Research Paper 27 1998-99

From Dispossession to Reconciliation

John Gardiner-Garden
Social Policy Group
29 June 1999

Contents

Major Issues

Introduction

PART I: The First 200 Years

The 19th Century and the Period of Dispossession

The Mid 20th Century and the Period of Assimilation

1967 Referendum and a New Beginning

The Early 1970s and the Concept of 'Self-determination' and 'Self management'

The Late 1970s and Early 1980s-the Concept of a Treaty or 'Makarrata'

The Mid 1980s and the Return of the Concept of 'Self-determination'

PART II: The Next 10 years

The Late 1980s and the Concept of a 'Compact'

1989/1990 and the Concept of 'Self-government'

The Late 1980s/Early 1990s and the Concept of Reconciliation

The Response to Mabo and Debate on a 'Social Justice Package'

The Mid 1990s and the Inquiry into the Separation of Indigenous Children

The Late 1990's and a New Language

Part III: The Last Year

The 1998 Election and a New Commitment

The End of 1998/Beginning of 1999 and a Plethora of Problems

Early 1999 and a Draft Pre-amble

Mid 1999 and a Draft Declaration of Reconciliation

Part IV: The Road Ahead

The Apology Obstacle

Conclusion

Appendix 1. Council for Aboriginal Reconciliation, Addressing the Key Issues for Reconciliation, Canberra, 1993, pp.51-52

Appendix 2: Parliamentary Motions of Apology-Stolen Children

Appendix 3: Overseas Use of the Term Reconciliation

Endnotes

Major Issues

This paper attempts to trace the rhetorical road which has led from the period of dispossession and the policy of assimilation to the later policy of self-determination and the present process of reconciliation.

The notional citizenship ascribed to Aboriginal people at the end of the 18th century was eroded during the nineteenth century-with dispossession from land being followed by dispossession from family. In the mid-twentieth century a rhetorically more benign period of assimilation was ushered in, but laws, including Commonwealth laws-intended to 'protect' or advance people's 'welfare' quickly became laws which further oppressed and alienated indigenous people. Indeed, during this period the removal of children from indigenous parents shifted from being an ad hoc State practice to a systematised strategy agreed on by all governments, State and Federal.

In the early 1960s, as more voices drew attention to the meagre achievements of the assimilation policy, the Commonwealth began to reform the system within its own jurisdiction, removing various legal liabilities it had imposed, or let be placed, upon indigenous Australians. The States soon began to follow suit, repealing most of their discriminatory legislation. The 1967 referendum, although simply clearing a broader way for the Commonwealth to make special laws in relation to Aboriginal people, was subsequently linked in the popular imagination with a wide range of developments which took place between the early 1960s and early 1970s-a decade which ended with the emergence of the new policy of 'self-determination'.

With the Fraser Government dropping 'self-determination' from Commonwealth rhetoric and showing no sign of following up its support for land rights in the Northern Territory with support for a national system of land rights, a campaign got under way for a more basic immutable recognition of indigenous rights in the form of a 'treaty', 'compact' or 'makaratta'.

When the Labor party returned to office in 1983, 'self-determination' returned to the Commonwealth vocabulary, the issue of national land rights was again on the agenda and work began on moving away from the Departmental model of service delivery towards that which became the Aboriginal and Torres Strait Islander Commission. However, when the Hawke Government subsequently limited that which it meant by self-determination and backed away from the pursuit of national land rights, calls for a treaty became even stronger. In 1988 Prime Minister Hawke committed his government to concluding a 'compact' by 1990. Failing, however, to achieve bi-partisan support for a treaty or even a resolution backing the right of indigenous people to self-determination, the Hawke Government started to see some merit in the concept of 'reconciliation' being advanced by the Christian Church leaders.

In 1991 bi-partisan support was achieved for the passage of a bill setting up the Council for Aboriginal Reconciliation and setting in motion a formal ten-year 'process of reconciliation'. Prime Minister Keating, in his Redfern speech of December 1992 and his Government's decision to set up a national inquiry into the separation of indigenous children, sought to advance this process by encouraging some recognition of past injustices. In his government's native title and land fund legislation and proposed 'Social Justice Package' he sought to advance the process of making amends for the disregard of indigenous common law rights which the 1992 Mabo judgement had found to have occurred.

The new Howard Government dropped the terms 'social justice' and 'self-determination' and withdrew support from many of the initiatives and institutions for which these terms were the raison-d'etre and declared its new priorities to be 'accountability', 'improving outcomes in key areas' and 'promoting economic independence'. Many of the Government's subsequent administrative actions, together with the Prime Minister's perceived lack of action over responding to the rhetoric of One Nation, ended up, however, placing an enormous strain on its relationship with the indigenous community.

Upon his re-election in October 1998, Prime Minister Howard acknowledged at least one instance in which his words could have been better chosen and declared reconciliation would be a priority for his Government's second term. It soon became clear, however, that the reconciliation to which the Prime Minister had committed himself appeared to be a much narrower concept than that to which many others in the community were working. The Prime Minister did eventually express support for some form of constitutional recognition of indigenous people and declaration of reconciliation, but his own proposed constitutional preamble fell well short of recognising prior indigenous custodianship of the land or any past injustices, his impression of the Council for Aboriginal Reconciliation's Draft Declaration was that it would need amendment and he has continued to resist calls to making a formal Government apology for past injustices.

On 4 June 1998 the Council for Aboriginal Reconciliation formally opened a six month process of public consultation leading up to a National Reconciliation Convention on 27 May 2000 at which a final plan will be presented.

On 1 January 2001, the anniversary of the Centenary of Federation, the Reconciliation Council will cease to exist. What may be in place when it does so, in terms of documents, preambles, new bodies etc, is still far from clear.

Introduction

In the early years of colonisation indigenous Australians occupied an important place in the lives and writings of Australian settlers, but as indigenous dispossession became complete there descended that which the anthropologist W.E.H. Stanner dubbed 'the great Australian silence', an inattention, he argued, resulting not from an accidental oversight but from viewing Australian history and society through a window carefully placed to exclude a whole section of the landscape.(1) Over the last 30 years writers of histories, reports, commentaries and judgements have offered more and more windows onto once hidden parts of the landscape and this has resulted in a broadening of the public debate on indigenous affairs. This debate, which had been centred for most of this century on how best to implement 'assimilation', moved on to explore concepts of 'self-management', 'self-determination', 'self-government', and 'sovereignty', and to grapple with the possibility of a 'treaty', 'compact' or 'makarrata'. In more recent years the debate has progressed onto the issues surrounding a possible 'social justice package', 'preamble to the constitution' and 'an apology for past policies'. In June 1999 the debate received a new focus with the Council for Aboriginal Reconciliation releasing its draft 'Declaration for Reconciliation' and formally opening a final process of public consultation leading up to a National Reconciliation convention in May 2000.

No matter how far debate progresses, however, the past is never far behind. It is no surprise, therefore that protagonists in the debate sometimes label each other according to their purported attitude to the past, that is as being adherents to a 'black arm band' or 'white blind fold' view of history.(2)

This paper attempts to trace the rhetorical path which has led from the 'policy of assimilation' to the present 'process of reconciliation' and to identify some of the main obstacles still to be negotiated if the goal of reconciliation is to be attained in any meaningful sense by the centenary of Federation in 2001. In so doing many issues will be touched upon, but in an attempt to keep the chronology moving and the main themes in focus, discussion of some of these issues (for example land rights legislation and service delivery mechanisms) may be episodic and limited.

