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Environmental Economics Seminar Series
Department of the Environment, Sport and Territories, 1996
ISBN 0 642 24878 8
Policy Analysis Unit, DEST
I draw the title of my paper from a line in the First Report of the Aboriginal and Torres Strait Islander Social Justice Commission, 'Social Justice is what faces you when you get up in the morning. It is awakening in a house with an adequate water supply, cooking facilities and sanitation' (ATSISJC 1993, 10).
I am going to assume that social justice and equity are coextensive or nearly coextensive for the purposes of treatment, opportunities, and outcomes. I do not assume that equity is treating individuals identically. Human beings are not identical. On the most elementary factual level, they are different heights. To address equitably the height differential among people demands, for example, that public pay phones are at different heights so that people in wheelchairs can reach and use them in addition to basketball players.
Nor do individuals have identical ways of satisfying similar needs. That I am hungry and have 200 grams of muesli when I get up in the morning does not mean that you must have 200 grams of muesli when you get up in the morning. Although equity does not demand that you have muesli for breakfast, it does hold that you should not be denied muesli, if you want it, without good reason.
To insure the ideal of equity for some people often means that they are treated in different ways. For example, under Medicare all Australians are entitled to a pace maker. That is, if one person needs a pace maker then anyone who needs a pace maker should have the opportunity to have one providing a sufficient number of pace makers are available. By the same token, simply because one person needs a pace maker, does not mean that every person should have a pace maker. Equity is not uniformity. Thus equity of opportunity may mean denying those who have no need, so that those who have a need can have the opportunity.
Equity is not about treating people identically or uniformly. Without delving into theories of equity, it is about treating them in a way that provides them with or at least does not deny them equal opportunities, among other things. The point here is to illustrate that equity is not about identical treatment, but about not depriving individuals of equal opportunities or achieving similar outcomes for unjust and unwarranted reasons. Equity is a moral idea, not an assertion of fact. There is no logically compelling reason for assuming that a factual difference in ability between two people justifies any difference in the amount of consideration we give to their needs and interests.
The principle of the equality of human beings is not a description of an alleged actual equality among humans: it is a prescription of how we should treat humans (Singer 1977, 24).
Equity is 'the commonplace experience of most Australians' (ATSISJC 1993, 10). But Australian Aboriginal and Torres Strait Islander peoples are the 'most disadvantaged group within the Australian community' (ESD Chairs 1992). In terms of health, housing, employment, education, and other social indicators Aboriginal and Torres Strait Islander peoples are unacceptably below Australian standards. Of particular concern is the marginal economic status of Aboriginal and Torres Strait Islander women and the declining labour market position of Aboriginal and Torres Strait Islander people. Only 72 per cent of Aboriginal and Torres Strait Islander men and 44 per cent of Aboriginal and Torres Strait Islander women are in the labour force, that is working or attempting to find a job, as compared with the general population where 75 per cent of men and 48 per cent of women are in the labour force. Unemployment among Aboriginal and Torres Strait Islander peoples is 38 per cent (ABS 1995, 45).
Life expectancy for 'Aboriginal and Torres Strait Islander males at 57 years is 17 years below the life expectancy for the total Australian males [sic] population. For Aboriginal and Torres Strait Islander females the life expectancy is 65 years compared to 80 years for the total female population' (ATSIC 1994, 8).
Two per cent of all Aboriginal private dwellings do not have running water; two per cent do not have electricity or gas connected; three per cent do not have a toilet; and, four per cent do not have bathing facilities in the dwelling, however, half (two per cent) have access to a communal bathroom or shower' (ABS 1995, 26).
Health, housing, employment, education, lack of self-determination, and dispossession from land can be turned into a self-perpetuating causal cycle. This cycle also contains environmental problems 'directly effecting a large portion of the population (not just Aboriginal and Torres Strait Islander peoples) and adding to social equity problems... [T]hose who are most environmentally disadvantaged are usually also likely to be the most economically and socially disadvantaged' (DEST 1993, 97).
