Brennan Justice Talks 2021 Indigenous Justice and Treaties with Special Guest Tony McAvoy SC

00:02

Thanks, Crystal

00:05

so good evening everyone and welcome to the 5th  event in the Brennan Justice Talk series for 2021  

00:14

and tonight we're focusing on the issue of  indigenous justice and treaties my name is  

00:20

Dr Elise Methven i am one of the co-directors of  the Brennan Justice and Leadership program I am  

00:27

joined here by a few members of our Brennan team  one of my fellow co-directors from the UTS LSS  

00:34

Mac Middleton, Crystal McLaughlin our Brennan  administrator and most importantly our special  

00:43

guest and presenter for the evening Australia's  first Indigenous Senior Council Tony McAvoy

00:52

I would also like to acknowledge  the attendance of other members  

00:55

of our faculty and the university tonight  including our Dean Professor Lesley Hitchens

01:03

now I'd like to hand over to first nations student  

01:07

Olivia Henderson to do the  acknowledgement of country

01:13

thank you Elise uh on behalf of the Brennan  team I'd like to acknowledge the Gadigal  

01:18

people of the Eora Nation upon whose lands  our city campus at UTS stands and also from  

01:25

where I am broadcasting today I would like to  pay my respects to elders both past and present  

01:31

acknowledging them as the traditional custodians  of the knowledge of this land I would further like  

01:37

to acknowledge the traditional custodians  of the various lands on which all of you  

01:41

are attending and joining us today and pay my  respects to their elders as well thank you Elise

01:53

thanks so much Olivia for that acknowledgement of  country now tonight we have the unique pleasure of  

01:59

being connected with uts law students across  multiple years or clearly passionate about  

02:05

the issue of social justice and before we begin  formally i'd like to lay out some just light zoom  

02:13

housekeeping rules so this zoom event is being  recorded for teaching learning and event purposes  

02:21

only key speakers and those that ask questions in  discussion time will come up in the zoom recording  

02:28

you each have the ability to hide and show your  camera as well as mute and unmute your microphones  

02:35

when you are not speaking please put your  microphone on mute if you find the event is  

02:42

freezing on your zoom click hide camera  and that should free up some bandwidth  

02:48

now tonight we expect quite a large number of  students in the brennan community to tune in  

02:56

so please ensure your you that  you do turn your camera on  

03:00

when asking a question during the  discussion time we'd love to see your face  

03:06

lastly and a very important request for our  current students in order to claim your five  

03:13

roj points if i could please ask you to  all list your full name now in the chat box  

03:21

as it appears on the uts systems our brennan team  here will award you your points after this event  

03:30

you can also use the chat box after this for any  other questions during the event uh and mac and  

03:37

crystal will respond while tony mcavoy presents  so now that we've got our housekeeping settled  

03:46

i'd like to introduce you to our very special  guest and key speaker Tony McAvoy sc who will be  

03:53

speaking on the issue of indigenous justice  and treaties Tony McAvoy is australia's first  

04:00

indigenous senior council um he's a weirdy man  who is a barrister at frederick jordan chambers  

04:08

co-chair of the indigenous legal issues  committee of the law council of australia  

04:14

and assisted the royal commission into youth  detention in the northern territory during 2016-17

04:23

notably between 2011 and 2013 tony was an acting  part-time commissioner of the new south wales  

04:31

land and environment court tony has recently  been appointed as a commissioner on the new  

04:38

south wales independent planning commission  so i'll now hand over to to tony thanks tony

04:50

thank you elise and thank you olivia thank you  to the Brennan Program for inviting me to speak  

04:59

um i'm i'm quite um humbled and flattered to have  been given the opportunity to speak this evening i  

05:07

try and always take up the opportunity  to speak to students if i can  

05:12

i see students as being the key  to a better future for us all

05:22

the the bio that you've just heard um i  think is probably a bit overly long and i  

05:29

apologize for that um but i suppose that's what  happens when you find yourself in the position  

05:36

to do things which are important and then  you have the drive and the obligation  

05:41

to follow through on those opportunities and  fortunately for me i've been in in some places  

05:47

where opportunities presented themselves for  me that i have been very interested in and felt  

05:58

very passionate about pursuing  and so it i always find that  

06:02

as most people do that that makes the work a  lot easier today's topic is indigenous justice