PART I: The First 200 Years

The 19^th Century and the Period of Dispossession

The first century and a half of European-Aboriginal relations in Australia can be characterised as a period of dispossession, physical ill-treatment, social disruption, population decline, economic exploitation, codified discrimination, and cultural devastation. The notional citizenship ascribed to the Aboriginal people at the beginning of this period was all but gone by the end of it, and as if to illustrate this point, in every State the law specifically sanctioned the removal of Aboriginal children from their parents. The aim of such removals was to separate 'full-bloods' from the 'half-castes', curb indigenous reproduction (girls being especially targeted for removal), provide a cheap source of labour and facilitate the Christianising of the indigenous population.(3) In NSW, from 1909, the Aborigines Protection Board consciously strove to remove children of Aboriginal people from the influences of the camps and in 1915 the NSW's Aborigines Protection Act was amended to allow the Board 'to assume full custody and control of the child of any aborigine'- underwriting what was already the practice. Similarly, according to the Northern Territory Aboriginals Act 1910, passed by the South Australian Parliament in preparation for Commonwealth administration, the Chief Protector, represented by a protector in each Protector's District, was to be the legal guardian of 'every Aboriginal and half-caste child' up to the age of 18, irrespective of whether that child had a parent or other relative alive, and in due course it became usual for a protector to remove the children with light skins from their mothers. In Victoria too, as early as 1919, the inspector from the Aborigines Protection Board with police assistance forcibly removed children with lighter skins from their parents.

The Mid 20^th Century and the Period of Assimilation

In the mid-20th century the State's control over Aborigines started to be regarded as analogous to that which the common law permitted a father to exercise over his children. Although the legislation in this 'period of assimilation' varied between states, in every jurisdiction it tended to touch on similar areas (where an Aboriginal person could live, their access to alcohol, their wage rate, their access to their own wages, and whom they could marry) and laws intended for the 'protection' or 'welfare' of Aboriginals became laws which oppressed and alienated indigenous people.(4) Commonwealth legislation was no exception. Throughout the period of assimilation Commonwealth legislation supported discrimination against Aboriginal people in such areas as voting rights, wage entitlements and social security eligibility.(5) Indeed, it was not until 1966 that the Commonwealth extended social security eligibility to all indigenous Australians.

The above regulations and restrictions all illustrate that which Jeremy Beckett refers to as the 'contradictory nature of the Assimilation Policy', a policy which:

Nowhere, however, does the destructive and contradictory nature of the assimilation policy become so apparent as in the area of the removal of indigenous children from their parents. The haphazard State legislation in this area in the late 19th and early 20th century gave way in the mid-20th century to systematised removal. In 1937 the Commonwealth State Native Welfare Conference declared that 'the destiny of the natives of aboriginal origin, but not the full blood, lies in their ultimate absorption by the people of the Commonwealth' and the conference recommended 'that all efforts be directed to that end'(7). There followed more rigorous surveillance and enforcement regimes, underpinned by the notion that there was nothing of value in indigenous culture. Some jurisdictions, such as Western Australia, Northern Territory, South Australia and Queensland, continued with their special laws into the later 1950s and early 1960s, before transferring indigenous children to the mainstream system. Others, such as Victoria, Tasmania and New South Wales, started applying the same laws to indigenous and non-indigenous families much earlier but application of general child welfare laws did nothing to slow the rate of forced removal and in some places increased it, with courts prepared to equate 'poverty' with 'neglect' and an indigenous life-style with 'uncontrollable'.

The third Native Welfare Conference in 1951, at which the newly appointed Federal Minister for Territories, Paul Hasluck, advanced assimilation as the remedy to the inconsistent policies which made a mockery of Australia's attempt to promote human rights internationally, did nothing to stem the removals. Indeed, States began to widen the scope of their removal policies and in the 1950s and 1960s children were being removed not just for alleged neglect, but to attend school in distant places, receive medical treatment and to be adopted out at birth. To alleviate the pressure on State institutions and to facilitate a more rapid assimilation, many children were placed with white foster parents. In 1989 Coral Edwards and Peter Read estimated that at the time of writing there were 100 000 people who were either themselves removed, or are descendants of people removed, from their Aboriginal families.(8)

As more voices drew attention to the meagre achievements of the assimilation policy, the denial of civil rights that it entailed and the poor international image it gave Australia, the Commonwealth Government began to reform the system within its own jurisdiction. In the early 1960s it lifted restrictions on eligibility for benefits, extending the federal franchise, and removing various legal disabilities. The States found themselves under pressure to follow suit and most discriminatory State legislation was soon repealed.

1967 Referendum and a New Beginning

Throughout the period of assimilation the administration of Aboriginal Affairs was regarded primarily as a State responsibility. Although the Commonwealth had been empowered to legislate for the protection of Aborigines in the Northern Territory after South Australia handed over the Territory to the Commonwealth Government in 1911, it was only after the 1967 Constitutional referendum and the amendments to sections 51 and 127 of the Constitution, that the Commonwealth was free to accept wider responsibility for the Aboriginal people.(9) The constitutional amendments removed the barrier to the Commonwealth Parliament making special laws in relation to the Aboriginal 'race' and offered successive governments the head of power to enact a vast body of legislation intended to benefit indigenous people.(10) The amendments did not, however, as has since been widely believed, guarantee Aboriginal voting rights (this right had been clarified in 1962), confer citizenship rights on Aboriginal people (in theory they had never lost these) or grant award wages to Aboriginal people in the pastoral industry (this did not happen until 1968 and was the result of an unrelated process linked to a successful action in the Conciliation and Arbitration Commission by the North Australia Workers Union in 1965)(11). It did not offer Aboriginal people and Aboriginal rights any constitutional recognition. Nor did it give the Commonwealth Government exclusive responsibility for Aboriginal Affairs, or even any explicit responsibility in the area (had such responsibility been sought, the State Governments would almost certainly have opposed the proposal). It is also arguable that the Government could have set up an Office or Department of Aboriginal Affairs and to initiated programs to address Aboriginal needs without the constitutional amendment, just as the Commonwealth has set up Departments of Education and Health, when primary constitutional responsibility in these areas rests with the States.

Indeed, for the first five years following the referendum, there was a degree of Aboriginal frustration at the lack of Federal Government action. Prime Minister Holt established a Commonwealth Council for Aboriginal Affairs, under the chairmanship of Dr. H.C. Coombs, and set up an Office of Aboriginal Affairs within his own Department. Mr Holt's successor, Mr Gorton, appointed Mr Wentworth Minister-in-Charge of Aboriginal Affairs, but did not appear interested in stimulating Commonwealth activity in the area of Aboriginal Affairs. According to Dr. H.C. Coombs:

In his address at the Conference of Commonwealth and State Ministers responsible for Aboriginal Affairs at Parliament House in Melbourne on 12 July 1968, Mr Gorton said:

The lives of Aboriginal people remained primarily in State hands. In 1972 the McMahon Government announced a policy which recognised the rights of individual Aboriginals to effective choice about the degrees to which, and the pace at which, they might come to identify themselves with the wider society and which aimed to encourage Aboriginals 'increasingly to manage their own affairs-as individuals, as groups, and as communities at the local level'. There were, however, few actions to match the rhetoric. Prime Minister McMahon's Aboriginal Affairs Minister, Peter Howson, proposed a new general purpose lease for Aborigines, but these leases would be very different from an acknowledgment of land rights, would be conditional upon Aboriginal peoples' 'intention and ability to make reasonable economic and social use of the land' and would 'exclude all mineral and forest rights'.(13)