The Royal Commission into Aboriginal Deaths in Custody concluded that improved living standards in most communities will not be achieved without security of land tenure and self determination (RCIADIC 1991, 19-20). Enhanced environmental circumstances, community control and improved delivery of health, housing, education and other social programs also depends, to a considerable extent, on the security of land title and the perceived level of self determination within the indigenous communities receiving these programs. The Commonwealth, State and Territory governments have given support to, and in some instances implemented, the recommendations made by the Royal Commission into Aboriginal Deaths in Custody relating to land needs (RCIADIC 1992, 1271-1291).
In other words, to address the cycle of health, housing, employment, education, and social inequities (the cycle of poverty) requires addressing among other things - land needs. The reason for this lies in the foundations of Aboriginal and Torres Strait Islander world views. The Royal Commission into Aboriginal Deaths in Custody states in its discussion on the importance of land: 'Aboriginal attachment to land is non-transferable, and relates to the particular land itself, in a way which is connected with their religious beliefs and with the renewal of social life' (RCIADIC 1991, 473). Aboriginal attachment to land is non-transferable because for each group there are specific ceremonies, songs, legends and other cultural and spiritual ties that link a specific group to a specific 'country'.
To understand Aboriginal cosmological beliefs about the nature of humans, the condition of human life and the existence out of which the diversity of the universe sprang, it is imperative to understand something of the complex interrelationships among living people, their country, their totems, and their ancestral beings as embodied in the principle of The Dreamtime or The Dreaming.
Traditional Aboriginal ethical norms, values and ideals are founded in The Dreamtime. The Dreamtime is both an active creation period, when the world was given shape and the norms, values and ideals of Aboriginal people were fixed like the landscape, and a continuous passive time now 'existing alongside secular time but not identical with it' that reaffirms the norms, values and ideals set during the creation period (Berndt 1974, 8). In the creative phase the moral universe was established and fixed once-and-for-all-time. The Dreaming 'determines not only what life is but also what it can be' (Stanner 1979, 29).
In the Dreamtime genesis, the world was without form, but it was not void. Unlike the Biblical Genesis, creation in The Dreaming is not ex nihilo , but a transformation and culmination of a formed, but featureless world already existing. No explanation is given, nor thought needed for existence prior to The Dreaming. Perhaps this is because taken as a whole The Dreamtime stories of the Aborigines 'deal less with origins as such than with the instituting of relevances - the beginnings of a moral system - in a life which already was' (Stanner 1960, 266). The Dreaming is not a theory of mystical explanation of moral origins, but an account of what Stanner calls: 'the principle of assent to the disclosed terms of life', which governs the ritual behaviour and descriptive statements about the moral relations among people, their 'country' and other species. In other words, Aborigines are not attempting to analyse why things are the way they are, but are accepting Dreamtime stories as demonstrations of the way things are.
The agents of change or transformation were the ancestral beings.(see note 1 below) Ancestral beings are usually area specific. Their impact and significance varied regionally. Very few, if any, ancestral beings were known throughout the continent. Although their deeds may be repeated at another location, each deed is always fixed to a specific geographical location. These ancestral beings had limited, or perhaps more accurately, specific powers. Two of their superhuman powers were the creative capacity to transform and give definition to the world, and the ability to change their own shape. Their creative capacities extended over the physical and moral realms:
The mythical beings are believed to have been responsible not only for creating the natural species, which included man, and much of the physiographic features of the country associated with them. Importantly, also, in this context, they are believed to have established an Aboriginal way of life, its social institutions and its patterns of activity: in other words, they established a moral order (Berndt 1970, 216-217).
The Dreamtime heritage emphasises two complementary doctrines: 'the fixation or instituting of things in an enduring form, and the simultaneous endowment of all things - man, and his condition of life - with their good and/or bad properties' (Stanner 1979, 115).
The Dreamtime provides an aetiology of landscapes while the landscapes are empirical, irrefutable proof of the existence of The Dreamtime. The argument is circular, but stories of The Dreamtime are accepted as axiomatic and do not depend on empirical proof. Empirical 'proof' functions as a reassurance, not a guarantee.