06:11

in the context of treaties but i suppose in front  of my mind is the issue of indigenous injustice

06:21

as as a concept

06:25

i think that the the four main areas i should  tell you about that i generally focus on in my  

06:34

work and in my extracurricular sort of  interests are indigenous over incarceration  

06:43

interests treatises is another native  title both as a professional pursuit and  

06:51

i suppose and the associated issues of resource  use and heritage protection and climate change

07:02

in june this year in adelaide at i think probably  the first live conference i'd been to uh in a year  

07:11

and a half there was the australian institute  of aboriginal torres strait islander studies  

07:18

summit and during the course of  that week-long conference one of  

07:24

the theme days was on treaties and i was  asked to give a keynote presentation at  

07:31

the at that particular summit the theme of  my presentation about treaty was that we  

07:41

as first nations people need treaties  for our protection from the political  

07:48

policy circus that swirls around us i made  the point at that conference that at present  

07:59

our only real protection at a national  level is the racial discrimination

08:06

which i'm assuming most of your law students is  commonwealth legislation that's from the whitlam  

08:15

era 1975 piece of legislation legislation but we  know we know that the racial discrimination act

08:26

can be suspended we know that because we  saw it happen uh when the native title act  

08:32

was passed and we saw it happen when the uh the  northern territory intervention legislation was  

08:40

passed which was extremely discriminatory towards  the aboriginal people of the northern territory

08:49

and so on both of those occasions  the federal parliament suspended the  

08:53

operation of the racial discrimination  act and they could do that because it  

08:57

wasn't that those protections aren't  enshrined in the australian constitution

09:05

we also know that because of section  8 of the racial discrimination act  

09:11

governments can claim that their racially  discrimination racially discriminatory  

09:16

legislation or acts are special measures  for the benefit of first nations people that

09:26

that claim to an act or legislation  being a special measure can be made  

09:33

by government regardless of whether  first nations people have requested  

09:39

that benefit or not or consent to it and so we saw  in the case of maloney queen was maloney which was  

09:50

a case from palm island in north queensland  where the queensland government had had enacted a  

09:58

series of amendments to the liquor act providing  for alcohol management plans on and many other  

10:06

aboriginal communities in queensland prohibiting  alcohol from being brought into those places  

10:13

and the court found that the act of discrimination  of of restricting the the access to alcohol in  

10:24

those places which were predominantly aboriginal  was racially discriminatory but nevertheless  

10:30

it was a it was it was a special measure  for the benefit of aboriginal people  

10:35

because there were a whole range of behaviors that  were said to be associated with the use of alcohol  

10:43

um but the high court confirmed that this could be  done without the consent of the people concerned  

10:50

so we have no constitutional protection against  

10:56

legislation said to be for our benefit or  or racially discriminatory legislation that  

11:04

that can be that would ordinarily  offend the racial discrimination act

11:12

and we have no protection of our position  as first nations or first nations peoples um  

11:19

obviously we're not protected in any  substantial way in the constitution  

11:27

our rights are protected to some degree  in the native title act and in some  

11:33

aboriginal land rights legislation but those  protections can be written so i don't say that  

11:42

treaties are a panacea i don't say that they can  reduce the shocking rates of over-incarceration or  

11:50

reduce or cure our terrible rates of  preventable disease but they might give  

11:57

us some security and protection in the form  of a positive protection against injustice  

12:05

my observation from working with  first nations all over australia  

12:13

i've got clients from the torres  straits through to western australia

12:19

my observations are that of those people who  live on their own country and own their own lands  

12:29

what they see is greater control over  their country in their lives so this  

12:35

is particularly so for aboriginal people in  the torres straits torres strait islanders  

12:46

or people who don't live on their own and so in  many places around australia people were removed  

12:54

from their country at the turn of the 20th century  and placed into reserves including my grandparents  

13:05

grandparents and they were removed  from country that was a particular

13:14

particular mechanism for disposition  which was used in queensland and  

13:21

in queensland we see that there are really  

13:25

substantial former missions where people were  brought in from all over all over the region

13:35

in those places people want to be able to return  to their country to live and so i had many clients  

13:44

in queensland and for many that's their goal to  be able to create some existence on their own  

13:53

country which they and their descendants can take  the benefit of and live in some degree of security