Aboriginal frustration at the general lack of federal government action in the five years following the referendum and the McMahon Government's attitude to land rights culminated in the raising, on 26 January 1972, of a 'Tent Embassy' on the lawns in front of Parliament House in Canberra. The tents were re-erected after being torn down by police on 20 July 1972 and, after a violent clash with police, on 23 July 1972 and on 30 July a demonstration of approximately 1500 people prevented the tents being removed again on that day.(14) A flag designed the year before by Aboriginal artist Harold Thomas (and flown on 12 July 1971, National Aborigines' Day, in Adelaide's Victoria Square) was flown at the Tent Embassy and this flag soon became the focus for Aboriginal land rights aspirations for which it had been intended.(15)

Although the short term political significance of the 1967 referendum may be questioned, its long term symbolic significance cannot be, and although the event may have become distorted by myths, it has proved to be a very useful marker of change, and as Andrew Markus observes, 'markers are so difficult to find on the field of desolation that is the history of Aboriginal-white relations'.(16) Indeed, the referendum has come to act as a form of historical shorthand for a decade of change in the area of Aboriginal Affairs, a decade which began in the early 1960s and ended in the early 1970s.

The Early 1970s and the Concept of 'Self-determination' and 'Self management'.

It was not till Labor won office in December 1972 that the term 'self-determination' was introduced and the Federal Government was able to successfully project itself as totally reversing the previous 'assimilation' policy.(17) Mr Whitlam declared that his government's policy would 'restore to the Aboriginal people of Australia their lost power of self-determination in economic, social and political affairs'. The four main developments which came to be associated with this commitment were legislation to enable Aboriginal communities to incorporate for the conduct of their own affairs, the establishment of the National Aboriginal Consultative Committee consisting of 41 elected representatives, the establishment of the Aboriginal Land Rights Commission and an increased level of spending on programs specifically directed to Aborigines through the newly created Department of Aboriginal Affairs. The first two of the above developments were seen to evidence an intention to involve Aboriginal people in the running of Aboriginal affairs at all levels. The third and fourth developments were seen as evidence of commitment to overcome Aboriginal economic deprivation. Both the Aboriginal involvement and the 'equality of opportunity' sides to the concept of 'self-determination' are evident in a statement made by the then Minister for Aboriginal Affairs, Senator Cavanagh, in 1974:

When the Liberal-National Country Party coalition came to office in 1975, 'self-determination' was dropped from the Government's vocabulary. The policies which the Australian Labor Party (ALP) had grouped within the concept of 'self-determination' were given different labels. Aboriginal involvement in their own affairs was now called 'self-management' and the economic means by which Aboriginal people would have the opportunity to make decisions about their lives was called 'self-sufficiency'. Land rights and additional funds were presented not as part of the greater issue of 'self-determination' but as separate issues. The change in terminology reflected not so much a change in policy as a change in underlying philosophy. The L-NCP policy stressed the responsibility for successful and efficient administration that was to go with Aboriginal involvement, while seeing a limit to the Commonwealth's own responsibility in areas such as land rights. Although the new Coalition government passed the Aboriginal Land Rights (Northern Territory) Act 1976, essentially in the form which the previous Labor Government had prepared the legislation, it did not see it as a manifestation of the principle of self-determination and did not see it, as the previous Labor Government had, as a stepping stone to nation-wide legislation.

The Late 1970s and Early 1980s-the Concept of a Treaty or 'Makarrata'.

The realisation that the meaning of self-determination could vary with governments and that the spirit of the Aboriginal Land Rights (Northern Territory) Act 1976 was not going to be translated into nation-wide legislation led to a campaign for a more basic recognition of Aboriginal rights. The campaign first captured public attention in April 1979 following a call by the National Aboriginal Conference for the Federal Government to negotiate a 'treaty of commitment' between representatives of Aboriginal Australians and the Commonwealth. The Conference began speaking of a 'Makarrata', a term taken from a north-eastern Arnhem Land language, where it means the end of a conflict and the resumption of normal relations between communities. The Federal Government was prepared to discuss the concept of an agreement, but ruled out a treaty because of its connotations of separate nations within Australia.(19) There may have also been concern that a treaty implied massive group compensation. Indeed, the Victorian Parliament's Social Development Committee in Recommendation 4 of its 1982 Report upon Inquiry into Compensation for Dispossession and Dispersal of the Aboriginal People accepted 'that Aboriginal people as a whole have suffered or been disadvantaged as the result of dispossession and dispersal' and recommended 'that all Aboriginal people be eligible for compensation'. (20)

As most Aboriginal activists were focused on immediate political goals such as land rights, much of the work of publicising and promoting the concept of a treaty was taken on by the Aboriginal Treaty Committee, a non-Aboriginal organisation of prominent citizens including Dr H.C. Coombs and the poet Judith Wright. This committee was convinced that without a treaty or similar instrument, Acts of Parliament would be too subject to the winds of political change. It proposed that the treaty, covenant or convention include provisions relating to:

The Aboriginal Treaty Committee succeeded in having the treaty question referred to the Senate Standing Committee on Constitutional and Legal Affairs which reported in 1983. In its report, Two Hundred Years Later, the Senate Committee argued that past treaties made with indigenous populations in former British colonies were not very useful 'as precedents for a compact between Aborigines and the Commonwealth' as they were 'concluded at a time when the term treaty did not possess so fixed a meaning in international law as it does today', that is as 'an internationally recognised agreement between two nations'. The Committee further argued that the rights which indigenous people now had in countries such as New Zealand, the US and Canada, had come not from the treaties but from the domestic law applying to everyone within the nation's territorial boundaries. The Committee considered using the Aboriginal word 'Makarrata', but as it was a word peculiar to one Aboriginal linguistic group preferred to use the word 'compact'. It concluded that although at the time of settlement sovereignty may have resided in the Aboriginal people:

The Committee advised that its 'preferred method of legal implementation of a compact' between the Aboriginal population and the Commonwealth would be a referendum to amend the Constitution.(22) There would first have to be an education program to familiarise the Aboriginal and non-Aboriginal community alike with the idea of, and proposed substance of, the compact.(23) The 1988 bicentennial year was 'consistently suggested by many groups as a target date', but the Committee gained the impression that if a compact were to be decided upon, the education process might take somewhat longer.(24)

The Senate Committee's report did not immediately lead to any new treaty initiatives and the Aboriginal Treaty Committee, finding a lack of political will to implement a treaty, ceased its activities in February 1984.(25)

The Mid 1980s and the Return of the Concept of 'Self-determination'

Progress towards a 'treaty' may have reached an impasse in 1983, but with the ALP winning office that year, 'self-determination' returned to the Commonwealth Government's vocabulary and 'self-sufficiency' was dropped. In his major speech to the House of Representatives the then Minister for Aboriginal Affairs, Mr Holding, declared:

Similarly, in the ALP's 1982, 1984 and 1986 platforms, support is pledged to 'the policy of self-determination' and in its April 1987 paper entitled Achievements in Aboriginal Affairs 1983-84 to 1986-87, the Government cited the establishment of incorporated Aboriginal controlled organisations as a measure of success of the policy of 'self-determination'.