In giving shape and definition to the landscape the ancestral beings created the meaning of the country. Each Aboriginal group has many myths about the creation of their country or land by their ancestral beings. 'From the Aboriginal point of view, the two (land and the mythical characters) are inseparable' (Berndt 1974, 9). Aborigines hold that there is a direct connection between themselves and their ancestral beings, and because they hold that their country and their ancestral beings are inseparable, they hold that there is a direct connection between themselves and their country. Chairperson of the Northern Land Council, Galarrwuy Yunupingu describes the land as a foundation. He says it is a foundation that 'gives me the identity that I belong to something from which my spirit actually came out' (Galarrwuy Yunupingu 1980, 12).
1 Other names for ancestral beings are cultural heroes, deities, mythical beings, gods, spirit beings, or creative ancestral beings.
Thus it is easy to understand why country is so important and is non-transferable. Events took place at specific locations. People are connected to these places through these events. They have very strong spiritual and cultural connections to their 'country'. Each person with a connection to a site of significance has a custodianship or responsibility for maintaining that site. The effect is to parcel out the 'country'. No one owns the land in a fee simple sense, but those of that land have a collective right to use the land in a way similar to the 'commons' of Britain. And those who use the land have a collective, but distributed, responsibility to protect and maintain the land.
Thus the Mabo decision (Mabo vs Queensland (No 2) (1992) 175 CLR 1) rewrites history in acknowledging that these connections existed when Europeans with their very different concepts of land ownership and land use settled on the continent and that these Aboriginal connections are as valid an expression of land 'ownership' as the European concepts that attempted to displace them.
While this attachment to land is non-transferable, practice is mutable. As already noted the terms of existence are disclosed and fixed-for-all-time, but the particulars of practice are not. Justices Deane and Gaudron in their opinion in Mabo vs Queensland , were of the view that:
The traditional law or custom [by which the content of Aboriginal title is to be ascertained] is not, however, frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.
'While the existence of Aboriginal rights is to be ascertained as at the date of the acquisition of sovereignty, the means of exercising those rights are not limited to the means utilised at that time. In particular, the use of present day tools in the harvesting of plants, modern transport and firearms in hunting animals, boats and nets made of present day materials in fishing still comprise the exercise of a traditional right, albeit in a modern way. To hold otherwise would be to commit Aboriginal peoples to a living archaeological museum' (Sweeney 1993, 115 -116).
The High Court decision of 2 June 1992 on Mabo v Queensland rewrote history by overthrowing the doctrine of terra nullius. Terra nullius , meaning land belonging to no one, was the legal fiction that in 1788 the land was a wilderness, neither owned nor affected by humans, and the people were mere incidentals on the landscape. Or as Noel Pearson has stated so succinctly, 'legally invisible vermin'.
A salient point about native title is that the identity of Aboriginal and Torres Strait Islander people comes from their association with country. The importance of the demise of terra nullius is not solely the recognition that the land was owned, but the recognition of the existence of Aboriginal and Torres Strait Islander people. Their very identity is bound up with their land. Without attachment to their land, they are not merely dispossessed, they are without identity.
With land comes meaning. With land comes land management. Land management for Aboriginal people is a complex of traditional ideas and attachment to land, an understanding of contemporary environmental problems, a desire for self-management and an awareness that all of these factors are interrelated. The result of these activities for Aborigines is ''country'; land cared for, known, named and managed on a sustainable basis by its owners' (Head 1992, 52).
For instance, the Kowanyama and Malanbarra communities, who manage their traditional lands, see land management and self-management as a complex of rights, including:
These are rights that no Australian would reasonably deny another Australian. They are rights that all Australians should or do share; rights all Australians expect as part of the Australian way of life. Yet Aboriginal Australians are still calling for them. There is nothing odious in asking for these rights.
Equity is 'essentially concerned with rights rather than compassion' (ATSISJC 1993, 10). If possessing traditional 'country' or the ability to participate with equity in the management of traditional 'country' secures rights that other Australians take for granted, then it is in the interest of all Australians to support the decision on native title, because it reinforces a guarantee of the rights of every Australian.