14:07

and safety with their families

14:13

so one of the observations  i suppose i can make is that  

14:17

the real battle from my perspective is is  one for self-determination self-governance

14:26

the central feature of the  united nations declaration  

14:31

and the rights of indigenous peoples  is the right to self-determination

14:40

the the united nations declaration provides  for indigenous peoples to have the right to  

14:47

free prior and informed consent or acts  by government which affect our rights

14:56

of course the united nations declaration  and the rights of indigenous people has been  

15:03

endorsed by australia but it hasn't been brought  into domestic legislation and in fact um it hasn't  

15:16

been brought into domestic legislation  in canada new zealand australia or the us

15:26

the treaties it seems to me as a means for

15:31

gaining access to those rights which  are articulated in the international  

15:38

instruments such as the united nations  declaration the rights of indigenous

15:43

people able to be protected in a  way that is greater than having  

16:00

rights protected by mere legislation

16:11

the difficulty we have in australia is  that there are no treaties here to guide us

16:19

many of you will have read about the  batman treaty in victoria which was

16:27

ruled unlawful by by the courts some  of you will have heard of the noongar  

16:34

agreements in western australia so they were a  series of indigenous land use agreements which  

16:43

settled the single native title application over  south the bulk of south west and west of australia  

16:56

some people have described those lugar agreements  as a form of treaty for australia but in my view  

17:04

they they don't have the essential great  ingredient of securing any transfer of power

17:15

another form of agreement which  was intended to be a treaty is the  

17:23

uldra agreement which was entered  into by the narunga people  

17:30

of the york peninsula of south australia the  south australian government before the last  

17:39

change of government had announced a  treaty policy and invited a number of  

17:47

nations to participate in treaty negotiations  one of those nations was the naruto people they  

17:55

engaged me to assist them in their negotiations  and provide advice and there was a race on it  

18:03

happened very late in the term of parliament of  the government for um or their labor government  

18:11

and there was a race on to see if anything  could be fashioned prior to the election and

18:19

what became apparent to the moronga negotiating  team and me was that the negotiators  

18:29

attending these meetings on behalf of  the south australian government had not  

18:36

considered at all how there might  be any transfer of power from  

18:43

the south australian government to  the narrator they were interested in

18:51

service type regions

18:57

that were really about government agencies  doing things better and it seemed to me that  

19:05

although there was a great level of commitment  to the notion of achieving the treaty by the  

19:14

minister for aboriginal affairs in south  australia at the time klein ma an indigenous man  

19:20

that commitment hadn't translated to  knowledge and commitment of the bureaucracy  

19:30

as to what was needed to make sure so even though  the minister and the government would have liked  

19:38

to have called the agreement with the muranga  people a treaty so they could say that they  

19:44

had entered the first treaty in australia the  narunga people refused to have the word treaty  

19:53

in the document and insisted on being called  brother or agreement and that made sense because

20:02

i think it's easy to understand how having  entered an agreement that's called a treaty  

20:10

um the other people were unlikely to be invited  back to the negotiating table at any time in  

20:18

the near future to renegotiate so the contents  of the agreement were insufficient for them to  

20:29

consider naming the arrangement  of treaty so because we don't have  

20:36

treaties in australia that we can look to what  where we tend to look is to british columbia  

20:42

for guidance because of their monetary process  that process has been going on for some 20 years  

20:49

interestingly that process commenced when the  

20:56

the first nations in in british columbia through  a collective forum entered into a an overarching  

21:07

agreement with the british colombian provincial  government and the canadian federal government  

21:12

to set down some principles and the framework for  this process the bc treaty commission was created  

21:21

and there's approximately 60 first nations out  of 140 who are presently involved in the treaty  

21:30

process there the the treaty outcomes for the  few that have entered the treaties are ones which  

21:40

involve the creation of a form of  self-government government which is akin to  

21:48

a fourth tier of government  in my view it and it takes  

21:55

takes from each of the existing levels of  government that we are familiar with so from  

22:03

local government from state government from the  federal government and they have roles in taxation  

22:11

they have power in respect of environmental  protection and planning control they have roles in

22:22

child protection education health but they  also deal with issues such as parking and

22:31

purely local government issues

22:37

it seems to me that that type of that level of  self-management is what many first nations in  