The Hawke Government's concept of self-determination, however, did not differ greatly from the previous Government's concept of 'self-management' and did not carry any of the connotations carried by the term 'self-determination' as used in International Law. As Mr Richard Chisholm, a Senior Lecturer in law at the University of NSW suggested:

Many indigenous activists, disappointed among other things by the Government's retreat in March 1996 from their pursuit of a system of national land rights, sought to link the domestic use and international meaning of the term. For example, Paul Coe, the then Chair of the National Aboriginal and Islander Legal Service Secretariat, argued in a United Nations Week Speech, October 1986, that international law recognises the Aboriginal people's statehood and that the Commonwealth of Australia must recognise 'the right to self-determination of the nation of the Aboriginal people'.(28) Shane Houston, the Coordinator of the National Aboriginal and Islander Health organisations in a speech given at the 'Self-Determination Indigenous People Speak Regional Forum', 29 June 1986, insisted that:

Professor Erica Irene A. Daes, Chair of the United Nations Working Group on Indigenous Populations, made it clear that she believed there was a general Aboriginal aspiration for self-determination and that by this they meant having control over their land, their laws and all aspects of their lives. Consequentially she recommended that:

The term 'self-determination', however, ended up being the main stumbling block to bi-partisan support for a resolution which church leaders had proposed parliamentarians pass as their first act in the new Federal Parliament House. The resolution in its final form read:

Although this resolution had already been modified to accommodate Opposition concerns (e.g. references to the legal recognition of land rights and to the desirability of a compact were dropped) the joint party meeting of the Opposition on the morning of the debate endorsed supporting the resolution only if the entitlement of self-determination already qualified by the words 'subject to the Constitution and the laws of the Commonwealth' were further qualified by the words 'in common with all other Australians'. The Social activist Father Frank Brennan suggested:

The amendment was not accepted and the Opposition did not support the resolution. The Government continued to use the term but avoided using it in international fora(33) and domestically always appeared to try to link it with 'self-management'. Thus the preamble to the 1989 Bill which established the Aboriginal and Torres Strait Islander Commission (ATSIC), a body which was to combine the representative and consultative functions of the earlier NACC and NAC, with the budget and program responsibilities of the Department of Aboriginal Affairs, declared the new body's objectives to be 'self-determination and self-management for the Aboriginal and Torres Strait Islander peoples within the Australian nation ...' and the Commonwealth Government's 1991 Budget Related Paper No.7 stated:

The Government's attempt to appear supportive of 'self-determination' while containing it within the parameters of 'self-management', led the House of Representative Standing Committee on Aboriginal Affairs to note in 1990 that 'at times Aboriginal people and governments have talked past each other because they have used terminology loosely'.(35)

PART II: The Next 10 years.

The Late 1980s and the Concept of a 'Compact'

In the late 1980s, while the debate over self-determination gathered pace, the prospect of a treaty, a prospect which had receded from the political scene in 1984, returned-sometimes under the alternate name of 'compact'. In September 1987 the then Prime Minister, Mr Hawke, who had been heavily lobbied by people such as the Aboriginal poet Kevin Gilbert and Mr Justice Michael Kirby, raised the possibility of a 'compact' between the Aboriginal and non-Aboriginal people. Mr Howard, the then Leader of the Opposition, rejected the idea claiming: 'There is no way the Australian people will ever accept that in some way we are two nations within one-nor should they'.(36)

On 12 June 1988, however, Mr Hawke effectively committed his government to concluding a compact by 1990. At the Barunga festival in the Northern Territory Galarrwuy Yunupingu, chair of the Northern Land Council and Wenten Rubuntja, chair of the Central Land Council, presented Mr Hawke with a petition framed with paintings done by elders of the Western Desert and Arnhem Land people. 'The Barunga Statement' read as follows:

The Prime Minister was quoted as agreeing to five proposals:

There ensued much debate over how the process should go forward. Shirley McPherson, chair of the Aboriginal Development Commission, called for a treaty to be embodied in the Constitution.(38) Professor James Crawford of the University of Sydney said he believed the treaty would be nothing more than a public relations exercise unless the issue of Aboriginal public law was addressed and the question of who represents the Aborigines settled.(39) In his Boyer Lecture on ABC radio in 1988 Dr Coombs suggested that in the absence of a recognised Aboriginal organisation with the authority to negotiate on behalf of the Aboriginal people, the National Coalition of Aboriginal Organisations (NCAO) could organise an Australia-wide convention to which all Aboriginals and their organisations could be invited, and argued that to be effective a treaty would have to require that:

In February 1989 the Aboriginal Law Centre at the University of New South Wales in consultation with the International Law Association, the NCAO and the National Aboriginal and Islander Legal Services Secretariat (NAILSS) hosted a seminar on 'Aboriginal People and Treaties' at the Law Centre. One contributor, the NCAO chair Geoff Clark, saw land rights as being crucial to the treaty issue, considered the working out of a consultation process a prerequisite to treaty negotiations and believed that there should be international monitoring-'A UN umpire if you like'.(41) Another contributor, Michael Mansell of the Tasmanian Aboriginal Centre was reported as posing five options for a treaty.(42) Four of these had been outlined in the Senate Committee's report Two Hundred Years Later... and could be negotiated within the Australian political context. The fifth option and the one favoured by Mr Mansell would recognise Aboriginal people as a separate nation:

At meetings in late 1988 and early 1989 the Prime Minister and the Minister for Aboriginal Affairs met with representatives of the NCAO to discuss how the compact consultations might be organised. The consultations, however, failed to get off the ground; the reasons included the lack of a representative Aboriginal organisation, the failure of the Government to allocate NCAO the funds budgeted for the consultations, the opposition of the Coalition parties and the preoccupation of the Minister with setting up the Aboriginal and Torres Strait Islander Commission.

Talk of a treaty, however, persisted. On 2 December 1989 a full page advertisement signed by prominent Australians, including Dr Coombs, appeared in the metropolitan press.(43) It was headed: 'Support the Barunga Statement and the Prime Minister's reply to it: A treaty with Aborigines in 1990'. The signatories called for political and financial support:

The advertisement claimed the funding which the Government promised for consultations would not be adequate and directed donations to the Aboriginal Law Centre at the University of New South Wales for distribution to NCAO and NAILSS. Mr Hawke himself revived the 'treaty' possibility in February 1990 during a visit to New Zealand for the 150th anniversary of the signing of the Waitangi treaty. He pledged his government would accelerate its efforts to make a treaty with Australia's Aboriginal population:

Warwick Smith, then Opposition Spokesperson on Aboriginal Affairs, argued, however, that it is impossible for a nation to have a treaty with itself:

1989/1990 and the Concept of 'Self-government'.

At the end of the 1980s a new term, widely used in North America, enjoyed a brief period of use in Australia. 'Self-government' was employed to describe one of the mid-way options between complete assimilation or complete separation. Models ranged from the creation of an Aboriginal State with the powers of other Australian States (it could be made up either of the various Aboriginal lands around Australia and have its parliament located in some central place such as Alice Springs or of one or two large continuous territories in Central and Northern Australia), to the recognition of traditional law, to constitutional guarantees of land rights, site protection and service delivery. (46)

In November 1991 a five member Legislation Review Committee established by the Queensland Government produced a discussion paper Towards Self-Government and reported that:

The committee proposed legislation which would recognise the pre-existing rights of indigenous people to self-government and which would enable Aboriginal and Islander communities to opt, by referendum, to progressively assume responsibility for a wide range of service till many have all the powers of existing local authorities, many of the powers of state administrations and some of the powers of the federal government.

