction as they relate to Indigenous young people specifically, and discusses our analysis in light of findings from the national study from other states and territories. Finally, Part IV briefly considers the key findings of our analysis in light of the current Koori Youth Court pilot.
In 1997 the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families ('National Inquiry') released its report 'Bringing Them Home ('BTH')'. The National Inquiry found that almost every Indigenous family in Australia is affected by former government policies which enabled the removal of children from their families on the basis of their Indigeneity. About a third of 'BTH' addresses contemporary removals under child welfare, juvenile justice and family law. The National Inquiry found that human rights based law and policy reforms must be implemented to ensure that Indigenous families and communities in Australia never again suffer the forcible removal of their children because of their ethnicity.
Customary law is an integral part of the lives and identities of Indigenous people across contemporary Australia. But its existence alongside Australian criminal law raises complex questions of law and political morality. It seems difficult to reconcile these two systems of law with the principle that all Australians stand equal before the law, and the intuition that people should not be subjected to different criminal sanctions on the basis of race or ethnicity. In this paper, I argue that, despite this apparent tension, the values and purposes of criminal punishment require sentencing courts to consider customary law where relevant. The Federal Government’s exclusion of customary law from sentencing is inconsistent with the guarantee of equality before the law under the Racial Discrimination Act 1975 (Cth). In Part II, I begin by introducing the state of the law in Australia. For many years, Australian courts have considered relevant customary law when sentencing Indigenous offenders. However, the Federal Government has recently legislated to exclude customary law from sentencing at the Commonwealth level and in the Northern Territory.In Part III, I analyze the normative question of whether sentencing courts should take customary law into account. Courts must have regard to all relevant factors when sentencing an offender. This is the principle of individualized justice. Whether a factor is relevant depends on the purposes and values of criminal law. It is a question of what criminal law is for. Customary law is relevant to sentencing because it influences whether, and to what extent, criminal punishment realizes these purposes and values in the particular case. The blanket exclusion of customary law denies certain Indigenous offenders individualized justice. This normative reasoning is reflected in the way Australian courts have traditionally considered customary law when sentencing Indigenous offenders.In Part IV, I examine two criticisms of the courts’ use of customary law in sentencing. The first criticism is that Aboriginal men distort customary law to justify their violence against women and children. The second criticism is that this sentencing practice makes Indigenous people and their law objects of the white, settler legal system.Finally, in Part V, I evaluate the legal question of whether the Federal Government’s exclusion of customary law contravenes the Racial Discrimination Act. Drawing on the analysis in the Part III, I argue that the exclusion denies certain Indigenous offenders individualized justice. The Federal Government claims that the exclusion helps protect Indigenous women and children from violence. But the empirical evidence suggests the opposite. It is the loss and destruction of customary law that has contributed to violence in Indigenous communities. The exclusion of customary law from sentencing is thus inconsistent with the Racial Discrimination Act.
u0027[T]he Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.u0027 On 3 June 1992, with those words, it is said that the High Court freed Australia from the concept of u0027terra nulliusu0027. The decision in u0027Mabou0027 that the common law recognised and protected Indigenous rights in land that existed at the time Britain acquired sovereignty was truly a watershed moment in Australian legal history, shaking the foundation of land law on which British claims to possession of Australia were based.
The failure of Australian native title jurisprudence to develop any scope for the recognition of commercial native title rights has been much lamented. This article first briefly summarises that failure, and then turns to describe the Akiba litigation that culminated in the High Courtu0027s 2013 decision of u0027Akiba v Commonwealthu0027 (u0027Akiba HCu0027), and explains how that decision presents an opportunity at last to develop the jurisprudence in a direction more amenable to the recognition of commercial native title rights. I briefly note that the opportunity has not been seized in some recent native title judgments, probably because they were mostly argued prior to u0027Akiba HCu0027, before proceeding to discuss the 2014 Federal Court cases of u0027Willis on behalf of the Pilki People v Western Australiau0027 (u0027Pilkiu0027), and u0027BP (deceased) on behalf of the Birriliburu People v Western Australiau0027 (u0027Birriliburuu0027), the former of which has now been upheld by the Full Court of the Federal Court. These decisions represent the first fruit of the tortuously slow development of the jurisprudence in this area. This article attempts to glean some lessons from those cases that can be applied to future claims for commercial native title rights, before finally looking to the practical ramifications of this development in the law.
Aboriginal and Torres Strait Islander children continue to be significantly overrepresented across all age groups in the Australian Out-of-Home Care system ('OOHC'). Recent data from the Australian Institute of Health and Welfare paints a worrying trend. From 2010 to 30 June 2015, the rate by which Indigenous children were placed in OOHC care rose from 40.4 to 52.5 per 1000 children. For the same period, the non-Indigenous rate rose only slightly from 5.1 to 5.5 per 1000 children. This disparity was evident across all jurisdictions, though there were fluctuations. Overall, nationally the rate of Indigenous children entering OOHC was 9.5 times that for non-Indigenous children. Of the 43 399 children in OOHC at June 2015, 15 455 were Aboriginal or Torres Strait Islander.
The over-representation of First Peoples, generally, and women specifically, in Australian prisons is beyond debate. However, Australia has seen a revalorisation of the prison and punitive measures like incarceration as the primary solution to social problems and social disadvantage, despite an array of abolitionist and prison rights campaigns, particularly across New South Wales and Victoria, that have impacted upon governmental and correctional penal reform policies.
A key question in contemporary Australian Aboriginal policy is how to turn wealth derived from resource extraction on Aboriginal land into economic and social prosperity. Large amounts of mineral wealth are being extracted from or near Aboriginal communities, yet Aboriginal people continue to be less educated, live shorter lives and pass on less wealth to their children than their non-Aboriginal counterparts. One method used by Australian Aboriginal people to redress this paradox of 'poverty in the midst of plenty' is agreement-making through negotiation with resource companies. This has been shown to reap great benefits for Aboriginal groups. It has also been demonstrated, however, that traditional owners can encounter significant pitfalls when negotiating agreements with resource companies. This agreement making is largely conducted pursuant to legislation - the 'Native Title Act 1993' (Cth) ('Native Title Act') and land rights legislation - although it can also occur where there is no legislative imperative.