22:45

australia despite a degree of self-management  which allows each nation to be able to make its  

22:52

own decisions and exist in an economically  and politically largely independent fashion

23:04

but one of the difficulties that's that i foresee  in the following the british columbian model

23:14

is that each of the transfer in respect of  

23:21

not not all but many of the areas in which  jurisdiction has been transferred from  

23:27

or recognized by the british columbian or  the federal government in the first nation

23:35

there is reserved to the provincial  government or the federal government a  

23:42

a role in terms of being the final arbiter  and so in respect of child protection for  

23:51

instance the first nation can have its own child  protection system but it needs to be accredited by  

23:58

the state the provincial government in  order to have that decision-making function  

24:06

there can be other legal processes which are able  to be undertaken in the first nation courts but  

24:14

many of them have appeal rights to the equivalent  of our supreme court in new south wales or  

24:21

into the federal jurisdiction and so whilst the  agreements that are available they're available  

24:28

online the ones that have been entered into  it whilst they don't explicitly speak of

24:37

of a

24:44

submission to the ultimate power of the  

24:48

the provincial government or the federal  government in fact the way in which they operate  

24:57

can be interpreted as some form of submission so  in australia one of the political mantras which  

25:04

exists is that sovereignty has never been seated  and i i envisaged that it will be very difficult  

25:15

for many first nations in australia to enter  into an arrangement which can be interpreted as  

25:23

agreeing to a form of domestic dependent  sovereignty which ultimate sovereignty is  

25:30

uh is seated there there are some ways around that  and many people have have spoken about it here in  

25:40

australia um but it seems to me that one of the  options for dealing with that particular problem  

25:47

is to provide for a contestant whereby the  agreements record the assertion by the first  

26:00

nation of ongoing and undisplaced sovereignty  and record the assertion by the statement  

26:08

of a lawful and continuing sovereignty  and note that the parties are

26:18

acknowledged the contest

26:23

now i accept that that's a long way  from where we are at the moment where  

26:29

the federal government won't even discuss treaties

26:36

the political position is one where

26:41

the the only jurisdictions in which  uh treaty processes are underway  

26:49

are ones which are not  conservatively held governments

26:58

and if there is to be a national treaty  process in australia it seems at the moment  

27:07

that it won't happen unless there's a change of  government away from the liberal national park  

27:17

i have given you this  evening an overview of a very

27:27

detailed and technical subject  but i i i can share with you that

27:42

advocating as i do

27:51

against government policies that have the effect  in government legislation that has the effect of  

28:00

causing our children to be removed from  our families rates that haven't been seen  

28:07

since stolen generation seeing our young people  incarcerated at rates that are extraordinary the  

28:20

whole of the youth prison population in the  northern territory are aboriginal aboriginal kings

28:30

having advocated about those matters for years  

28:35

years i started out in the aboriginal legal  service in the 1980s and i remember the protests  

28:41

when john pat died in in western australia we  were street marketing in brisbane when i was  

28:50

uh when i was a law student and working in the  original labor service and that's the that's  

28:55

the death which inspired the law commission  into actual custody that was in 1987 1988

29:13

i know that our lobbying at these subjects is  we're only doing what we can at the bridges to

29:26

reduce the worst

29:30

we can't get the protection we need from just  simply participating in a system where we

29:40

against the worst aspect so we've got to  

29:44

try and pay for something bigger and  larger and better with greater protections  

29:49

so i'll leave it at that point um i thank you  very much for allowing me and inviting me to speak  

29:58

i'm happy to take every question that you'd  like to throw at me i encourage you to be  

30:07

be vocal and take the opportunity to  ask you questions thank you very much

30:19

thank you so much um tony for  sharing your insights with us tonight  

30:25

um as tony mentioned we've got plenty of time now  for questions i'd invite you all to either pop  

30:34

your hand up and ask tony a question live don't be  shy uh and of course um you can pop a question in  

30:44

the chat box as well um yeah the floor is yours  if anyone would like to ask anything at all

30:58

all right we've got a hand up

31:02

thank you robin yeah ask away thank you hi tony  lovely to see you and thank you for joining us  

31:09

tonight i was really interested in  

31:12

the framing that you gave on the possibility  of a recognition of ongoing sovereignty and  

31:18

the recognition that of the position that  sovereignty is never seeded i wonder if  