Professor Henry Reynolds presented the Fraser Government's 1979 Norfolk Island Act as a possible model for regional Aboriginal self-government. Although the Pitcairn descendants on Norfolk Island had their claims to special rights dismissed by the High Court of Australia in 1976, Parliament recognised the 'special relationship of the [Pitcairn] descendants with Norfolk Island and their desire to preserve their traditions and culture'.(48) The move was supported by the Liberal minister of territories, Robert Ellicott who argued that although the island was 'part of Australia and will remain so, this does not require [it] to be regulated by the same laws as regulate other parts of Australia', by the National Party member Clarrie Miller who claimed 'it is generally accepted that Norfolk Island is quite unique in most respects' and by the Labor Party's John Dawkins who believed:

If the small Norfolk Island community of about 1500 permanent residents could exercise the right to elect a government with many of the powers of both federal and state governments (education, health, taxation, immigration, law-and-order and social welfare) so too, the argument went, could numerous Aboriginal communities.

The Late 1980s/Early 1990s and the Concept of Reconciliation

The word 'Reconciliation' had been introduced into the debate in 1988 when 14 heads of Australian Christian Churches issued a statement entitled 'Towards Reconciliation in Australian Society'. That statement focused on the history of Aboriginal-European contact and conflict, the place of Aborigines in Australian society and the need for committed acts of reconciliation. Although the Church leaders failed to get Commonwealth parliamentarians to pass a motion in the first session in the new Parliament House embracing 'reconciliation', the term lived on. In August 1989 Father Frank Brennan and Professor James Crawford delivered a joint paper to the Australian Legal Convention in Sydney, calling for a 'charter of recognition' backed up by an independent commission rather than a treaty. The Aboriginal Recognition Commission would be modelled on the Australian Law Reform Commission in that it would be chaired by a prominent Australian, invite submissions, hold public hearings and publish interim reports. It would hold a series of twelve annual meetings before 1 January 2001, the anniversary of the first centenary of Federation. The long-term aim of the Commission would be to present a draft Charter for Aboriginal Recognition to Commonwealth and State governments at a conference of Prime Minister and Premiers in 1999, allowing 18 months for debate leading up to a referendum to approve the wording.(50)

By 1990 the Government appeared prepared to embrace the concept, not necessarily as a first choice for the way forward, but as the only choice left. The failure to achieve bi-partisan support for either a 'treaty', a 'compact' or a resolution backing the right of indigenous people to self-determination, and an ambivalence in the general community about what if anything should be included in a treaty,(51) had led the Government to see some merit in a change of rhetorical tack.

In January 1991 Robert Tickner, Minister for Aboriginal Affairs, issued a discussion paper entitled Aboriginal Reconciliation which proposed the establishment by legislation of a Council for Aboriginal Reconciliation to facilitate a process of reconciliation between Australia's indigenous and wider communities. The Government's initiative was supported by the Opposition and seemed to be endorsed in the report of the Royal Commission into Aboriginal Deaths in Custody. The Council for Aboriginal Reconciliation Bill 1991 was passed in June 1991. On 25 December prominent Aboriginal and non-Aboriginal people were appointed to a Council chaired by Mr Patrick Dodson. The process of reconciliation was to be formally concluded by 1 January 2001. The council was to consult widely to determine whether the process would be advanced by a formal 'document of reconciliation' and, if so, make recommendations on the nature of such a document.

Expectations of the process of reconciliation varied enormously among advocates of Aboriginal rights. A former head of the Department of Aboriginal Affairs and later chair of the Arrernte Council of Central Australia, Charles Perkins, was reported as calling the process a big lie and a sell out.(52) Bob Weatherall, the chair of the self-titled 'Provisional Aboriginal Government', called for a boycott of the Council's meeting.(53) The council chair, Pat Dodson, said he would not have accepted the position if he thought a treaty or 'instrument of reconciliation' was not a possible outcome.(54) Lois O'Donoghue, chair of ATSIC and a member of the Council for Aboriginal Reconciliation, in a speech to mark the 25th Anniversary of the 1967 Constitutional referendum, expressed the hope that the reconciliation process would produce something more valuable than a treaty-a constitution which specifically recognised indigenous Australians and their rights.(55)

On the 10th December 1992 the then Prime Minister, Mr Keating, in his so-called 'Redfern Speech', publicly linked progress down the path to reconciliation with Australian society coming to terms with the past:

The Council for Aboriginal Reconciliation sought to further stimulate public discussion with the publication in 1993 of eight 'key issue' papers.(56) Paper no. 4 suggested:

Paper no. 7 canvassed options for a document of reconciliation. The non-statutory options included area-specific protocols between various bodies, new inter-governmental agreements, and a 'treaty'. Statutory options included legislative recognition of indigenous rights (in areas from self-government to customary law) and a statutory Bill of Rights. Constitutional options included the insertion of a preamble acknowledging prior indigenous ownership of the land, constitutional recognition of a Bill of Rights, of specific indigenous rights and bodies, and or of federal, state and territory government obligations to indigenous people, the creation of reserved seats in Parliament, and replacing s. 51(xxvi) of the Constitution (the 'race power' provision) with a more positively worded provision which mentions 'Aboriginals and Torres Strait Islanders'.

The Response to Mabo and Debate on a 'Social Justice Package'.

In the two decades following the failure of the applicants in the 1971 Northern Territory Supreme Court Case Milirrpum v Nabalco to have the concept of terra nullius overturned, most supporters of indigenous rights turned from pursuing common law rights to struggling for statutory land rights and/or a treaty. Most, but not all. In the 1980s some Torres Strait Islanders, led by Eddie Mabo, pursued their common law rights through the courts. On 3 June 1992, after 10 years of litigation, the High Court decided that the common law recognises that native title may survive the acquisition of sovereignty by a colonising power. The Court found that native title did not arise out of a grant from a government but was a pre-existing customary ownership of land which has survived since pre-colonial times. Indeed, the court implied that native title continued to exist elsewhere in Australia, wherever it has not been extinguished by governments and provided that the local Aboriginal and Torres Strait Islander groups had maintained a relationship with their traditional country based on customary law. The judgement offered the recently established process of reconciliation a challenge and an opportunity, and the Government's response ended up coming in three phases.

The first phase of the Government's response was the Native Title Act 1993, creating an opportunity for at least some Aboriginal and Torres Strait Islander groups to receive formal, legal recognition of their customary ownership of their country.(58)

The second phase of the Government's response to the decision followed indigenous people lobbying for establishment of a land fund to help satisfy the land need of the dispossessed indigenous people, who, because of dispossession, would rarely be able to demonstrate the continuous connections to land required under Native Title legislative guidelines. This led initially to expansion of the land acquisition programs within ATSIC to include the sub-component of native title, and then to the Federal Government establishing a new land fund and Indigenous Land Corporation to manage monies drawn down each year from the fund.

