NT stolen generation in court
By Rebecca Meckelburg
DARWIN — On March 1, 1999, Cubillo and Gunner v the Commonwealth opened in the Federal Court in Darwin. These test cases represent the interests of some 700 stolen generation people in the Northern Territory and will affect the interests of all people of the stolen generation.
The cases are an attempt to show that the government policy earlier this century of removal of Aboriginal children from their families was racist (based on the colour of the children's skin) and an attempt to "assimilate" or wipe out their Aboriginality. The cases will highlight the treatment of Aboriginal children in the institutions in which they were placed, how they were exposed to neglect, lack of care and affection, and how they suffered from potential and real violence.
The commonwealth is the defendant because it was a commonwealth law, the Aboriginal Ordinance, that enabled the forced removal and subsequent institutionalisation of Aboriginal children of "mixed" descent in the NT. This law was replaced in 1957 by the Welfare Ordinance, which basically continued the same policy under another name.
Barbara Cummings, spokesperson for the Northern Territory Stolen Generation Aboriginal Corporation, said: "The Australian public has been extremely sympathetic and has provided a lot of goodwill in our fight for justice ... We are going to the Federal Court to force the government to deal with the issue and take some responsibility for what happened ...
"Before the [1995-97 National] Inquiry [into the Separation of Aboriginal and Torres Strait Islander Children from their Families] gave it the word "genocide", I referred to the events simply as 'wiping us out'. The government tried to wipe us out.
"The Australian public must understand that the Federal Court case is not the only issue affecting the stolen generations. Government must also make a genuine apology. Government must accept that many Aboriginal people have missed out on rights to land because of the past policy of removing the child from their land. Most importantly, there must be a genuine interest there to help the victims with the little resources which have been made available."
Cummings added: "We want to emphasise to the Australian people that the policy of removal is not only a historical fact. The removal policy has contemporary effects on our people. People every day are continuing to suffer because of what happened. Government institutions continue to this day to treat us with contempt.
"Look at the way government has ousted us from land rights. The colour of our skin is still being used to discriminate against us.
"The commonwealth continues to deny us of our identity by not including us within the Land Rights Act, or in the more recent Wik legislation. Our identity is still subject to a statutory definition. It is patronising for us Aboriginal people to have to continue to justify to this day our Aboriginality."
The inquiry into the stolen children was established by the federal attorney-general in 1995. It was conducted by the Human Rights and Equal Opportunity Commission and published its findings and recommendations in 1997.
It concluded that the forcible removal of indigenous children was a gross violation of their human rights. It stated that the practice was racially discriminatory and continued even after Australia, as a member of the United Nations from 1945, committed itself to abolish racial discrimination.
The inquiry also concluded that forcible removal was an act of genocide which contradicted the UN Convention on Genocide, ratified by Australia in 1949. That convention specifically includes "forcibly transferring children of [a] group to another group with the intention of destroying the group".
The recommendations of the national inquiry included that the government had a responsibility to make "reparation" to those affected. In international law, reparation has five components:
- acknowledgment of the truth;
- guarantees that these human rights will not be breached again;
- returning as much as possible of what has been lost (for example, allowing stolen generations the right to claim land by amending the native title legislation);
- rehabilitation; and
- compensation.
The government's response to the inquiry has been limited and has exposed its real attitude to Aboriginal people. The Howard government has consistently refused to apologise to the stolen generation and the Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron's official response to the release of the report was to dodge its implications by refusing to acknowledge responsibility for the actions of past governments.
So far, the government has addressed only one of the issues implied in making reparations — providing rehabilitation services in the form of counselling and mental health support to Aboriginal people affected by the stolen generation experience.
The Northern Australian Aboriginal Legal Aid Service Stolen Generation Litigation Unit was established to represent the interests of the stolen generation people in the NT. The Cubillo and Gunner cases were chosen as "lead cases" in an attempt to establish a legal precedent that would have the potential to benefit all members of the stolen generation.
The potential consequences of these cases succeeding are far reaching, not just for the stolen generation of the NT, but for all members of the stolen generation and their families throughout Australia.
The government's lack of response to the recommendations of the national inquiry have left people of the stolen generation with no legal recourse other than to use the common law right of all citizens to compensation for harm caused by illegal actions of governments. Compensation would assist individuals and their families to continue to rebuild their lives and culture, and to tackle the many ongoing social, economic and health problems facing Aboriginal people.
But the Cubillo and Gunner cases are not only about compensation. They are also an attempt to force the federal government to take responsibility for past government's genocidal policies towards Aboriginal people.
Success in these cases would be measured in terms of establishing governments' legal responsibility for the injustices committed against Aboriginal people and for ensuring that Aboriginal people receive justice. While the court cannot order the government to apologise, a finding in favour of Cubillo and Gunner would be a serious embarrassment to the government, and would expose, yet again, its lack of commitment to justice for indigenous people and the racist nature of its policies.
While the Howard government has mouthed platitudes about the findings of the national inquiry into the stolen children, it has attempted to have the current cases thrown out on the basis of legal technicalities. The commonwealth's arguments to this end will waste weeks of court time and taxpayers' money. Meanwhile, it stalls (or blocks) Cubillo and Gunner's opportunity to publicly present their evidence and have their stories heard.
The commonwealth, while attempting to have the case thrown out of court, has also attempted to discredit Cubillo and Gunner's cases by challenging their claims to have sustained injuries while institutionalised.
The defence has also argued that most Aboriginal mothers gave up their "mixed blood" (sic) children voluntarily, to be brought up in institutions.
A media statement issued by the Stolen Generation Litigation Unit at the end of February summed up the legal situation: "These cases are of immense significance to the Aboriginal community and the Australian public. They are understood to constitute one of the biggest personal injury class actions in Australian legal history.
"We want the Australian public to know that we are forced to take this course of action. We do not want to drag our people into the courts. However, the government refuses to acknowledge our plight. The government refuses to acknowledge that we have suffered."
The statement concludes: "Dragging our people into the courts to relive the pain is no step towards reconciliation. Dragging our people into the courts and then utilising every legal argument and legal strategy to deny us ever telling the truth to the public is totally against the spirit of reconciliation."