31:23

you could talk a bit more about that because i  know it is a um a concern and it will be a um  

31:31

something that needs to be uh acknowledged and  recognized and incorporated in into our position

31:39

um hi robin thank you very much

31:43

yes well um in the u.s they've had a long history  of dealing with domestic dependent sovereignty  

31:51

and they've had the benefits of  operating under federal legislation  

31:58

many uh first nations there that's meant that  they've been able to obtain economic independence  

32:05

through uh taking advantage of the federal laws  for the gaming and other other reasons they can  

32:13

they are exempt from paying paying federal  taxes and there's a whole range of um  

32:20

benefits that people are aware of and  have been dealing with for over 100 years  

32:27

in the us um in canada it's it's  not quite as clear-cut but the um  

32:38

the british colombian treaty commission  has been working and publishing papers  

32:44

and if you go to their site their website  you can see papers they've published on  

32:50

the impact of of entering into agreements and  how uh nation sovereignty can be expressed

32:59

in australia i think the that the

33:07

the grasping of sovereignty that we have is  

33:14

is almost it's one of the very few things  that we've been able to retain um you know

33:23

we've had a huge effect on our people through the

33:32

outlawing of the use of our  language our ceremonies rituals  

33:39

we've had our history stolen from  us we've had children taken away and  

33:46

for many people that claim to sovereignty  even though we we haven't been able to get  

33:52

the ownership of our land back for many of us  um is a really important bedrock i suppose and  

34:01

because of that it's i could foresee that it will  be very difficult for people to let go of it and

34:14

there is the option to proceed on  the basis that's the sovereignty  

34:21

question isn't resolved by a treaty and that the  parties to the treaty agree that it's an issue  

34:33

that the treat that the  treaty doesn't resolve and so

34:41

in my view that's not the sort of argument that  an individual first nation should be having with a  

34:48

state or federal government that's that argument  needs to be had by a very well resourced  

34:57

representative body that can speak on behalf of a  large proportion of our first nations and who can  

35:06

can match it in terms of uh firepower with  the with the state and federal government

35:13

and you know these things takes  time to develop but i i can't see

35:26

i have difficulty seeing why  any state or federal government

35:34

i just i can't see it happening that they  would acknowledge that the sovereignty has  

35:39

continued in a way which is which was not  displaced by the british sovereign justice

35:53

robert french former chief chief justice of the  high court delivered a paper in 2017 2018 which  

36:01

suggested that there could be a continuing  parallel indigenous first nation sovereignty

36:11

and but that it would be confined to  those matters which were left over  

36:18

after state and commonwealth powers  and interests had been accounted for  

36:29

and so he thought that that might apply  maybe to matters of spirituality and  

36:36

conflict marriage perhaps um i thought that that

36:45

approach was

36:50

was a little too diminished in  terms of its appreciation of the the

36:59

strength and

37:02

breadth of indigenous sovereignty i think it  i think that has to accommodate something much  

37:08

more expansive than just the crumbs that are left  over and that we that we use the negotiation table  

37:17

as a mechanism for the practical transference of  jurisdiction where we can um there is no there is  

37:27

no guidebook for this though robert um it's it's  like myself i suppose who think about these things  

37:37

regularly trying to figure out ways to deal  with our own unique situation here in australia  

37:45

and we're glad that you do charlie because  that's thank you for sharing that particular  

37:49

that point on sovereignty because i think um  it might have been there'll have to be a way  

37:56

to really accommodate that in my view anyway  i don't want to hold the time thanks for that  

38:02

thank you for your question robin and  thank you tony i really appreciate it  

38:07

we've got a few more questions coming in now  

38:11

um and a more personal one for you tony um from  erica uh she said as the first indigenous senior  

38:20

council you provide so much inspiration for a  new generation of lawyers what are your thoughts  

38:26

on quotas or other forms of affirmative action  to secure increased indigenous representation

38:36

i think in some fields and vocations  quotas are appropriate i mean  

38:42

many government agencies have  targets for indigenous employment

38:50

there's a there's a question it's questionable as  to how far you can go in terms of the professions

39:00

i don't think you can have a quota  for judicial appointments or maybe uh

39:10

appointment of doctors but um it's certainly  there are lots of arguments to be made for  