The third phase in the Government's response was to be a Social Justice Package. This package had been promised by Prime Minister Keating in his second reading speech on the Native Title Bill and in 1994 the Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, told the 12th Session of the UN Working Group on Indigenous Populations:

ATSIC, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner coordinated a consultation process which reported community calls for:(60)

• measures for recognition, protection, revival, maintenance and development of Aboriginal and Torres Strait Islander cultural heritage
• protection for 'intellectual property' such as creative designs for artworks, designs, traditional songs and stories or traditional medicines
• reviewing and strengthening existing laws for the protection of sacred and significant sites and objects
• making a new effort to see what elements of customary laws could be recognised within the general laws of Australia
• programs for increasing awareness, in the education system and in the community generally, of indigenous cultures and spirituality
• examining the possibility of recognising, in Australian law, a form of communal title that better reflects Aboriginal and Torres Strait Islander traditional attitudes to property
• measures to increase the participation of Aboriginal and Torres Strait Islander peoples in Australian economic life
• recognition, including in the Australian Constitution, of the special place and rights of indigenous peoples in Australian society
• greater measures of self government for Aboriginal and Torres Strait Islander communities
• regional agreements between indigenous peoples and governments which seek to set out rights and benefits
• seeking stronger commitments to improving Aboriginal and Torres Strait Islander access to, and equitable treatment in, all levels of government program and service delivery
• making greater effort to seek formal agreements with States and Territories, under the National Commitment to Improved Outcomes in Program and Service Delivery for Aboriginal Peoples and Torres Strait Islanders, in areas such as health, housing, infrastructure, employment, business funding and land management
• requesting the Commonwealth to impose specific requirements on States and Territories that funds provided are used in ways that adequately address the needs of indigenous peoples
• new measures to improve educational outcomes for indigenous peoples
• implementing major recommendations arising from the recent review of the Aboriginal Employment Development Policy, including the expansion and enhancement of the CDEP, Community Economic Initiatives and Business Funding Schemes
• ensuring that public health resources are equitably distributed to meet the health needs of indigenous peoples
• measures to ensure that funds under the Commonwealth State Housing Agreement are distributed equitably to meet housing needs of indigenous peoples, and
• measures to ensure culturally appropriate law and justice services.

In addition to this joint report, each body prepared its own report. While all took a 'rights-based' approach to social justice and canvassed possibilities for ensuring greater indigenous political representation, each highlighted different issues. The Social Justice Commissioner's report called for the creation of an indigenous parliament. The ATSIC report Recognition, Rights and Reform recommended a greater role for the ATSIC chairperson in the existing federal parliamentary system. The Reconciliation Council's report urged considering dedicated indigenous seats in parliament. Five other Reconciliation Council recommendations concerned 'displaced persons', with the Commission recommending that the Commonwealth, State and Territory governments:

The Mid 1990s and the Inquiry into the Separation of Indigenous Children.

In the early 1990s policy makers became increasingly aware that public ignorance concerning the removal of Aboriginal children was hindering both the provision of help to the victims of such removals and the reconciliation process in general. Helping to raise awareness of the problem had been several developments, including the Council for Aboriginal Reconciliation's submission to the Social Justice Package inquiry, a campaign by the Secretariat of National Aboriginal and Islander Child Care and the NSW organisation Link-up, the revelation in the Royal Commission into Aboriginal Deaths in Custody that nearly half of those who so died had been separated in childhood from their natural families, and a large 'Going Home Conference' in Darwin.

In 1995 the Federal Labor Government established the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families and in April 1997 the Human Rights and Equal Opportunity Commission presented its completed report, Bringing them home, to the Coalition Government, which had come to office in March 1996.

The Inquiry estimated that between 1910 and 1970 the number of indigenous children forcibly separated ranged from about one in ten children to one in three, depending on time and place, and that most indigenous families have been affected, in one or more generations, by the forced removal of one or more children. The majority of children removed were entirely separated from their indigenous community, were taught that indigenous culture was without value, were not allowed to use their language, suffered physically harsh living conditions and experienced multiple institutional and/or foster placements. Many were told they were unwanted, rejected or that their parents were dead. Almost one in ten boys and just over one in ten girls allege they were sexually abused in children's institutions-and more allege such abuse in foster placements. Extensive physical punishments were common. Education in the institutions was directed at preparing the children only for menial work. The Inquiry's report documents the effects not only on the children at the time (more than half of whom were removed during infancy) but also on those children later in life, on their children, on the families from which they were taken and on the foster carers when reunion is sought.

The Inquiry concluded that the forcible removal of indigenous children was an act of genocide contrary to the Convention on Genocide, ratified by Australia in 1949. This Convention included within its definition of genocide 'forcibly transferring children of [a] group to another group' with the intention of destroying the group (regardless of the extent to which that intention was achieved). It also concluded that even before international human rights law developed in the 1940s, the practice infringed the legal principles derived from the common law that children should not be removed from their parents and parents are the legal guardian of their children-unless a court, on evidence proving removal is in the best interests of the child, decides otherwise. Removal was taking place in WA (1905-1954), NT (1911-1964), NSW (1915-1940), SA (1911-1923) and Queensland (1897-1965) without a court order and in WA, NT, SA and Queensland laws made the Protector or Protection Board the legal guardian of Aboriginal children.

The Inquiry found that Australian Governments have a responsibility to respond with:

• acknowledgment of the truth and an apology
• guarantees that these human rights won't be breached again
• returning what has been lost as much as possible (known as restitution)
• rehabilitation, and
• compensation.

It was recommended that the wording of official apologies be worked out with the assistance of ATSIC and communicated with culturally appropriate publicity. To assist people affected by forcible removal the Inquiry recommended that the process of accessing personal and family records should be easier, that there should be a Family Information Service in every state and territory for indigenous people, that counselling and support should be available through a comprehensive network of indigenous family tracing and reunion services.

The Inquiry also recommended ways in which the Australian Governments could effect compensation in line with 'The Basic Principles and Guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law' (the van Boven Principles) and in the light of different overseas practices (e.g. the US Government offered monetary compensation to Americans of Japanese ancestry who had been interned during the Second World War and the Chilean Government is preparing to offer monetary compensation to the victims of the violations of human rights by the military dictatorship). The Inquiry recommended that the Australian Government set up a National Compensation Fund, with a board made up of indigenous and non-indigenous people, that anyone who can prove unjustifiable removal receive a basic lump sum, and that further compensation be awarded upon proof of particular effects of the removal.

The Late 1990's and a New Language

Following the election of the Howard Government in 1996 and the appointment of Senator John Herron as Minister for Aboriginal and Torres Strait Islander Affairs, Commonwealth Government rhetoric changed in several respects. The Government consciously dropped two terms which had been in use for most of the previous decade.

The first term dropped was 'social justice'. The Social Justice Package consultation process which the Keating Government had embarked on to help structure the Government's third tier response to the Mabo decision (after the Native Title Act and the establishment of the Land Fund), was discontinued and the previous Government's annual publication Social Justice for Indigenous Australians became Commonwealth Programs for Aboriginal and Torres Strait Islander Peoples and, in 1998, Addressing Priorities in Indigenous Affairs.