The Council of Australian Governments (COAG) recognised this, when they made the following statement in 1992:
The Governments of Australia recognise the need of all governments to at least maintain total current effort on Aboriginal and Torres Strait Islander programs if the disadvantages experienced by Aboriginal peoples and Torres Strait Islanders are to be overcome and their needs met (COAG 1992, 8).
To repossess traditional land is to restore to Aboriginal people a personal dignity and a personal identity connected to that land. 'Many people believe the Mabo decision has given Aborigines special rights not available to other citizens. The truth is that the Mabo decision... was the minimum that could have been given with any decency. Far from giving Aborigines greater rights than other people, it has left them with less. From 1788, all citizens in this country have had their title to land protected by law - all that is except Aborigines, whose 40,000-year-old native title was not even recognised' (Wootten 1993, 17). The decision on native title is a boon to human rights. What Prime Minister Paul Keating declares to be 'a tremendous opportunity for evening the nation' (1993).
The denial of equity to one group of Australians diminishes all Australians.
Aboriginal and Torres Strait Islander Commission (ATSIC). (1994) Indigenous People Today: A statistical focus by ATSIC Regions. Canberra: ATSIC.
Aboriginal and Torres Strait Islander Social Justice Commission (ATSISJC). (1993) First Report 1993 . Canberra: Australian Government Publishing Service.
Australia. Royal Commission in Aboriginal Deaths in Custody. (RCIADIC) (1991) National Report: overview and recommendations by Commissioner Elliott Johnston, QC . Canberra: Australian Government Publishing Service.
Australia. Royal Commission in Aboriginal Deaths in Custody. (RCIADIC) (1992) Aboriginal Deaths in Custody: response by governments to the Royal Commission, vol 3. Canberra: Australian Government Publishing Service.
Australian Bureau of Statistics (ABS). (1995) National Aboriginal and Torres Strait Islander Survey 1994, Detailed Findings. Canberra: Australian Bureau of Statistics.
Berndt, R.M. (1970) 'Traditional Morality as Expressed Through the Medium of an Australian Aboriginal Religion'. Australian Aboriginal Anthropology: modern studies in the social anthropology of the Australian Aborigines . R.M. Berndt, ed. Nedlands, W.A.: University of Western Australia Press for the Australian Institute of Aboriginal Studies, 216 -247.
Berndt, R.M. (1974) Australian Aboriginal Religion . Leiden: E.J. Brill.
Council of Australian Governments (COAG) (1992) National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders, Perth, WA, 7 December 1992.
Daphney, Harry and Francis Royee. (1992) 'Kowanyama and Malanbarra Views on Nature Conservation Management.' In Aboriginal Involvement In Parks and Protected Areas , Birckhead, Jim, De Lacy, Terry, and LauraJane Smith, eds. Canberra: Aboriginal Studies Press: 39-44.
Department of the Environment, Sport and Territories (DEST) (1993) The Environment Portfolio. Canberra: Australian Government Publishing Service.
Ecologically Sustainable Development Working Group Chairs. (ESD Chairs) (1992) Sectoral Issues Report . Canberra: Australian Government Publishing Service.
Galarrwuy Yunupingu, J. (1980) 'Aboriginal Land Rights'. Counterpoint Forum, Wednesday, 29 October: 11-14.
Head, Lesley. (1992) 'Australian Aborigines and a Changing Environment - Views of the Past and Implications for the Future.' In Aboriginal Involvement In Parks and Protected Areas, Birckhead, Jim, De Lacy, Terry, and LauraJane Smith, eds. Canberra: Aboriginal Studies Press: 47-56.
Keating, Paul. (1993) Interview on ABC's 4 Corners . 31 May.
Singer, P. (1977) Animal Liberation. London: Granada.
Stanner, W.E.H. (1960) 'On Aboriginal Religion'. Oceania, 30: 245-278.
Stanner, W.E.H. (1979) White Man Got No Dreaming: essays 1938-1973. Canberra: Australian National University Press.
Sweeney, D. (1993) 'Fishing, Hunting and Gathering Rights of Aboriginal Peoples in Australia'. UNSW Law Journal, 16(1): 97-160.
Wootten, Hal. (1993) 'A cheer for the Mabo nudgers'. Sydney Morning Herald, 11 May: 17.