39:23

having a proactive diversity and inclusion and so  in speaking particularly about the field of law  

39:33

the legal profession um at  the present time there is a  

39:40

inquiry going on into the judicial bias in  the federal court system and so inquiry being  

39:49

undertaken by the australian law reform commission  i'm happy to be on the advisory committee for that  

39:57

inquiry that inquiry is looking at not only  bias as it occurs in court where a judge might  

40:05

be accused of apprehended bias because of some  relationship with one of the parties or witness  

40:12

but also in terms of bias within  the system as a whole and how  

40:19

notions of unconscious and implicit bias  which is unknown to exist in australia can  

40:28

infect the judicial reasoning  process and what can be done to

40:35

to ameliorate that problem and so they look  at training for judges to ensure that they are  

40:44

understand what implicit bias is how they might  stop themselves if they're if they're likely to be  

40:53

engaging in that sort of type of bias um but then  but they also talk about diversity and inclusion  

41:01

and i think that's a very important  conversation that needs to happen

41:12

on the same insane

41:16

sphere is the work that's  being done by marcel burns

41:25

i clap

41:28

area indigenous cultural knowledge and learning um  within the legal profession i'm particularly taken  

41:39

by some work that's come out of new zealand  in relation to the digitalization of the  

41:49

law degree and new zealand universities and  what they talk about there is a bi-durable um  

42:00

bi-dual legal system so their system in new  zealand they're trying to promote the education  

42:07

in new zealand law schools of of the  system as being a biodural system  

42:12

and they are they they're advocating that the  the profession and the judiciary should be  

42:23

uh trained to understand the  bi-general nature of their legal system  

42:28

and if we take those principles and apply them  to australia well we would say that there is a  

42:33

multi-journal system in australia we would say  that there is not only the the imported and  

42:41

statutory law that's created by the  parliaments of australia but there's also the  

42:46

law of the various first nations that exist  and continues to operate and be enforced and  

42:57

it's a really fundamental  change in the legal systems of  

43:02

both countries but it's a discussion  that i think needs to be had  

43:06

straight a little bit away from the question  there but i thought i'd throw that in anyway  

43:12

yeah no i mean it touches on another question that  we had from molly um that was about uh yeah the  

43:19

legal system in new zealand but it was really  interesting to hear your perspective on that  

43:24

um i think it links quite nicely to the  second part of her question which is um  

43:32

do you think there is a place for a general  governing document such as the treaty of  

43:37

um maitani in our legal system um and she  says thank you so much for your insights

43:45

i do think that there is a place for  something of a national agreement  

43:53

i and i have to say and i've said it said it  before i'm very concerned about the development of  

44:04

different trading processes in  different states and territories

44:10

because the adequacy of the  responses from the states um  

44:18

the various states and territories will be  reflected in the will reflect the various  

44:25

bargaining powers of the first nations in each  of those places and in some places it's stronger  

44:31

than others and i know from being been involved  in the negotiation of many many indigenous land  

44:39

use agreements that it's not the quality of the  agreement is not determined by the the strength of  

44:52

your client's case the extent of their  connection how traditional they are how

45:02

strong they are in their culture and  how many people live on their country  

45:08

it's none of those things the  strength and value of their  

45:12

indigenous land disagreements always  comes down to their bargaining power  

45:17

their capacity at the bargaining table to exert  power and influence over their opponents at the  

45:25

negotiation table and that's the state and so it  seems to me that if we are going to ensure that  

45:32

everybody benefits in a in an equitable  manner from these treaty processes that  

45:38

it's critical that we have a national treaty  framework that gives some guarantees of minimum  

45:48

outcomes and and appropriate resources to  ensure that um everybody comes into it with the  

45:56

with at least some bargaining power and so  i i wondered about the position that we're  

46:02

in at the moment where the federal government is  refusing to to engage on this issue but i think i  

46:09

think that's really interesting um way that you  talk about that i mean in terms of bargaining  

46:18

power um when when looking at our native title  claims in australia um if we compare new south  

46:26

wales to the northern territory do you think um  i guess in the northern territory claims seem to  

46:34

go through the court system a little bit quicker  and a little bit more successful what do you think  

46:39

are some of the reasons why native title claims in  new south wales have those extra few few hurdles