The second term dropped was 'self-determination'. On 25 August 1998 the Foreign Minister Mr Downer was reported as declaring the Government objected to the use of the term 'self-determination' in the Draft declaration on the Rights of Indigenous People, and, would urge the United Nations to replace the term with the words 'self-management' or 'self-empowerment'.(61) The reason given by Mr Downer was that the Government did not want 'to see a separate country created for indigenous Australians', but others argue the concept of self-determination with which Australia has worked for decades and which many other countries have supported for inclusion in the UN declaration does not threaten territorial integrity.(62)

The Government's declared priorities now included 'accountability', 'improving outcomes in key areas' and 'promoting economic independence'. Many of the Government's actions during its first term in office, as well-intentioned as they may have been, placed a strain on the relationship between the Government and the indigenous community. Most notably:

• in April 1996 the Minister issued General Directions to ATSIC requiring the appointment of a Special Auditor to make a determination on whether a prospective grantee was 'not fit and proper' to receive public money, but on 4 September 1996 the Federal Court judged that the Minister's General Directions were invalid. In that same month the Government also commissioned an audit of the Aboriginal Legal Services, an action construed by some as an more an attempt to compound public perception of mismanagement than to facilitate greater accountability,(63) and reversed its election position of favouring the election rather than appointment of the ATSIC chairperson
• in the August 1996 Budget ATSIC's projected budget over the next four years fell by $470 million from that which had been projected by the previous government. Less was allocated in that year than had been spent on indigenous programs in 1994-95. ATSIC expenditure fell from $968.5 million-in 1995-96 to $894.1 million-in 1996-97 and this was not a result of the transfer of any significant function to another portfolio area (indeed overall indigenous specific expenditure fell dramatically in the 1996-97 financial year).(64) As the Minister also directed that expenditure in some areas be quarantined, expenditure in some other areas fell dramatically and some programs (e.g. The Community and Youth Support Programme) had to be terminated altogether
• in the May 1997 Budget the Federal Government announced a review of Abstudy raising concerns that the Government may seek to replace it with Youth Allowance and that this may have an impact on indigenous participation in education
• in October 1997 the Minister appointed barrister John Reeves to review The Aboriginal Land Rights Act (Northern Territory) 1976-raising fears that the Act which most Aboriginal people view as offering the benchmark in the area of land rights might be watered down or handed to the Territory Government to administer
• in November 1997 the Government did not reappoint Pat Dodson as Chair of the Council of Reconciliation
• in April 1998 the Minister released a discussion paper entitled Removing the Welfare Shackles, recommending establishing Indigenous Business Australia ('the IBA') to take over the current operations of the Commercial Development Corporation ('the CDC'), amalgamating ATSIC's business programs with those of the current CDC, transferring the ATSIC Housing Fund to the prosed IBA, transferring the funds management activities of the Indigenous Land Fund and the Aboriginal Benefit Reserve into the proposed IBA and establishing what could loosely be called an 'indigenous bank'
• in January 1998 the Government abolished the position of Aboriginal and Torres Strait Islander Social Justice Commissioner
• in May 1998 the Government's budget provided for a reduction in ATSIC's budget from $973.6 million-in 1997-98 to an estimated $960.3 million-in 1998-99. Overall indigenous specific expenditure would increase slightly from $1852.3 million-in 1997-98 to an estimated $1878.0 million-in 1998-99, but after adjusting for CPI, this actually represented a slight fall
• in July 1998 the Minister sought a special audit from ATSIC's Office of Evaluation and Audit into ATSIC conferences, and
• finally, and perhaps most significantly of all, in July 1998 the Government passed, after much debate inside and outside Parliament, its Native Title Amendment Bill, introduced in November 1997.(65)

The impact of all of the above on the process of reconciliation was magnified by perceptions that the Howard Government, in its first term in office, was not matching its declared support of the concept of reconciliation with the language required at crucial moments, for example, by not rising to the rhetorical challenge posed by Pauline Hanson and her One Nation Party, not finding the appropriate tone for a speech at the Australian Reconciliation Convention in Melbourne (26 to 28 May 1997) marking the 30th anniversary of the 1967 referendum and by not committing itself, as the Human Rights Commission had recommend, to working with indigenous people on the appropriate words for an official apology for past actions.

Nevertheless the Government's December 1997 official response to the Bringing them home Report was accompanied by a $63 million package which included $2 million for Australian Archives to index, copy and preserve thousands of files so they are more readily accessible, nearly $6 million for further development of indigenous family support and parenting programmes, $16 million to the National Library for an oral history project, $9 million for culture and language maintenance programmes, more than $11 million to establish a national network of family link-up services, $16 million for 50 new counsellors to assist those affected by past policies and for those going through the reunion process and $17 million to expand the network of regional centres for emotional and social wellbeing, giving counsellors professional support and assistance.(66) The absence from this Government response of a commitment to an apology represented, however, in the opinion of the ATSIC Chair Gatjil Djerrkura:

Part III: The Last Year

The 1998 Election and a New Commitment

Perhaps appreciating a perception that his Government had failed in its first term to advance the process of reconciliation (indeed, explicitly acknowledging that he had overreacted at the 1997 Reconciliation Convention), on the evening of his re-election on the 3 October 1998, Prime Minister Howard declared reconciliation a priority for his Government's second term:

Mr Howard elevated reconciliation's status to that of a portfolio, which he assigned to the Immigration and Ethnic Affairs Minister, Philip Ruddock, who he then brought into Cabinet. In November 1998 he gave the Council for Aboriginal Reconciliation the extra $2.4 million it had requested to assist its work and gave his personal backing to drawing up, by May 2000, a historic document 'that acknowledges the historical truths of this country, the prior occupation of it by the indigenous people; it must acknowledge injustices'.(69)

The Prime Minister's post-election embracing of the concept of reconciliation was not, however, seen to be unqualified. He followed his re-election night commitment with a rejection of that which he termed the negative, mean-spirited, black armband view of history,(70) and he followed his subsequent declaration of support for a document of reconciliation with a declaration that he did not favour including in such a document an apology for past wrongs, nor of adding a preamble to the Constitution acknowledging indigenous rights.(71) Since the 1998 election the Minister for Aboriginal Affairs and Torres Strait Islander Affairs, Senator Herron, has also restated his opposition to an apology, describing it as 'an attempt at blackmail'.(72) The Deputy Prime Minister and leader of the National Party, Mr Tim Fischer, who in the course of the October election described land councils as 'blood-sucking bureaucracies', was reported in mid-December 1998 as calling for 'a properly balanced document', but not an official Government apology or a treaty.(73) By late December Mr Howard was reported as appending a commitment to 'try to reach an understanding with Aborigines' with the suggestion that:

A broader concept of that which reconciliation may imply does appear, however, to have been entertained by Mr Ruddock, the newly appointed Minister to assist the Prime Minister with the issue. In one interview he suggested 'an apology is often the basis upon which you are able to move forward'(75) and in another said:

Many outside the Federal Government have indeed been urging the Government to entertain a broader concept of that which reconciliation involves. Thus, Evelyn Scott, Chair of the Council for Aboriginal Reconciliation, spoke of the need for a Declaration of Reconciliation which would include, among other things, acknowledgment of the history of indigenous dispossession from land and families and a commitment to work toward the fuller participation of indigenous peoples in the economic, political, cultural and social life of the nation', along with constitutional reforms, new Commonwealth and State legislation to recognise and protect the documents and renewed commitments to address Indigenous disadvantage.(77) Similarly, Gustav Nossal, the Deputy Chair of the Council for Aboriginal Reconciliation, welcomed the Prime Minister's renewed commitment to reconciliation but suggested:

David Buckingham, executive director of the Business Council of Australia, speaking at the round table for community leaders on 25 October 1998, argued that reconciliation was not just a matter of health, education and services, but ultimately about 'indigenous rights' and until the community embraced the concept of indigenous rights, there would be a clash of expectations and the reconciliation process, in which a document would be but one step, would be incomplete.(79) Similarly Fred Chaney suggested that:

Gatjil Djerkura, the Chair of ATSIC, spoke against having a document that does not address indigenous rights, existence, cultural heritage, land, customary law, and self-determination,(81) and in his introduction to the 1997-98 ATSIC Annual report, he observed:

The leader of the Federal Opposition, Kim Beazley, responded to Mr Howard's new commitment by saying it would be tested by the Government's response to the native-title legislation which was before the Western Australian Parliament and would need federal parliamentary endorsement, and by Mr Howard's capacity to handle the issue of 'making atonement for the stolen generation'.(82) Similarly, the former Aboriginal and Torres Strait Social Justice Commissioner, Mick Dodson, described an apology to the stolen generation as central to reconciliation, and included in the reconciliation agenda a settlement of land questions (beyond that offered by the Government's Native Title Amendment legislation)(83) and a narrowing of the socio-economic gap ('we can't say we have reconciliation when our life expectancy is 20 years less than other Australians and our infant mortality is four or five times higher').(84) The chair of the Council for Aboriginal Reconciliation Council, Evelyn Scott, also declared these same two issues as central to Reconciliation.(85) Peter Yu, the executive director of the Kimberley Land Council, was reported as saying 'You can't expect us to open our hearts on reconciliation while we're being kicked in the guts'(86) and argued that the following principles are essential to a Document of Reconciliation:

• constitutional recognition and protection of Indigenous rights
• recognition of traditional customary law within the Australian legal system
• the development of an agreed document on Australia's history
• symbolic protocols recognising the special status of Indigenous People within the Australian nation
• the establishment of a substantial long-term capital fund that compensates Indigenous People for past dispossession and provides economic security, and
• the establishment of a national funding formula that delivers community infrastructure and services on an equitable basis.(87)

Aboriginal activists Murrandoo Yanner and Charles Perkins, speaking at a 'World Indigenous Pathways' conference in Toowoomba on 1 December, called for a boycott of the Sydney Olympics 'unless the Howard Government addressed reconciliation' and Perkins called on the Prime Minister to make a formal apology. 'Without this apology there can be no reconciliation'.(88)

Five Aboriginal leaders sympathetic to the Federal Government even joined in the call for the Prime Minister to 'kick start' the reconciliation process with a formal apology to the stolen generation.(89)

Senator John Woodley, an Australian Democrat and member of the Council for Aboriginal Reconciliation, argued that the Prime Minister's expression of commitment 'will prove hollow unless backed up by meaningful action' and called for a formal apology, support for self-determination, a document of reconciliation which has legal and constitutional backing, more fully addressing of indigenous disadvantage and supporting native title and an improvement in relations between non-indigenous and indigenous leaders.(90) Similarly, the Jesuit Social Justice Centre director Frank Brennan, has suggested the Government attempt to mend fences with moderate Aboriginal leaders and, on the question of outcomes, has advocated a new preamble to the Constitution:

Indeed, although in the February 1998 Constitutional Convention delegates voted to restrict the Convention's agenda to the questions of whether Australia should become a republic and, if so, what form it should take, there was broad cross-sectoral support for including an acknowledgment of Aboriginal and Torres Strait Islander people as the original inhabitants and custodians of Australia. The ATSIC Board included the following in its broad goals for constitutional change:

The intended conclusion of the reconciliation process on 1 January 2001, the centenary of the Australian Constitution, made it almost inevitable that many would debate the possible relationship between the Constitution and the reconciliation process-and in particular the document which it is likely to produce. In November 1998 Professor Cheryl Saunders, Director of the Centre for Comparative Constitutional Studies, contributed to this debate with the identification of several possible scenarios. Firstly, the constitution would remain unchanged and the Commonwealth, using its 'races' power in section 51(26) might pass legislation providing for a document of reconciliation, 'treaty' or 'agreement' (in New Zealand the Treaty of Waitangi manages to have considerable import while standing completely apart from the other constitutional instruments). Secondly, the constitution might be altered to authorise the Commonwealth (and, if required, the States) to enter into a document of reconciliation with the indigenous peoples of Australia (just as section 105(A) authorises agreements between the Commonwealth and the States with respect to public borrowing)-making recourse to section 51(26) unnecessary. Thirdly, the 'republic' constitutional referendum proposed for 1999 might also propose including in the constitution a preamble which acknowledges indigenous people's original occupancy and custodianship of Australia, and perhaps enumerates these people's 'continuing rights'.(93)

The End of 1998/Beginning of 1999 and a Plethora of Problems

November 1998 ended with the members of the Council for Aboriginal Reconciliation feeling positive about their first meeting since the election with Mr Howard. Although all conceded some areas of disagreement remained, Council Chair Evelyn Scott said she was impressed by his sincerity and Council Deputy Chair Sir Gustav Nossal said 'He's moved a big distance from where he was in 1997'.(94) Mr Howard committed an additional $2.4 million to the Council to help organise a national event on 27 May 2000 at which a document would be presented.

Over the next two months, however, 'the road to reconciliation' appeared to be obstructed not simply by the big rhetorical questions, but by a range of smaller issues.

• the response to the United Nations World Heritage Committee report on the impact of the Jabiluka uranium mine on Kakadu, a report which recommended against the project on both environmental and cultural grounds
• the effect of the Federal Government's proposed changes to Abstudy, aligning it closely with Youth Allowance, on indigenous educational outcomes
• the possibility that the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998, before Parliament, represents a withdrawal of Commonwealth involvement from the area of indigenous heritage protection and fails to treat the protection of Aboriginal heritage as 'an important national interest in itself'(95)
• the Federal Government response to the native title legislation before the Western Australian Parliament, legislation which requires federal parliamentary endorsement, and how will it view the WA and NT joint legal challenge to the Federal Court's recognition of the native title of the Miriuwung and Gajerrrong people Western Australia and the Northern Territory
• the Federal response to the NT Government's decision to cut funding to the bilingual education program for Aboriginal children, given that most reports over the last decade, while noting shortcomings in the program's success as a means for building transferable academic skills and noting difficulties in maintaining a focus on this objective while also having the program used as a means of cultural maintenance, have not advocated an end to the program.(96) The organisation Community Aid Abroad wrote to federal Education Minister David Kemp urging him to intervene to prevent the NT government from ending the programs and suggested that as a signatory to several international covenants recognising international standards for the protection of human rights the Federal Government had an obligation to ensure adequate and appropriate education for all Australians(97)
• the appropriateness of the many Aboriginal people killed in punitive expeditions during the colonial period being honoured within the precincts of the War Memorial-a move resisted by the War Memorial Council and Returned Soldiers League but supported by others such as Paul Turnbull, Associate Professor of History and Politics at James Cook University(98)
• the Government's plan for a new ATSIC electoral system, not supported by the ATSIC Commissioners, whereby the existing nine regions would each be divided into three or five wards
• the possible removal of the Aboriginal Embassy from the lawns in front of Old Parliament House in Canberra,(99) and
• the appropriateness of the Government's response to the call from the United Nations Committee on the Elimination of all forms of Racial Discrimination for the Australian Government to report on recent developments-in particular in the areas of native title and social justice.

In this same period a report which the Sydney legal academic Dr David Kinley had produced for the Human Rights and Equal Opportunity Commission became public. Dr Kinley had found that at least 35 of the 54 recommendations in the Bringing Them Home report had not been implemented 20 months later (e.g. no moves to pay compensation to affected Aboriginal families, to fund services in all regional centres to help separated indigenous people trace their kin or to make national rules about the treatment of juveniles in the justice system). Another nine recommendations were reported to have been implemented only partially or 'patchily'. It was noted that the Federal Government had refused to legislate to make the international Genocide Convention part of Australian law and was out of step with State Governments by refusing to apologise for past child removal policies.(100)

Although up-beat after the Council for Aboriginal Reconciliation's November 1998 meeting with Mr Howard, by 5 January 1999, Council Chair Evelyn Scott was declaring she had serious concerns about the Aboriginal Affairs Minister Senator John Herron and that she 'didn't expect re