46:51

new south wales

46:54

the way in which  

46:57

sorry let's start again the native title  claims process in australia is one which

47:06

is particularly onerous on first nations  when he was on the high court bench  

47:15

justice french as his chief justice  french as he was then wrote paper about  

47:20

the burden on first nations being so onerous  that it was appropriate that we consider  

47:27

developing a presumption of connection  um a rebuttable presumption that people  

47:35

had connection and it was a matter for the state  to disprove it because the burden was too high  

47:43

for first nations and there was a australian  law reform commission inquiry into that and  

47:49

the inquiry came back with a  recommendation that perhaps  

47:56

we didn't need to develop a presumption but rather  rely upon the development of systems within the  

48:05

federal court make appropriate inferences which  meant that those burdens weren't so onerous well

48:13

the problem is of course that um the judiciary is  made up of a host of individuals and some judges  

48:21

are quite willing to make the inferences the  numbers are are reluctant and in new south wales  

48:30

because you have to prove the continuity of your  law and custom over from the from the time of

48:40

sovereignty and in new south wales  sovereignty pretty much means sovereignty 1788

48:47

we're talking about 10 generations of people

48:52

um in the northern territory a  lot of the a lot of the places the  

49:00

the british didn't arrive until the late 1800s

49:06

and so what you're talking about is people whose  grandparents remember when the british arrived  

49:11

and they only have to prove their  continuity of connection and their  

49:17

continuity of their law and custom for two  or three generations so it's that much easier  

49:23

but that doesn't mean to say that the  claims in new south wales could not be  

49:31

dealt with a lot quicker and so what we have  in new south wales is um is is a system where  

49:42

the government has has failed over decades to  adequately fund the department in government  

49:51

that deals with the aboriginal land claims  under the average land rights act and the  

49:55

native title claims so if you look at um there's  a report that came out last year prepared by  

50:05

chris ronalds under a independent  inquiry she found that there there were  

50:12

something like 39 000 aboriginal land  claims uh unresolved there's a claim  

50:20

that's unresolved from  brewarana for the warren common

50:28

that was made i think in 1985 that hasn't  been resolved and and the same can be said for  

50:37

the native title system in new south wales and if  you you know if you wanted to you could look at  

50:43

the western bundellung native title determination  from 2018 i think and there are comments there by  

50:53

justice justice jago of the federal court i think  in paragraph 40 or 41 i've quoted a few times  

51:02

where she says this is unacceptable totally  unacceptable that people should have to wait  

51:09

15 years for a native title or  whatever the number was in that case  

51:16

she said it in many cases because  that's how long it takes new south wales  

51:23

and and in my view it's mostly because of the  inadequate resourcing of the agencies to do it  

51:30

and that is a denial of justice outright denial of  justice where the laws are created by parliament  

51:41

for the distribution or redistribution of land  or recognition of rights and the uh and yet  

51:50

um through the executive government and the  administrative government they failed to  

51:54

adequately source um the government to do its  job so straight from the question no no yeah  

52:04

so thank you tony um we have another live question  actually um from olivia so yeah go go ahead olivia

52:14

hi tony thanks for your talk um i was just  wondering a little bit more about the um canadian  

52:22

agreements that you were talking about and  that kind of fourth level of government  

52:27

and whether that has jurisdiction over a certain  land area or over people and whether you think a  

52:34

system like that could work in the australian  context yes i do think it could work in the  

52:40

australian context the question is a good one so  the environmental and planning laws tend to be um

52:51

confined to their indian lands as they call the  lands that they've been able to acquire through  

52:58

agreement or their land claims  processes or previous treaties  

53:04

the they but they also have uh  jurisdiction over this citizenry and so  

53:12

it might be that they have jurisdiction  over their citizenry within  

53:16

their territorial boundaries even though  that that includes lands that they don't own  

53:22

um so it's it's not um it's not a straightforward  territorial carve out which makes it a bit more  

53:32

complex but it's nothing it's it's  no more complex than um than you know  

53:41

the system that we have here where you can park  your car at uh in a in a ticketed parking area  

53:49

and get a ticket from a council officer but  if you if we reverse out of that car park  

53:55

and you crash into something then you get a ticket  from a state officer from a police officer and not  

54:01

the council officer there are many examples  where we deal with overlapping jurisdictions  

54:08

in australia it would it wouldn't be anything  that we haven't dealt with or couldn't deal with

54:17

yeah so and i i think that um absolutely  it could work and i i look forward to  

54:25

to sitting with some of my people at my country  making decisions about what happens at home

54:37

thank you

54:40

thank you tony um we've got about  five minutes left so maybe time for  

54:46

one more quick question um but we've got  one from maya and she has said uh you made  

54:52

the point that indigenous children are being  taken away from their parents at record levels  

54:59

not seen since the stolen generations is there  anything we can do in the immediate future  

55:05

to tackle this issue whilst working towards  a treaty and or constitutional recognition  

55:13

just to be clear i i do not say for a  moment that we need to uh back off on  

55:23

all the other advocacy that we are doing  we need to be going as hard as we can  

55:30

trying to slow down and if we can't stop  the effects of really often quite brutal

55:43

legislation and policy with respect  to the protection of children i think

55:57

it's difficult because the the danger  for children is really embedded in  

56:05

australian policy and mindset in a way  that is is very deep-seated so you know

56:20

aboriginal children are removed from their  families largely for what's all neglect

56:32

or

56:34

rather than physical abuse

56:40

and that comes down to  public views about parenting  

56:48

and so in the northern territory royal commission  into the protection detention of children which i  

56:56

was seeing the council system we looked very  closely at this in the northern territory and

57:05

we it was very apparent to us that where  you have families who are over living in  

57:14

very overcrowded conditions because there's  not um and who are chronically impoverished

57:26

a social worker

57:30

is not going to understand the benefits for  that child in remaining in their family in  

57:36

their community where they speak their language  and they haven't have a skin name and they they  

57:44

grow up in the company of their  peers and they go through more

57:51

as opposed to

58:06

doesn't have enough food and  there these are these decisions  

58:11

that are being made all the time and  children are being removed because  

58:16

because the system doesn't provide adequately  for the value of our culture and our way of life

58:30

and i don't i'm not sure how you change that

58:35

it's a very deep-seated thing that um  we are constantly dealing with that

58:43

yeah i mean this this may be heretical but  i am i have been and continue to be troubled  

58:52

by the close the gap process simply  the name of it i find insulting um we  

59:02

it's it's in the insinuation is that everything  will be good for us if we are more like the  

59:07

white horse and that's what the child removal  process is about it's a process of assimilation  

59:16

and it's it's it's hard and it will be the  subject of another commission in another 10 years

59:29

but i don't know the answer to that but  it's it's a that that issue is one which  

59:33

really needs to be solved at a higher level  of government i think then so i mean you can  

59:40

certainly um contact your local members  and the ministers and complain about it  

59:48

yeah and let them know that that you're a law  student and you're worried about it you think  

59:53

that more could be done but it's it's a big  problem it's one of the big issues i think

60:02

it's that yeah it's a points of colonialism  yeah yeah um well thank you so much um for  

60:10

answering all of those questions  tony uh we really appreciate it  

60:15

uh i'm with yeah we're running a little bit  over now but on behalf of the uts faculty of law  

60:22

the law student society and all of the students  here tonight i would like to thank tony mcavoy  

60:27

senior council for sharing your time and  expertise with all of us here tonight your  

60:33

insights have shed further light on indigenous  justice issues and the importance of treaties  

60:40

on a personal note i hope that someday soon we do  have the will as a country to implement a treaty  

60:46

and as you put it i hope that this will one day  act as a positive measure to protect against  

60:52

injustice uh thank you so much tony as a  remind thanks tony as a reminder tonight's  

61:00

event accrues five roj points which will be  awarded internally to each of you in your  

61:06

career hub brennan workflow i would like to extend  an invitation for you all to join our next justice  

61:13

talk on the 9th of september with special guest  and uts law alumna kate eastman senior council

61:23

that concludes tonight's talk thank you so much  everyone thanks everyone thanks tony i just wanted  

61:29

to second max um call for the treaty and you've  given us so much to think about so we're all going  

61:36

away we take so many takeaways from that uh and  hopefully we will try and aim for something bigger  

61:43

and better and understand that involves a  transfer of power so stay safe everyone um  

61:51

and yeah we look forward to seeing you at  the next event thanks tony thanks everyone  

61:57

thank you tony thank you everyone

62:11

you